PR955362 Note: An appeal pursuant to s.45 (C2005/1820) was lodged against this decision - refer to Full Bench decision dated 22 April 2005 [ PR957547 ] for result of appeal. AG819934 PR955362 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Metropolitan Fire and Emergency Services Board and United Firefighters' Union of Australia (C2004/6816) s.99 notification of industrial dispute Metropolitan Fire and Emergency Services Board and United Firefighters' Union of Australia (C2004/6819) s.170LW Application for settlement of dispute (certification of agreement) United Firefighters' Union of Australia and Metropolitan Fire and Emergency Services Board (C2004/6848) METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIREFIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF AGREEMENT 2002 (O.D.N. AG2002/6037) [AG819934 PR925132 ] Fire fighting services COMMISSIONER FOGGO MELBOURNE, 2 FEBRUARY 2005 Application for Order that industrial action not occur - section 127 - alleged industrial action over Union representation at Senior Station Officer briefings - concurrent application regarding meaning of employee representation provisions in Agreement. DECISION [1] This decision arises from three applications lodged with the Commission regarding the Metropolitan Firefighters and Emergency Services Board (MFESB)(MFB) holding one day briefing sessions for Senior Station Officers (SSOs). The United Firefighters Union (UFU)(the union) opposes the MFB conducting the briefing sessions. The applications. [2] On 1 December 2004, the MFB lodged an application pursuant to s.127 (2) of the Workplace Relations Act 1996 (the Act) alleging that the union had taken industrial action by issuing a Bulletin directing members not to attend the SSO briefings planned for eight (8) different days in December 2004. [3] Following proceedings before the Commission, as currently constituted, on 2 December 2004, a Direction was issued [ PR953923 ] to the effect that the briefings should continue as planned. [4] Also on 2 December 2004, the MFB lodged an application pursuant to s.99 of the Act, notifying an industrial dispute [C2004/6819] concerning briefings with SSOs. [5] On 3 December 2004, the UFU lodged an application pursuant to s.170LW of the Act [C2004/6848] stating that a dispute existed relating ". . . to the denial of the MFESB of employees' requests to exercise their rights under clause 10 of the certified agreement to have a union representative present at meetings ("Senior Station Officer briefings and meetings called "SSO ICS Skills maintenance meeting") where work regulated by the agreement is being conducted." [Form R47] [6] Ms Salmon represented the MFB and Mr Langmead was granted leave to appear for the union. Legislative Context. [7] The application by the MFB pursuant to s.127 of the Act is made under the following provisions: "127 Orders to stop or prevent industrial action (1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur. (2) The Commission may make such an order of its own motion, or on the application of: (a) a party to the industrial dispute (if any); or (b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or (c) an organisation of which a person referred to in paragraph (b) is a member. (3) The Commission must hear and determine an application for an order under this section as quickly as practicable. (3A) The Commission may make an interim order under this section. (3B) An interim order made under subsection (3A) ceases to have effect if the application is determined. (4) The powers conferred on the Commission by subsections (1) and (3A) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act. (5) A person or organisation to whom an order under subsection (1) or (3A) is expressed to apply must comply with the order. (5A) An order under subsection (1) or (3A) does not apply to protected action. (6) The Court may, on the application of a person or organisation affected by an order under subsection (1) or (3A), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation: (a) has engaged in conduct that constitutes a contravention of subsection (5); or (b) is proposing to engage in conduct that would constitute such a contravention. (7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6). (8) In this section: protected action means industrial action that is protected action for the purposes of Division 8 of Part VIB." Background. [8] The issue of the convening of SSO briefings has been in dispute between the MFB and the UFU for almost twelve (12) months. Ms Salmon provided a detailed chronology of the events concerning the proposal to conduct briefings of SSOs. [Exhibit S1] The information in the chronology was supplemented by minutes of EBIC (Enterprise Bargaining Implementation Committee) and sub-committee meetings, correspondence between the parties and other documentation including MFB policies. [Exhibits S1 - S4 and S6 - S9] The chronology is used as the basis for outlining the background to the dispute. [9] The MFB informed the UFU at a meeting of EBIC on 28 January 2004 of a proposal to hold SSO briefings. [10] On 26 February 2004, SSOs were notified by email of briefings to occur on 3, 5 and 16 March and 5 May 2004. On 2 March 2004, the UFU submitted a dispute and grievance. On 4 March 2004, the MFB wrote to the UFU confirming details of the briefings. [11] On 16 March 2004, Jim Carlisle from the MFB and Peter Marshall from the UFU met to discuss the dispute. Mr Carlisle refused the request for a UFU representative to attend the briefings. The file note of the meeting [Exhibit S6] stated that Mr Marshall raised no concerns regarding the items on the agenda for the meeting, but that he "was adamant his representatives would attend the sessions." [12] Between April and May 2004, SSO briefings was one of various matters heard before Commissioner Simmonds. Simmonds C issued a Decision on 16 August 2004 [ PR950883 ] which stated, relevant to the SSO briefings: "[72] I consider that the proposal to move from zone level meetings to a central meeting for SSOs is a change, as defined in the Agreement, if only because it has an impact on the employees' work location and the way in which work is carried out. That being so, the MFESB is obliged, by clause 11 of the Agreement to follow the procedures in clause 9 before implementing the change. [73] As there has not been the required consultation on the proposed change I am not prepared to make a determination on this matter at this time." [ PR950883 ] [13] In her written submissions [Exhibit S5], Ms Salmon stated that the UFU had appealed the Commissioner's decision but after failing in their application to stay the decision, the union withdrew its appeal. Of relevance is her submission that "By agreement between the parties, whether or not the disputes were over "extra claims" within the meaning of clause 49 of the Agreement did not arise for determination by Commissioner Simmonds." [ibid point 2] [14] There are still seven (7) matters outstanding from the various issues before Simmonds C. I have concluded that these matters would be counted in the sixty (60) issues which the UFU says are outstanding matters between the parties which are at various stages of discussion or being processed through the dispute resolution process. [15] When the dispute came before the Commission as presently constituted, the union continued to maintain that the conduct of the briefing sessions is contrary to the extant certified Agreement because the briefings are conducted at one location and as such constitute a change in work with which the UFU does not agree. The MFB stated the required consultation in accordance with clause 9 had taken place, since Simmonds C's decision. [16] On 18 August 2004, the MFB wrote to the UFU advising that SSO briefings would be included on the agenda for the EBIC meeting scheduled for 8 September 2004. Details of the briefings were also provided in the letter dated 18 August 2004. The matter was discussed at the 8 September 2004 EBIC meeting and Peter Marshall advised that the UFU would provide an alternative proposal. [17] At the 13 October 2004 meeting of EBIC, Trevor Clarke, representing the union, stated that the UFU did not believe that a written proposal has been submitted for the SSO briefings. The MFB rejected this but agreed to provide another written `change proposal'. The MFB wrote to the UFU on 19 October 2004 detailing the change proposed by the MFB and stating that the discussions would revolve around the general direction of the MFB as contained in the Corporate Plan, continuing issues such as attendance and community safety plans and seeking advice from SSOs regarding their training needs and future development opportunities. [18] On 17 November 2004, the UFU wrote to the MFB opposing the crews attending the training college and also requiring the attendance of a UFU representative. [19] Another meeting of EBIC was held on 19 November 2004 during which discussions on the SSO briefings occurred and the MFB agreed to the UFU request that crews not be sent to the training college but rejected the UFU request for a representative to attend. On 25 November 2004 the MFB formally rejected in writing the request for a UFU representative sought in the 17 November 2004 UFU letter. The MFB had organised briefings for SSOs for 2 & 3, 6 & 7, 8 & 9, 20 & 21 December 2004. [20] On 1 December 2004, the UFU wrote to the MFB stating that a UFU representative will attend the briefings. On the same date the MFB wrote rejecting the request. Also on 1 December 2004, the UFU issued a Bulletin instructing SSOs not to attend briefings. The MFB lodged the s.127 application. [21] Arising from the MFB s.127 application in C2004/6816, the Commission as currently constituted, convened a formal hearing and conciliation conference with the parties on 2 December 2004. On 2 December 2004, the MFB also lodged an application pursuant to s.99 of the Act regarding the SSO briefings. [22] Having been presented with documentation in the form of correspondence between the MFB and the UFU, a chronology of events since 28 January 2004 of discussions associated with conducting SSO briefings [Exhibit S1], and minutes of