PR956289 PR956289 Download Word Document The attached version replaces the previous version which was filed on 7 March 2005. The heading now contains the words "United Firefighters' Union of Australia". Daniel Mammone Associate to Commissioner Grainger Dated 7 March 2005 PR956289 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 (C2005/1821) Fire fighting services COMMISSIONER GRAINGER MELBOURNE, 7 MARCH 2005 Incident Management Programme DECISION INTRODUCTION [1] On 8 February 2005 Metropolitan Fire and Emergency Services Board (MFB, the applicant) applied to the Commission for an order pursuant to s.127 (2) of the Workplace Relations Act 1996 (the Act) against United Firefighters' Union of Australia (UFU, the respondent) in respect of alleged unlawful industrial action in the form of bans imposed by UFU on attendance of employees of MFB at an Incident Management Programme Workshop (IMP) on 8 February 2005. Notice of the application was served on UFU and notice of these proceedings was given by Notice of Listing on 8 February 2005 to the Federal Secretary and the Victorian State Secretary of UFU as well as to MFB. [2] The matter was first heard in the Commission on Tuesday 8 February 2005. MFB was represented by Ms M Salmon and UFU was represented by Mr D Langmead of counsel to whom leave was granted (PN5). [3] At the conclusion of the hearing on 8 February 2005 the Commission as presently constituted issued recommendations (the recommendations) which the parties agreed to comply with (PN208, PN212). It was made clear to the parties that when the matter was next listed the Commission would "then be able to hear the matter through to completion" (PN213). The recommendations provided: "1. that the Metropolitan Fire and Emergency Services Board (the Board, the applicant) provide complete information about the proposed Incident Management Workshop (the Workshop) to the United Firefighters' Union (UFU, the respondent) by 10.00am on Wednesday 9 February 2005. 2. that UFU provide the Board with its written responses in relation to the Workshop by close of business on Wednesday 16 February 2005. 3. that the Board provide any response to UFU by close of business on Thursday 17 February 2005. This matter will be listed for report back, and if necessary, further hearing at 2.00pm on Friday 18 February 2005." [4] The matter was listed for hearing on 18 February 2005 but was re-listed, at the request of MFB, and was heard again before me on Tuesday 22 February 2005. Ms Salmon and Mr Langmead both continued their appearance and tendered written statements of their positions (MFB Statement Exhibit A5, UFU Statement of Position Exhibit R3) together with witness statements (Commander Paul Swain (Commander Swain, Exhibit A4), and Mr B Angwin (Mr Angwin, Exhibit R2)). The parties then requested that the matter be adjourned into conference (Ms Salmon for MFB PN229, Mr Langmead for UFU PN237). [5] During the conciliation conference which took place during that adjournment I ordered Mr P Marshall (Mr Marshall), Victorian State Secretary of UFU to leave the hearing room. He directed the other UFU representatives to leave the hearing room with him and I informed the parties that I was terminating the conciliation conference and reconvening the hearing of the s.127 application, stating that I intended to hear the matter through to completion that afternoon. This incident will be further outlined in the evidence at [38] - [39] below. Mr Marshall then withdrew the UFU presence, including that of Mr Langmead. The hearing reconvened and I heard the further submissions of MFB and the sworn evidence of Commander Swain. At the conclusion of the hearing I issued the following directions: "1. That the transcript of today's proceedings be made available to the parties by close of business on Thursday 24 February 2005. 2. That the respondent has until close of business on Monday 28 February 2005 to make any written submissions it may wish to make in the matter. 3. That the applicant has until close of business on Wednesday 2 March 2005 to make any further submissions in reply." [6] Late on 22 February 2005, and after those directions had been issued, Mr Marshall made a formal complaint to the President of the Commission regarding my conduct towards him and the UFU during the conciliation conference that day. In that letter he states that "Commissioner Grainger has denied the ability of the union and indeed myself to place the union's position and legal argument before the commission in a professional and courteous manner". Mr Marshall goes on to state that "I am not quite sure of the intricacies however, I am seeking advice as the union and indeed myself could not appear before Commission Grainger on any matter firmly believing, based on the above experience, that we will be treated in a fair and equitable manner." [7] On 23 February 2005 MFB served on UFU the draft orders sought in this matter (Exhibit A8). [8] At 1.26 p.m. on Friday 25 February the respondent made application for disqualification of myself from