the EBIC meetings the Commission was satisfied that the required consultation between the MFB and the UFU, which Simmonds C had found to be lacking in mid 2004, had taken place in accordance with clause 9 of the Agreement. [23] On 2 December 2004, the parties provided brief submissions, including a submission in which the UFU challenged the jurisdiction of the Commission to hear the dispute. A lengthy conciliation conference was conducted under the auspices of the Commission. The Commission stated that prior to determining the s.127 application, the parties would have an opportunity to provide full formal submissions. [24] Arising from the conciliation conference, the Commission issued a Direction [ PR953923 ] that the SSO briefings proceed, that no bans or limitations be applied in regard to the planned 8 December briefing and if issues of concern to the UFU arose, a meeting to discuss those issues with the MFB should be held at the earliest convenience. The Direction was not complied with by the UFU and the SSO briefing scheduled for 8 December 2004 did not proceed. [25] On 3 December 2004, the UFU lodged an application pursuant to s.170LW. A hearing on this file alone was conducted on 6 December 2004. The union alleged that a dispute arose with the MFB because, pursuant to clause 10 of the 2002 Agreement regarding employee representation, it can attend any meeting convened by the MFB if a member of the UFU requests their attendance and the MFB had not permitted such representation to occur. [26] The clause in dispute states as follows, with that part which is specifically the subject of the UFU s.170LW application emphasized in bold. "10. EMPLOYEE REPRESENTATION 10.1 An employee appointed as an employee representative shall upon written notification by the Branch Secretary of the UFU to the employer, be recognised as an accredited representative of the UFU for the particular location. 10.2 An employee appointed or elected to a position on the Branch Committee of Management of the UFU in accordance with the Rules of the UFU, shall upon written notification by the Branch Secretary of the UFU to the employer, be recognised as an accredited representative of the UFU. 10.3 Accredited representatives of the UFU shall not be dismissed or injured in their employment or have their position altered to their prejudice or be subject to any other act to their prejudice by reason of their status or activities as an accredited representative of the UFU or on the basis of their membership of, or participation in the activities of the UFU. This provision shall apply equally to any employee who has made known their intention to be candidates for election as a representative of the UFU and also to any employee who has, in the past, been a representative of the UFU. 10.4 Accredited representatives as described in 10.1 and 10.2 of the UFU shall: · subject to the prior approval of the Officer in Charge or a more senior officer, be allowed the necessary time during working hours to interview the employer or his/her representative or an officer of the UFU on UFU business or an employee whom he or she represents; · before leaving their usual workplace for the purpose of carrying out their function as an accredited representative inform the Officer in Charge or more senior officer of their intention indicating their destination(s) and estimated duration of absence; · when visiting a different section, Station or place of work, inform the Officer in Charge of that Station or place or work, of the general purpose of such visit and estimated duration of stay. The accredited representative shall also inform the Officer in charge of his/her departure; · be allowed access to all work places where such access is necessary to enable them to carry out their functions in the particular area concerned; · be permitted to display written material authorised by the UFU Secretary on notice-boards provided by the employer for this purpose and shall also be permitted to distribute such written material to members, utilising if necessary, internal communication systems, like E Mail. 10.5 Access to the workplace for officers of the UFU Subject to reasonable notice an officer/employee of the UFU may for the purposes of representing employees covered by this agreement for any legitimate purpose: (a) at any time during working hours enter the MFESB's prescribed premises, registered office or workplace where the MFESB's employees are engaged; (b) at any time during working hours, inspect or view any work, material, machinery, appliance, document (including time and wages records), qualification of employees on the premises mentioned in part (a) above; and (c) interview, on the prescribed premises, an employee who is a member, or is eligible to be a member, of the UFU. Access to workplaces under the clause shall be authorised for the purposes of consulting with UFU Shop Stewards, investigation of grievances or complaints, observing working conditions, posting notices and agreements, and developing skills programs and implementation of agreed matters. If requested by the accredited UFU representative, the employer will provide a copy of any requested time and wages records as soon as is practicable." [clause 10][emphasis added] [27] The MFB advised the Commission that the SSO briefing scheduled for 8 December 2004 was not proceeding because the UFU Bulletin had not been withdrawn. At hearings on 8 and 9 December 2004, all three applications were listed concurrently. The MFB put its submissions seeking the granting of s.127 Orders. [Exhibit S5] [28] Conciliation conferences of the parties occurred on those dates, including an opportunity overnight for the UFU to discuss a proposal regarding the SSO briefings. The Commission issued a Statement on 9 December 2004 [ PR954118 ] which reflected an agreement between them to proceed with the SSO briefing on 20 December 2004. [29] The relevant part of the Statement states: "[9] Following a conciliation conference with the parties on (8) & 9 December 2004 they have agreed to proceed with the SSO briefing scheduled for 20 December 2004. The undertaking regarding the conduct of the briefing is as follows; · The SSO briefing will be conducted on 20 December 2004. · 10 SSOs from `C' Platoon on day shift will attend that briefing. · There will be one or possibly two employees who will be accredited UFU representatives in attendance. [10] The Commission remains of the view, consistent with the Direction issued on 2 December 2004 [ PR953923 ], that if there are issues which arise during the briefing which the union believes to be industrial matters more properly dealt with between the industrial parties consistent with the Agreement, then a meeting should occur following the 20 December 2004 briefing." [30] The MFB advised the Commission on 20 December 2004 that at the SSO briefing on that date, two accredited representatives of the UFU raised concerns that, in their view, issues being raised in the SSO briefing were matters which should not be discussed by SSOs and MFB but were industrial issues which should be dealt with under clause 9 of the Enterprise Agreement relating to "Consultative Process" and clause 12 regarding "Dispute Resolution". Two grievances were lodged during the first session of the briefing. [31] The MFB sought an urgent hearing in relation to its s.127 application on the grounds that the UFU had engaged in industrial action through disrupting the briefing which occurred on 20 December 2004. The hearings to determine the s.127 matters and the MFB s.99 application and the UFU s.170LW application, were convened on 22 and 23 December 2004. [32] On 22 December 2004, following a brief adjournment at the commencement of the proceedings to hear the s.127 application, the union sought that the Commission as currently constituted, withdraw from the proceeding on the basis of bias. That application was rejected on the grounds that the Commission had done no more than express a view regarding the briefing of SSOs which was consistent with the Statement issued on 9 December 2004. [33] The parties provided their submissions in full on all the applications in hearings on 22 and 23 December 2004. The parties have stated on transcript that there are no further submissions to be put in relation to any of the three matters which have been heard concurrently. The Arguments in Summary. [34] The MFB submits that the UFU has breached the provisions of s.127 (2) of the Act in that they have engaged in industrial action which is not `protected action' by disrupting the SSO briefing on 20 December 2004. The MFB stated that further SSO briefings were planned in 2005 and further industrial action is "threatened, impending or probable." The MFB seeks that the Commission issue Orders pursuant to s.127 of the Act. [35] The UFU submits that the MFB has breached the terms of the 2002 Agreement because it has denied representation by a union representative at a meeting where work regulated by the agreement is being conducted. The UFU asserts that the SSO briefings contain `industrial matters' or matters regarding change which should be dealt with pursuant to the Consultative Process provisions contained in clause 9 of the 2002 Agreement. [36] Specifically, the union argues that some of the issues which the MFB seeks to discuss with SSOs during the briefings are matters which can only be discussed between the UFU and the MFB or at a time when the UFU has an authorised representative present. A further argument by the UFU is that the attendance by SSOs at the briefings is additional work not encompassed in the extant Agreement and as such it represents an extra claim in contradiction of clause 49 of the 2002 Agreement. [37] The union submits that it received a request from a member, consistent with clause 10.5, in relation to the SSO briefing on 20 December 2004. The MFB does not believe that the union's attendance should occur as a right arising from clause 10 of the Agreement. However, in accordance with the Statement reflecting the MFB and UFU agreement issued by the Commission on 9 December 2004, the MFB accepted that accredited UFU representatives would be in attendance at the briefing on 20 December 2004. [38] The UFU submits that its application pursuant to s.170LW, goes directly to the meaning of clause 10 and that it must be determined prior to any decision being made in the s.127 application. [39] This decision encompasses all three applications and makes determinations regarding the application that the Commission issue Orders pursuant to s.127 of the Act and the meaning of clause 10 of the 2002 Agreement as it applies to the conduct of the SSO briefings. Evidence of Commander Peter Holmes. [40] The MFB called Commander Peter Holmes to give evidence [Exhibit S11]. His evidence was confined to the events associated with the conduct of the SSO briefing on 20 December 2004. [41] He gave evidence that at the commencement of the briefing, 4 topics were listed on the board as topics for the briefing. Among the topics for discussion were the Corporate Plan and the community safety log. Two SSOs who were present and authorised as UFU representatives for the briefing, stated that these two issues were more appropriately dealt with between the UFU and the MFB as they were industrial matters and the MFB had provided an undertaking to the union that the SSOs briefings would not include industrial matters. [42] Commander Holmes stated that the representatives sought to discuss the issue between themselves and that they were going to contact Mr Marshall, the secretary of the union. On their return to the briefing, the representatives asked for the documentation relating to the agenda items. He stated he handed a copy of the running sheet to the representatives [Exhibit S7] of the topics and sub topics which were to be the subject of the briefing. The documentation for the first session was later provided to the UFU representative but the documentation concerning the station risk profile was with Commander Donaghey who was not due at the briefing until the second session. [43] He stated that the UFU representatives again expressed concern with some of the topics and that two grievances were then provided in writing regarding the Corporate Plan and the community safety log. Commander Holmes stated that on the basis of the grievances, he sought advice and the briefing was not cancelled but the `status quo' remained which meant in effect that the 2 issues which were raised in the grievances were not discussed. He said that the MFB decided rather than waste the opportunity of having the SSOs present, to bring forward discussion on the occupational health and safety issues which were planned for the afternoon session. [44] Commander Holmes stated that the third session of the day was the formal presentation and discussion on occupational heath and safety issues by Mr David Youssef. As an adjunct to this issue, Ms Salmon later stated that he was a previous President of the UFU and it was for this reason that the UFU did not raise a grievance against this session. Commander Holmes briefly referred to the address by the MFB CEO, Mr Agius, toward the end of the day. [45] Ms Salmon stated that the jurisdictional requirements regarding the s.127 application had been made out, as industrial action is `happening or is threatened, impending or probable', and the industrial action is in relation to an industrial dispute or work regulated by an award or certified agreement and the MFB as a party directly effected by the industrial action had brought the application. [46] She submitted that the issues relating to SSO briefings had been before EBIC and accepted with the only outstanding issue being the issue of UFU representation at the briefings. She submitted that issues associated with the agenda did not arise until later in 2004 after the MFB had decided not to grant the request by the UFU that it be represented at the briefings. [47] Ms Salmon submitted there were two discretionary factors which weighed strongly in favour of the Commission granting an Order. First, the MFB had followed the processes contained in the relevant Award and current Agreements regarding change and conditions under which change may occur and sought protection from industrial action by the UFU who opposed any form of change even though in this case it had occurred consistent with the industrial instruments. [48] The second discretionary consideration was the very long history of industrial action at the MFB and Ms Salmon noted the Commission's involvement in the past and the information available to the Commission. Ms Salmon stated ". . .  you can rest assured that if further issues arise within the organisation regarding change, there will definitely be further industrial action." [PN167] [49] She listed some 13 matters on which some form of industrial bans or industrial action had, or was occurring, over the past 18 months. She stated; "These included industrial bans are the SSO briefings, the SSO leadership program, the multicultural liaison officers advertisement and filling of those positions, and the GEARS program. Since I have been at the Board - and that is only since April of this year - I have been involved in section 127 s for BA and twinning of cylinders - that is breathing apparatus - and the training of staff for the twinning of cylinders, a move of staff from one temporary site - one site to a temporary site across the highway, the requisition of beanies, MFB beanies to be worn outside working hours, and the ones that are currently before the Full Bench which include OSG, pumper 2 B, community safety logs, skills maintenance recording, fire inspection courses; and there are numerous other ones which we haven't bothered to pursue." [PN168] [50] On the basis of her submissions, Ms Salmon submitted the Commission could be satisfied "that industrial action regularly occurred and past history and the union's conduct weighed heavily in favour of the issuing of s.127 Orders". [51] She also submitted that the UFU has acted in breach of the Directions issued by the Commission and of the Agreement's dispute settlement process by refusing to allow its members to attend legitimate meetings with management. She also stated that the UFU's actions were part of a organised process by the union to `frustrate' its obligations under the Agreement. [52] Ms Salmon submitted that the balance of convenience favoured the granting of the orders sought because; ". . . what we are saying regarding the status quo is that if you grant an order, all the UFU has to do is comply with the industrial instruments and allow the SSOs to attend the briefings. As mentioned in your original directions, if any matter arises from these meetings which individual members are concerned about the MFESB has made and continues to make undertakings to hold meetings with the union in a timely manner regarding these issues." [PN171] [53] She submitted that the work is regulated by the Victorian Fire Fighters Interim Award 2000. She stated; "The MFESB ought to be able to meet with its senior staff and discuss programs such as we have put forward. Most of the SSOs belong to the union; some are shop stewards, all are capable of raising their views within the forum and with the union later on. And as we have said in the past and we proceed to say so in the future, we undertake to have meetings in a timely manner to ensure that those matters are dealt with. And, therefore, we welcome to - we are happy to have the SSOs attend wearing both hats if they feel that that is necessary, and that is our view. As I said earlier, the status quo for this matter, in our view, is that the EBIC minutes that we have handed up ought to be the status quo as it is the understanding between the parties." [PN161] [54] Ms Salmon submitted that, together with the actions of the UFU on 20 December 2004 which sought to alter the status quo position that the briefing proceed, the Bulletin issued by the UFU [Exhibit S4] placing a ban on SSO attendance at the proposed briefings constituted a ban capable of being the subject of s.127 Orders. [55] Ms Salmon stated that the MFB had incurred an expense of approximately $1,500 per day for the rental of the site for the SSO briefings, not including amenities costs and the time individuals had worked on their presentations. These costs should also be taken into consideration in the granting of Orders. [56] In relation to the applications which are the subject of these hearings, Ms Salmon submitted that the s.170LW application by the union was not genuine and was lodged simply to frustrate the Directions issued by the Commission. She relied on her conversation with Mr Hamilton from the union on 7 December 2004 in this respect and the fact that the s.170LW application was lodged after the UFU Bulletin had banned SSOs from attending any briefings. She further stated that the Directions of the Commission had been issued on 2 December and the circumstances of the dispute had changed since that time. [57] Ms Salmon submitted that in this context, the UFU s.170LW application should be set aside or, in the alternative, if there is argument about which application should be first considered, then the s.170LW application in C2004/3985 lodged by the MFB on 10 May 2004 should be determined first. [58] The MFB's submission regarding the meaning the Commission should give to the term `status quo' and as a consequence whether the UFU had engaged in industrial action which would satisfy the Commission's discretion to issue orders pursuant to s.127 , was as follows; "Ultimately, Commissioner, in addition to making the decision concerning 127 and 99, there is a question before you regarding status quo. And as you need, in my submission, to do so having full regard to the context of the prior proceedings, of the findings about the pattern of industrial action, and persistent and repetitious response to the UFU to continue with actions which frustrate the MFESBs ability to progress any matter at all. We believe that the status quo should be in each of the circumstances outlined above that no industrial action happens while the MFESB implements the programs which have been through the appropriate processes." [PN180] [59] She referred to the decision of Simmonds C regarding the issue of the status quo [ PR949947 ] as upheld by a Full Bench [ PR952677 ], which she stated found that, with reference to clause 12 of the MFB Agreement ". . . the UFU was required to meet the objectives of that clause and be genuine in order to attract the protection of the status quo provision as set in the clause." [PN178] [60] Ms Salmon pressed the Commission to issue the Orders sought. The UFU case. Evidence of Mr Peter Marshall. [61] Mr Marshall, the State Secretary and National Secretary of the UFU, gave evidence. He was not cross examined on his evidence. He stated that he objected to most of the issues which were on the SSO running sheet for the briefing [Exhibit S7]. He explained in detail that there were a number of reasons why the UFU did not agree with the items which were the subject of a briefing. These included historical reasons, the views expressed by the parties including the Victorian Government during the negotiations toward reaching the 2002 Agreement and his view that the MFB was attempting to "railroad" the SSOs into doing work which they had previously not done. This evidence related particularly to the Corporate Plan which was the subject of extensive questioning by the Commission seeking the views of the union. [62] Mr Marshall stated that the majority of the items listed for briefing in the section regarding the Corporate Plan were industrial issues or were matters which were specifically referred to in the 2002 Agreement. As such he stated, and pursuant to the terms of clause 9 regarding consultation on change, clause 10 regarding employee representation and clause 12 regarding dispute resolution, the items he listed should not have been the subject of the briefing because they were appropriately dealt with through consultation between the UFU and the MFB, by joint Working Parties which were in operation or by EBIC. He referred in particular to aspects of the Corporate Plan involving resource sharing, attendance management, negotiation of agreements, certified agreements and workplace safety which was allied to the community safety log. [63] He stated that the UFU had the right, pursuant to clause 10.5 of the Agreement, to represent a member at any meeting during work time if the member requested the union to represent them. This included the SSO briefings because the union had received a request or requests from some of the SSOs. There was no supporting evidence concerning these requests but this issue was not challenged by the MFB. [64] As an addendum to this point the Commission notes that arising from the agreement between the parties and contained in the Statement issued on 9 December 2004, the UFU undertook with the agreement of the MFB, to designate several of the SSOs attending the briefing on 20 December 2004 as UFU representatives. [65] Mr Marshall stated that it was union policy that if the MFB asked the SSOs to do any additional work regarding the Corporate Plan that this would constitute an extra claim in breach of clause 49 of the 2002 Agreement and that it was union policy that no changes could occur to the work of SSOs, or any MFB employees, without money being paid for what he stated was additional work. [66] Mr Marshall stated that the Commission should be cognisant of the history of the industrial relationship between the MFB and the UFU which gave rise to the union's concerns that the MFB was seeking to use the SSOs briefings to involve SSOs in industrial matters contained in the Agreement. He stated; ". . . 2. Approximately 99% of operational staff and 100% of SSOs are members of the UFU. SSOs have traditionally been strong union members, and have a strong sense of industrial unity with operational staff working with them. 3. From time to time in the past the MFESB has adopted practices which have had the effect of putting UFU members in managerial roles in positions of potential conflict with firefighting operational staff over industrially related issues. 4. SSOs are concerned (as is the UFU) that they do not become pawns in industrial skirmishes. The UFU wants to avoid the situation of SSOs being forced to choose between loyalties and being subjected to criticism on either side. In particular they are concerned that they are not caught up in disputes about implementation and interpretation of the MFESB/UFU Enterprise Agreement 2002 ("the Agreement"). 5. There are many issues that are of great significance that are in dispute between the UFU and the MFESB. For some of these, the Agreement requires the parties to go through processes that are not yet exhausted. These are big ticket items for the UFU and the UFU doesn't want SSOs to be subject to partisan positioning whilst discussion is going on between the parties. These things include: · Community Safety (Appendix A and B; referred to in the Intro of Change/Consultation clauses 9 & 11; Clause 19) · Clause 20 - Technological change (requires consultation) · Clause 21 re Ranks - Inspectors/Commanders are huge items, and directly relate to the promotion of SSOs · Clause 22 - Attendance Management 6. The Agreement covers SSOs and Commander Operations - who are union members - as well as other firefighters underneath them - who are also union members - and there are potential conflicts that can arise between union members when the SSOs: · direct those underneath them; or · deal with provisions of the Agreement or Award that involve members' entitlements. · Examples of such clauses include: · Clause 30 - Allowances; · Clause 35 - Training; · Clause 43 - Pressing Necessity Leave · Award - Recall/Overtime etc 7. The UFU is very conscious of the leadership roles of the SSOs and SOs, and the need to avoid that role becoming enmeshed in industrial disputation, and has negotiated industrial instruments to take account of and address that purpose. That is why clause 12 is so broad so as to enable an SSO (or anybody) to raise a dispute/grievance about any matter pertaining to the employment relationship. It allows for the act complained of to be suspended while the MFB and UFU discuss the issues in dispute and enables the effected person to extricate themselves from what could otherwise be perceived as them being unduly partisan. The UFU does not want SSOs caught in the middle of wide ranging industrial disputes between the MFB and UFU. 8. The Agreement has detailed provisions for processing of change, consultation (e.g. clause 9), agreement on new policies (clause 23) as well as dispute resolutions processes all of which arte designed to minimize the potential for industrial conflict. The role of the UFU is recognized by the Agreement, and an example is its rights under clause 10." [Exhibit L1] [67] Mr Langmead submitted that Ms Salmon's submissions regarding the history of industrial action by the union was incorrect and the UFU rejected the allegations that it had been found to be carrying out industrial action in each of the disputes referred to by the MFB including the two disputes which had been the subject of s.127 applications. He stated that no s.127 applications had been granted and the other disputes were dealt with pursuant to s.170LW. [68] With regard to the s.99 application by the MFB, Mr Langmead submitted that the notification relied on the dispute finding in C50049 of 1993 against which the 1993 Interim Award was made. He stated the MFB had failed to explain where the ambit of the dispute lies in relation to that dispute which would give the Commission the jurisdiction to deal with this matter. [69] In relation to the lodging of the s.170LW application by the UFU on 3 December 2004, Mr Langmead stated that it had been lodged because the Commission had noted that the UFU Bulletin stated that a dispute had been lodged with the Commission and the Commission advised Mr Hamilton from the UFU at the hearing and conference on 2 December 2004, that the Bulletin by the UFU was incorrect as no application had been lodged. The application by the UFU was, he stated, to rectify this oversight. [70] Mr Langmead submitted that the other reason why the UFU had lodged the s.170LW application on 3 December 2004 was to ensure that the matter was properly determined by the Commission in accordance with the dispute resolution procedure. He confirmed that the s.170LW application related specifically and only to the dispute regarding the SSOs briefings. [71] He also added that the union had not been heard in relation to any arbitration of the claims regarding the SSOs briefings prior to the Commission as currently constituted, issuing the Directions on 2 December 2004, even though the union had put on notice that it wished to be heard regarding the s.127 application from which the Directions ensued. [72] Mr Langmead submitted that the Commission had not been fully appraised of all the issues prior to issuing the Direction and that Mr Bandt, representing the UFU at the 2 December 2004 hearing, had sought to put formal submissions regarding the s.127 application. Mr Langmead acknowledged that the Commission had issued the Directions following several hours of conciliation between the parties. He submitted; "Commissioner, I am instructed that - firstly, that the UFU entirely agrees with the Commission's observations about the efficacy of conciliation. It is more often than not extremely fruitful and it is always prepared to participate in conciliation. I am also instructed, however, that, with respect, Mr Bandt indicated that he did want to be heard in relation to the matters at issue but the process was immediately following the conference, conciliation conference, the Commission made the directions without any further hearing." [PN242] [73] There were several issues raised by Mr Langmead in his submissions relating to the alleged industrial action by the UFU and its members at the SSO briefing on 20 December 2004. He stated that as a first proposition, the MFB had breached its undertaking to provide to the UFU, information relating to the agenda items for the 20 December 2004. Mr Langmead agreed that the agenda had been provided to the union by a member and that it was discussed at a conciliation conference before the Commission on 8 December 2004 but he emphasized that the information was not forthcoming from the MFB. In any case he stated, only the agenda had become known to the UFU and not any of the content associated with the agenda outline on the running sheet [Exhibit 7]. This behaviour by the MFB relating to the conduct of the SSO briefings for 20 December 2004 was, he submitted, evidence of the ongoing reluctance by the MFB to provide documents. He stated that the UFU had, as a gesture of compromise agreed to the position which was issued in a Statement by the Commission on 9 December 2004, that the SSO briefing could proceed and the union would accredit three SSOs from the shift which was to participate in the briefing scheduled. [74] He stated that the compromise was agreed to by the UFU on the basis that the MFB had agreed that it would not discuss industrial issues at the briefing. He submitted that the MFB breached the agreed position in relation to the briefing by including industrial matters which, pursuant to the 2002 Agreement, were issues which were the subject of ongoing discussions with the union or which were more properly, in accordance with their Agreement, dealt with through EBIC or specially constituted committees. [75] Mr Langmead stated that there has been a long history between the MFB and the UFU regarding a failure of the MFB to provide information to the union to which the union believed it was entitled. He also submitted the MFB had a poor record of consultation and referred to a decision by Commissioner Simmonds regarding this issue and referred to a decision he had made on the issue [ PR950883 ]. [76] Mr Langmead noted that the dispute on SSO briefings had proceeded by way of conciliation and that the Commission had not convened a formal hearing as to the merits of the case. In relation to the Directions issued on 2 December 2004, he stated that it was the union's position "that those directions are not directions which you are able to give because you cannot, with respect, give directions under 111(1)(t) which are inconsistent with or contrary to a certified agreement and the Full Bench of the Commission has so held." He relied on the decision of the Full Bench in CEPU v Telstra [128 IR 385 Giudice J, Harrison SDP, Simmonds C]. [77] Mr Langmead acknowledged that the four issues for the SSOs briefing were as outlined in the running sheet, [Exhibit S7] the corporate action plan process, station risk profiling, community safety log, employee health and safety. He submitted that as the detail of what was being discussed became clear, the representatives at the briefing became aware that the broad items contained issues which are currently at various stages of dispute and being dealt with consistent with the dispute resolution clause of the Agreement. [78] In response to questions from the Commission, Mr Langmead stated that there were some 60 issues in dispute between the parties, some of which were before the Commission including two Full Benches and other issues which were being progressed through the grievance procedure or being discussed. [79] Mr Langmead submitted that the question of whether the UFU or its members had engaged in industrial action, could only be assessed after the Commission had determined the union's application pursuant to s.170LW. [80] He stated, the union was entitled, under clause 10.5 of the Agreement, to have a representative attend any meeting or any other activity of the MFB at which work is being performed and that included the SSO briefing on 20 December 2004. [81] Mr Langmead submitted that the meaning of `legitimate purpose' as it related to representation at the SSO briefing was "where the union believes that something is going to happen in relation to how work is being performed which is going to affect an ongoing industrial issue which is being disputed between the parties." [PN517] [82] He submitted that the very thing which the union believed would happen did happen in that the discussions on industrial matters was action by the MFB; ". . . seeking to pre-empt the outcome of dispute resolution processes by having SSOs adopt a position in relation to it and in circumstances where the SSOs themselves have said to the union that they are uncomfortable about them being put in this position. They do not want to be subject to what may be perceived as attempts by the MFB to split them off or to put them in one camp or the other or, indeed, put them between two camps and, Commissioner, there is a long history about these matters in the MFESB." [PN521] [83] With regard to the Directions issued by the Commission on 2 December 2004 that the UFU should receive a report back from its members on any issues which it believed to be matters relevant to the Agreement and thus matters between the MFB and the UFU, put those in writing to the MFB and convene a meeting about them, he submitted that the first stage of the process had been complied with in that the issues had been the subject of written grievances lodged with the MFB on 20 December 2004. [84] The Corporate Plan was one of the issues which was the subject of one of the grievances. Mr Langmead submitted that aspects of the Corporate Plan are in contention between the parties and the subject of partial processing under the dispute resolution procedures. He referred to the written statement of Mr Marshall [Exhibit L1] which listed the industrial consequences of the Corporate Plan and that the Corporate Plan was still subject to ongoing discussions with the union. [Exhibit L1 para 12] [85] He submitted that the s.127 Orders sought by the MFB should not be granted as they were unable to demonstrate that industrial action is `happening, or is threatened, impending or probable' in relation to an industrial dispute for work that is regulated by an award or a certified agreement. He added that it was still not clear to the UFU what is said to be the industrial action that the MFB complains about, nor what they say is threatened for the future. [86] Mr Langmead submitted that the dispute was essentially about whether or not the UFU is entitled to have representatives other than Station Officers from that shift attending the SSO briefing. He stated that it is a dispute about the application of the agreement. Mr Langmead submitted that the UFU would not be involved in representing a member or members on every occasion it was sought but would do so if it believed it was warranted. The UFU believed that clause 10 of the 2002 Agreement gave them that right. [87] Mr Langmead agreed with the view expressed by the Commission that Simmonds C had decided that centrally located briefings was a change of work because it was a change of location and that the SSOs meetings had previously been held at a zone level. He added that the union believed that any briefings of the 90 SSOs previously had been through station visits which were, as per the evidence of Mr Marshall, `tea and scones' visits, informal in nature and that other firefighters may have been present. [88] He submitted that the briefings as the MFB proposed had not occurred previously and that the UFU was of the view that they had a `legitimate purpose' to attend because the attendance had been sought by members who were SSOs and the union, and the members, believed that industrial matters would be discussed at the briefing. Mr Langmead submitted: "Now, that was a dispute over the application of the agreement, because the union takes the view, and Mr Marshall explained in evidence yesterday why it takes that view, because the agreement is intended to provide for that safeguard - he takes the view that where there are legitimate purposes, as that is the words of the agreement, and those legitimate purposes include following on from complaints by members of invitations by members for representation, or - and this wasn't the case in this, but if the union itself became aware that there were matters of concern to it taking place in the workplace, whether they are at a meeting or anything else, they are entitled to send a representative out to observe that work and to determine whether it is a matter of concern or not." [PN771] [89] The dispute arose, in Mr Langmead's submission, because the MFB had decided that the UFU was not entitled to attend the briefing. He stated that the grievance lodged by the UFU on 1 December 2004 [Exhibit L3] attested to this and once the grievance was lodged, and in accordance with the 2002 Agreement, the status quo was that the briefings should not proceed while the dispute was dealt with through the dispute settling procedures. As such the UFU was not engaging in conduct of the type which could be held to offend s.127 of the Act. [90] Mr Langmead submitted that the MFB had not sought to agitate the s.99 dispute. On this point the Commission advised the parties that the s.99 was encapsulated within the hearing and was a matter being heard concurrently. [91] In further submissions regarding the alleged industrial action, he submitted that the MFB had failed to particularise the action it complained of and given that the UFU had acted within the Agreement, and since the action taken by the UFU sought to maintain the status quo, that it could not be characterised as industrial action within the meaning of the Act. [92] In relation to the draft s.127 orders [Exhibit S14], Mr Langmead submitted that they were defective in that they did not identify who the party or individuals taking industrial action were, or what the industrial action is. [93] Mr Langmead submitted that the briefings were `work' and as such, the union could attend them in accordance with the provisions of clause 10.5 of the Agreement which provided it access to workplaces at `any time' to `view any work' to consult shop stewards, investigate grievances or complaints and observe working conditions. He relied on the affidavit of Mr Marshall in this regard [Exhibit L1] and his uncontested evidence, that the UFU understanding of clause 10 was correct. He submitted that the proper application of clause 10; ". . . is that the union is entitled to - where it demonstrates a legitimate purpose, it is entitled to be present to supervise its functions and responsibilities under 10.5. And, as I have said, until that dispute about the application of the agreement is determined, nothing the union does in maintaining the status quo can be said to be industrial action." [PN852] [94] He added that the actions taken by the UFU could not be characterised as industrial action because ". . . the employer accepted that the work would be performed on that day in the way in which it ultimately was." [PN863] He stated that the SSOs were paid for their attendance at the briefing and in accepting the work their actions could not be characterised as industrial action. [95] Mr Langmead submitted that even if it was found that there were bans and limitations on the work, which was denied by the UFU, he stated that the work had been carried out and as such did not fall within the definition of industrial action of s.4 of the Act which states; "Industrial action does not include action by employees that is authorised or agreed to by the employer or employee." [96] He also stated that the employees had been paid for the briefing and if it was industrial action the MFB would be in breach of s.187AA which prevent the employees being paid if there is industrial action. [97] Mr Langmead submitted that the SSOs briefing did proceed on 20 December 2004 albeit that it did not proceed according to the MFB agenda. He submitted that the evidence of Mr Marshall that the briefing was a great success was not contradicted and should be accepted. MFB Submissions in reply. [98] In response to the submissions made by the UFU concerning the validity of the s.99 application lodged by the MFB, Ms Salmon submitted that if it was necessary, the MFB would vary the application if it did not reflect the provisions of the Victorian Firefighters Interim Award 2000. [99] Ms Salmon submitted that the actions of the UFU on 20 December 2004 had been disruptive and their actions were "similar situation to the disruption of a concrete pour on a construction site." [PN875] Ms Salmon submitted that the MFB attempted within the constraints the UFU placed on the briefing to make the best use of the day set aside for the briefing. [100] Ms Salmon stated that the situation where the UFU sought every document to be presented to the staff at the 20 December briefing was in effect a vetting process imposed by the union and was totally unacceptable to the MFB. [101] She stated that change within the MFB during the lifetime of the Agreement was inevitable and the 2002 Agreement recognised that change should be progressed through clauses 9, 11, 14 and 20. She submitted that with regard to the SSO briefings the MFB had abided by the required consultative mechanisms. [102] In reply to Mr Marshall's evidence regarding the industrial relationship between the parties and the reasons why the SSO briefings had become such a protracted dispute, Ms Salmon made the following submissions; "We say that when you view the evidence before you, the element of the briefings which were prevented from being carried out by the purported grievances issued by the UFU were not industrial in the normal sense of the word. They were information sessions on integral components of SSOs responsibilities. But we all know that information and knowledge are powerful tools and there is no doubt in my mind that the dispute between the UFU and the MFESB exists and this is about management of MFB able to - being able to talk to their staff. It is about the control of information to a very important group of people. The SSOs represent our next generation of managers. They are valuable and important to both the MFESB and the UFU. By the union's own submissions, the concerns that they have is that the MFB will attempt to have the SSOs adopt a particular view and take part in discussions which are not sanctioned by the UFU. And the union will go to any length to prevent that from happening, as we have seen here. It may very well be that the SSOs have some concerns about the information that they are given. There may be some elements of the presentations that they are uncomfortable with. But that, in normal practice, would mean that they would bring that to the attention of their union, having digested it, and those issues would then be brought to the attention of the management and the union and the management, and perhaps the SSOs themselves, would sit down and discuss the matter and try and resolve any concerns or issues that may arise. These are adults. These are people who have a long history with the organisation. They are managers in their own right. The expectation is that they can listen and participate in a discussion while remaining either uncommitted or opposed to the views put by management. We believe they are capable of doing this. We believe that the union should also share this confidence." [PN880 - 883] [103] Ms Salmon submitted that the MFB had followed Commissioner Simmond's Recommendation that the SSO briefings be put before EBIC. Agreement was not reached there due to the issue of union representation at internal briefings conducted by the MFB. Correspondence and meetings followed but the MFB did not accede to the UFU's request. When the Commission Directions were issued on 2 December 2004, Ms Salmon stated that this then constituted the status quo and the briefings were to proceed. [104] Ms Salmon submitted that the MFB's SSO briefings had been stopped three times. She stated the MFB had planned four sets of briefings but had hardly had one. She stated that the Commission had Directed that the briefings proceed and that the briefings were now scheduled for early 2005. [105] Ms Salmon submitted that the Commission should issue the Draft Orders [Exhibit S14] and that if they were lacking with regard to any technical issue the Commission was able to vary them to ensure their legitimacy. Conclusion. [106] There are a number of matters to be determined in this decision. It is restated the determination of the s.170LW application in this decision, relates only to the operation of clause 10 of the 2002 Agreement with regard to the conduct of SSO briefings. It does not relate to the SSO ICS Skills Maintenance meetings which were included in the UFU application. This was agreed between the parties during proceedings. [107] In relation to the provision of information to the UFU by the MFB, as provided for in clause 10 of the 2002 Agreement, this issue too is confined to the SSO dispute. Although there were some submissions, mainly of a general historical nature, the submissions have been primarily pertinent to the provision of information relevant to the SSO briefing and not to the provision of information generally. The Principles. [108] The Commission has developed principles which relate to the exercise of discretion pursuant to s.127 . Prior to exercising the power to make a s.127 Order, the Commission must make findings of fact regarding "jurisdictionally required prerequisites". [Coal and Allied Operations Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [Print P207] Munro J, Harrison SDP and Leary C] ( Coal and Allied) and [Patrick Stevedores No 1 Limited [Print P8838] Ross VP]. [109] It is also for the applicant seeking the Order to satisfy the Commission of the existence of the jurisdictional prerequisites (ibid). The onus on the applicant extends to establishing, at least on a prima facie basis, that there are adequate grounds for the Commission issuing an Order that the relevant action stop or not occur. [110] The Commission has power to issue an Order if the person or organisation in respect of whom the Order is sought is engaging in industrial action within the meaning of s.4 of the Act. The action in respect of which a s.127 Order may be made includes bans, limitations or restrictions on the performance of work or on the acceptance of or offering for work, the failure or refusal to attend and perform work, and the performance of work in a manner different from that in which it is customarily performed. Picketing which takes the form of `preventing' or `hindering' people from accepting or offering for work has the effect of limiting or restricting the performance of work, or the acceptance of or offering for work. Such conduct may be regarded as falling within paragraph (c) of the definition of industrial action, but only in so far as the limitation or restriction is in relation to the work of employees imposing the ban." [Davids Distribution Pty Ltd v National Union of Workers, Federal Court of Australia, Wilcox, Burchett and Cooper JJ, 13 August 1999.] See also: [New Zealand Milk (Auspac) Pty Ltd [Print S0326] Smith C]. [111] The Commission must be satisfied that the industrial action is continuing, threatened, impending or probable at the time the s.127 Order is made. A pattern of intermittent but continual industrial action could be sufficient to reach the view that industrial action was threatened, impending or probable even though there was no action taking place at the particular time the Order was operative [CBI Constructors Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [Print R1748] Giudice J, Polites SDP and Gregor C] [112] To form the requisite view whether action is threatened, impending or probable, reference must be had to the evidence overall. In determining whether action is `impending', the term suggests that the industrial action must be imminent or about to happen as distinct from being scheduled to happen at some time in the future or likely to happen [Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Maintenance Resource Engineering Pty Ltd [ PR940926 ] Williams SDP, Lacy SDP and Foggo C]. Industrial action. [113] The MFB states that the disruption to the 20 December 2004 briefing constitutes industrial action sufficient to satisfy the pre-requisites for the issuing of s.127 Orders. The actions by the UFU at the SSOs briefing on 20 December 2004, while being disruptive and frustrating to the MFB in the course of legitimate communication sessions with key employees, were not sufficient in my view to constitute industrial action within the meaning of the Act and I so find. [114] The SSO briefing on 20 December 2004 did proceed, albeit within the limitations imposed by the UFU regarding items of discussion on the agenda for the briefing. On being made aware of the subject of the topics to be discussed, two SSOs lodged a written grievance on each of two items which had the effect of removing those items from the agenda for the briefing. [115] The basis of the filing of the grievances was that the authorised representatives of the UFU believed the content of items on the agenda constituted industrial matters which should be dealt with pursuant to the provisions of the 2002 Agreement. The Agreement at clauses 9, 11, 12 and 14 include the processes which should be applied in dealing with specified industrial matters prior to change occurring. The representatives concluded after consulting with the union Secretary that the items should be the subject of discussions between the industrial parties and not the subject of briefings between the employer and its employees. [116] I am satisfied on the basis of the evidence and submissions before the Commission, that the SSO briefings were approved through EBIC and the only outstanding issue was that of UFU representation at the briefings. The minutes show though, and the submissions of the parties confirm, that the MFB was to provide a copy of the agenda to the UFU. Had that occurred at an earlier time and the union did not rely on a leaked copy of the agenda, the union may not have been as suspicious of the contents of the briefing. [117] Mr Marshall scrutinised and commented on virtually every aspect of the conduct and the content of the SSO briefing for 20 December 2004. The employer cannot be put in a position where the conduct and content of its communication sessions with key personnel are, in effect vetoed by the union. Neither can the MFB make decisions which interfere with or change the rights of employees or the union which are enshrined in the Agreements or Awards. [118] In the case of the SSO briefings, the MFB attempted to do neither. The discussions were a legitimate manner in which to advise and seek advice from its employees. If, after assessing the views of the SSOs, the MFB made changes or policy contrary to the Agreement, the UFU would have legitimate cause for concern. At that stage, which would be consistent with the dispute resolution procedures, the UFU would be within its rights to convene discussions directly with the MFB. [119] The four issues which were on the agenda for the SSOs briefing were broad in nature. An issue such as the Corporate Plan has many elements to it and a wide variety of stake holders. Mr Marshall drew the implications, correctly in my view, of the Corporate Plan on industrial matters. However, incorrectly in my view, he stated that the union position was that no discussion on the Corporate Plan could occur because of these implications. [120] It makes no sense for the MFB not to consult its senior operational staff and seek their input on a range of issues. From time to time, the MFB will need to discuss with these employees complex, confidential and sensitive matters. Occasionally, the issues which will be the subject of briefings will have myriad aspects and one of those will be an industrial aspect. That is not to say that the discussions will be in the context of a negotiation. Certainly, the discussions at the SSO briefing were not intended to be a negotiation of any industrial matters. Under the current Agreement that could not occur and industrial matters are properly negotiated and determined between the industrial parties. [121] However, there is nothing in my view which prevents the MFB from discussing issues which may have industrial matters as a subset of the main issue. Specifically on the agenda for 20 December 2004, was an item regarding attendance. It defies logic and common sense to believe that since a joint committee is considering attendance matters that SSOs should not discuss attendance. They are the people who deal with problems and issues on a day to day basis and have every right to discuss and share ideas on this issue with other SSOs and management. [122] If the s.127 application had been pressed on 2 December 2004 at the time the UFU had instructed its members not to attend the meetings, I may have reached a different view. By the time of the SSOs briefing on 20 December 2004, the MFB had, correctly in my view, agreed to a process focussed on allowing the briefings to take place. The UFU had also made concessions regarding UFU representation but had expectations relating to setting the agenda for the briefing which, in my view, far exceeded their authority under the Agreement or the reality of normal, usual and practical employment relationships. [123] However, on the basis of the facts associated with the conduct of the SSO briefings on 20 December 2004, I find that there was no refusal or failure to attend and perform work per se. While the actions of the UFU at the 20 December 2004 briefing are not condoned, in the circumstances of this matter, they are not actions which I find constitute industrial action as described in the Act. Clause 10. [124] The meaning of clause 10.5 is at the heart of many of the disputes between the MFB and the UFU. Mr Marshall's evidence in this case sought to give the meaning the union attributes to the clause. While he stated that the MFB runs the fire services and he recognises their right to do so, he submitted that by virtue of the provisions of clause 10.5, the union can determine what a "legitimate purpose" is and to attend any meeting of the MFB for "the purposes of representing employees" covered by the agreement. [125] The UFU believes that clause 10 of the Agreement pertaining to employee representation provides an unfettered right for a UFU Officer or authorised representative to be present on any or every occasion the MFB talks to its employees if an employee seeks the union to be present. The UFU application pursuant to s.170LW seeks that the Commission settle the dispute over the application of clause 10 in regard to UFU representation at the SSOs briefings. [126] The issue was the subject of considerable examination during the giving of evidence by Mr Marshall. In his evidence and supporting statements [particularly Exhibit L1] Mr Marshall provided the background as to why the UFU has adopted its position on representation of SSOs. His comments provide the context in which disputation over the SSO briefings has been so long running and the parties are at such odds over the issue of the briefings. I accept that the briefings are a new initiative of the MFB. [127] I do not accept the view that the briefings constitute a change to the working conditions of employees to the extent that by attending a central location and participating in a briefing, whereby they will receive information and provide their views, that the MFB has made changes which could be characterised as an extra claim in terms of the 2002 Agreement or a breach of the Agreement. [128] In some instances he stated it would not be necessary for the UFU to represent its members. As an example, he referred to the previous informal visits by management to fire stations where informal discussions were conducted between management and the SSOs. In such a circumstance he stated the union would probably not be present. On occasions when industrial matters were to be discussed he stated the UFU would exercise their rights pursuant to clause 10 of the Agreement. [129] The relevant part of Clause 10.5(b) of the 2002 Agreement on which the union relies regarding its rights to representation and the provision of documentation states: "10.5 Subject to reasonable notice an officer/employee of the UFU may for the purposes of representing employees covered by this agreement for any legitimate purpose : (a) at any time during work hours enter the MFSSB's prescribed premises, registered office or workplace where the MFESB's employees are engaged; (b) at any time during working hours, inspect or view any work, material, machinery, appliance, document (including time and wages records), qualification of employees on the premises mentioned in part (a) above;" [emphasis added] [130] The `reasonable notice' section of the clause is not at issue here. Within the framework of the clause, the scope of union representation is given its meaning through the phrase `legitimate purpose'. All the actions encompassed in clause 10.5(b) are open to the union if the union provides reasonable notice and the representation of the employee is for a `legitimate purpose'. The meaning of `legitimate purpose' is therefore instructive in the operation of the clause. [131] The term `legitimate purpose' has been the subject of consideration by a number of Tribunals and Courts. In Morris & Ors & O'Grady & Ors, Gray J considered a case involving an exercise of powers by the Senior Management Committee of the BWIU [Federal Court (VI No 34 of 1990)] and whether the Committee exercised their power for a legitimate purpose. The decision is not instructive in this matter as the circumstances are not comparable. [132] Similarly, a decision by French J (Federal Court VI No.5 WA 5 of 1989) in OPPW(WA) v BWIU considered the actions of the National Executive of the unions and whether the ambit claim they had served on a number of employers was for a legitimate purpose in the proceedings. On its facts, this case is not of assistance in this application. [133] The Full Bench of the SAIRC Court (Cawthorne, Parsons and Gilchrist)in AMWU V Seely International Pty Ltd [(1998) 43 AILR 11 - 091] considered a clause in the relevant award which provided for union entry where the purpose is for legitimate union business. In its decision the Full Court emphasised the right of entry aspect of the dispute rather than providing guidance to the parties on what constituted legitimate business. [134] The decision did however go to the issue whether the union had to disclose the identity of the relevant member who had requested representation by a member. As a matter of course in proceedings before the Commission as currently constituted, employers have been satisfied that if the Commission is aware that a union member exists and that a request has been made, that the request is bona fide and disclosing the identity of the employee has not been an issue. The Full Court in Seely's case took a similar view stating that the Commission will usually respect the confidentiality between a member and the union but disclosure will depend on the circumstances and importance of the disclosure. [135] In this matter, the issue of disclosing the members of the UFU who sought that the union represent them in the SSO briefings has not been an issue. In any case, the Statement issued by the Commission on 9 December 2004 recognised that the MFB had agreed to several SSOs being authorised as union representatives for the purposes of the briefing on 20 December 2004. [136] I am inclined to the view, albeit that there were no specific submissions on the issue, that the parties did not in negotiating the 2002 Agreement, rely on decisions of the Courts as the basis for the choice of words in clause 10.5 on this point. More likely, and consistent with the evidence of Mr Marshall, is that a more common or usual meaning was to be attributed to the words "legitimate purpose" in the 2002 Agreement. [137] A more usual meaning of legitimate can be found through the Macquarie Concise Dictionary: legitimate : "according to law; lawful; in accordance with established rules, principles, or standards. of the normal or regular type or kind. in accordance with laws of reasoning; logically inferable; logical". [138] Clause 10 does not mean that the UFU determines when and how it will be represented. In the Direction and Statement issued by the Commission in December 2004, direct discussions between the MFB and the UFU were proposed to deal with any issues which may have arisen during the SSO briefing on which the UFU had concerns. I find that this course is the normal, logical and legitimate manner in which to address relevant industrial matters. [139] The UFU submits that the wording of clause 10.5 provides that the MFB must furnish the union with any document it so requests. If part 10.5(b) is taken on its plain meaning, as stated in the words of the clause, `any document' must be read as just that. The clause does not place any limitations or prohibition on the documentation which the union may seek to inspect. It is certainly not limited to time and wages records because these documents are separately specifically referred to as being included in the documentation which may be inspected. [140] However, the clause cannot be as unrestricted as the union submits. There are privacy provisions within Federal and State Acts of law which pertain to the rights of an individual or employee, whereby information cannot be shown or provided to a third party without the express consent of the person concerned. If the UFU relied on clause 10.5(b) of the 2002 Agreement to view "any document" without the necessary consent from an individual it would be a breach of privacy laws. The Agreement does not confer a right to the union which is otherwise denied by law. [141] Similar reservations arise with regard to a demand for MFB documents which are confidential internal documents. It would be folly for the MFB to provide confidential notes or correspondence regarding interviews with applicants to the CEO's or Senior Management positions for example, or documentation relating to sensitive financial tenders. [142] Section 170LI of the Act also places limitations on the extent of the access to documents available to a union through an Agreement, in so far as the Agreement itself must pertain to the relationship between an employer and employee. Section 170LI of the Act reads: " 170LI Nature of agreement (1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between: (a) an employer who is a constitutional corporation or the Commonwealth; and (b) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement. Note: Section 5AA also allows agreements to be made on a different constitutional basis about matters pertaining to the relationship between an employer and employees. (2) The agreement must be made in accordance with section 170LJ , 170LK or 170LL." [emphasis added] [143] SSOs are not only members of the UFU. They are first and foremost MFB employees who have exercised their right as an employee to belong to a trade union for which they are eligible, that being the UFU. [144] There are responsibilities and management prerogatives which reside with the employer which are not superseded or suppressed by virtue of the employee's membership of the UFU. The UFU has taken the position that the MFB cannot convene discussions with SSOs on the basis that some issues may have, or do have, direct or indirect relevance to industrial matters which are contained in the extant certified Agreement. [145] The MFB submissions accord with my view on the issue of the necessity for an employer to discuss issues on a day to day basis with their employees and regularly seek their advice on important strategic, planning and policy issues. By bringing together SSOs in a series of briefings, the MFB sought to organise the briefings in a cost effective manner, to maximise input from SSOs and to provide relevant and important information to them. The Commission also holds to the previous observation that the SSOs would probably support the opportunity to operate in a group, even if only because they felt that there was safety in numbers, and to work and socialise with other SSOs. [146] There are various Committees and structures to deal with different aspects of the certified Agreement. EBIC plays a central role and its sub-committees and other stand alone committees which deal with specific matters are important to the effective implementation of the Agreement. I do not accept however, that continually referring matters to a committee or not progressing a matter because a committee has been unable to reach an agreement, is reason to conclude that a proposal for change cannot be dealt with. [147] The numbers of disputes which the parties agree are currently in existence, reflects poorly on the operation of the Agreement regarding the ability of the MFB to make change and improvements to its service. The dispute regarding the conduct of SSO briefings should never have caused the problems it has nor caused the amount of hard work it has. The Commission earnestly seeks that the parties adopt the findings of this decision and work to progress the MFB as a viable and dynamic service rather than retard its growth through unworkable, outmoded and unrealistic practices. [148] With respect to the observations for the UFU regarding the process which had been followed during the hearings to progress the dispute regarding the conduct of the SSO briefings, the provisions of s.127 are relied upon. It is a mandatory responsibility for the Commission to hear and determine the application `as quickly as practicable.' On the first occasion this dispute came before the Commission, it was as an s.127 application. [149] The Commission heard brief formal submissions from the MFB and the UFU and the parties agreed to move into a conciliation conference to attempt to resolve the dispute. Commissioner Simmonds had determined in August 2004 that the requisite discussions in accordance with the Agreement had not been carried out. [150] By the time the Directions were issued on 2 December 2004, discussions had occurred and the parties were at the stage of their dispute resolution clause that, failing agreement on the issue of the SSO briefings, it was properly put before the Commission. The Directions issued by the Commission were done so in accordance with s.111 (1)(t) of the Act to allow the MFB to proceed with the SSO briefings and a further consultative process to be implemented if required. [151] The Commission took the view, perhaps in retrospect, an overly optimistic view, that the dispute regarding the conduct of briefings by the MFB of its SSOs was of the nature of the common garden variety dispute and capable of quick resolution. The Directions sought that the briefings proceed and that any problems which arose would be dealt with at discussions between the parties after as assessment of the content and conduct of the briefings. [152] In any case, the Directions of the Commission were breached by the UFU and the formal hearings requisite to consider the s.127 application proceeded. The series of SSO briefings planned by the MFB were disrupted by the UFU ban on attendance at the briefings and, even after the parties reached agreement through conciliation before the Commission, the Agreement reflected in the Statement issued on 9 December 2004, there were still problems associated with the conduct of the sole SSO briefing conducted on 20 December 2004. [153] The Commission is not satisfied that the prerequisite tests for the issuing of Orders pursuant to s.127 (2) have been met. [154] The extant Agreement has a nominal expiry date of 1 August 2005. Negotiation of a new Agreement during 2005 will provide the parties with an opportunity to include in the new Agreement, provisions which are commonly understood by the parties to the Agreement. Such is not the case in the extant Agreement. [155] For the reasons above the Commission makes the following findings; 1. The Orders pursuant to s.127 of the Act are not granted. 2. The Senior Station Officers briefings scheduled by the MFB for early 2005 should proceed. The MFB should provide the UFU with an outline of the agenda for the briefings in a timely manner prior to the briefings and, following the briefing, any papers which are not considered as confidential. 3. The UFU does not have a right, pursuant to clause 10 of the 2002 Agreement, to attend SSOs briefings. If legitimate concerns arise, from the papers provided to the union or report from members, regarding the industrial content of SSOs briefings, the UFU has a right to be appraised of the issues and to be consulted on them. BY THE COMMISSION: COMMISSIONER Appearances: M. Salmon, A. Garcia - MFESB D. Langmead - Counsel on behalf UFUA P. Marshall - UFUA A. Bandt - on behalf UFUA (2 December 2004 hearing) Hearing details: C2004/6816 & 6819 2004 Melbourne December 2, 8, 9, 22, 23 C2004/6848 2004 Melbourne December 6, 8, 9, 22, 23. Printed by authority of the Commonwealth Government Printer <Price code G>