further hearing of this matter on the grounds of apparent bias (Exhibit R4 cl 1). UFU further objected pursuant to s.105(1) of the Act to my exercising arbitration powers in this matter as I had exercised conciliation powers (Exhibit R4 cl 9 and 10). [9] The application and objection of UFU was listed for hearing at 2.00 p.m. on Monday 28 February 2005. In that hearing UFU was represented by Mr Langmead and MFB was represented by Ms Salmon. [10] At that hearing I placed into evidence a sworn statement from myself (PN459 and Exhibit GSG1) which set out, to the best of my recollection, what had occurred in the conciliation conference on 22 February 2005. Mr Langmead for the UFU then requested an adjournment so that the UFU could file its own affidavits in this matter (PN470). [11] Mr Langmead then raised the issue of the timetable for compliance by UFU with the Commission's directions as to the filing of submissions by UFU in relation to the s.127 application (PN481). I then outlined the steps I proposed to deal with this matter through to a decision, firstly in relation to the apprehension of bias issue, secondly in relation to the s.105 objection issue, and thirdly, if I had not by that stage made a decision to uphold either of those objections, to make a decision in respect of the substantive s.127 application by the MFB (PN484). Mr Langmead agreed to that three step course of action (PN485) as did Ms Salmon (PN487). I then gave the UFU until close of business on 1 March 2005 to file its further submissions as to the MFB's substantive application for orders pursuant to s.127 of the Act (PN488-PN501). It was also agreed by Ms Salmon for the MFB that Commander Swain would be made available for cross-examination by Mr Langmead (PN512). [12] At 4.29 p.m. on Tuesday 1 March 2005 the hearing of the UFU objections on the grounds of apprehended bias and s.105 of the Act was further heard by me. In support of those applications Mr Langmead tendered affidavits from Mr Wayne Carlson (Mr Carlson) (Exhibit R5), Mr Angwin (Exhibit R6), Mr Marshall (Exhibit R7), and Mr David Grove (Mr Grove) (Exhibit R8). In relation to the substantive matter of the MFB's s.127 application, and in compliance with the Commission's directions of 22 February 2005, Mr Langmead also tendered further written submissions (Exhibit R9), an affidavit of Mr Carlson (Exhibit R10), an affidavit of Mr Marshall (Exhibit R11) and an affidavit of Mr Angwin (Exhibit R12). [13] Mr Langmead then made a further application to the Commission pursuant to the provisions of s.107 of the Act "to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceedings should be dealt with by a Full Bench" ( s.107 (2)(c) of the Act) and stated that I must "refer the application to the President to be dealt with" ( s.107 (4) of the Act)(PN74). The grounds for that application were that I had filed my own affidavit in this matter and that the evidence in that affidavit differed from the evidence in the affidavits filed by the UFU representatives (PN78) and that this place me "in a very difficult situation in that you are a witness in your own cause" (PN78). Mr Langmead submitted that "the public interest in this instance is that very difficult situation in which the Commission is ... a witness in the case" (PN119). I then agreed to refer the matter to the President and adjourned the hearing (PN150). [14] I then immediately referred the matter to the President pursuant to the provisions of s.107 of the Act. On 2 March 2005 the President, Hon. Justice G Guidice, made the following decision: "In proceedings before Commissioner Grainger on 1 March 2005 the United Firefighters' Union of Australia made an application that the proceedings be referred to a Full Bench pursuant to s.107 of the Act. I have conferred with Commissioner Grainger about whether the application for a s.107 reference should be granted. I am not of the opinion that it is in the public interest that this matter be referred to a Full Bench. The application for reference is refused." [15] The hearing of the objection as to apprehension of bias and of the objections pursuant to s.105 and the substantive s.127 application of the Board was then re-listed for 10.00 a.m. on Thursday 3 March 2005. Early in this hearing Mr Langmead outlined a further strand of the apprehension of bias claim by the respondent against me (PN709-711, PN719, PN721). At this hearing, having considered all of the evidence before me (Exhibit GSG1 and Exhibits R5 - R8), I gave evidence under oath as to my understanding of what had occurred in the conciliation conference on 22 February 2005 (PN785 - PN798). At this hearing Ms Salmon for the MFB tendered a further witness statement of Commander Swain (Exhibit A10) who was called to give evidence and was cross-examined by Mr Langmead. Ms Salmon and Mr Langmead then made their closing submissions. I reserved my decision in relation to all aspects of the matter and adjourned (PN1574). THE EVIDENCE [16] On 28 November 2002 Commissioner Simmonds certified the Metropolitan Fire and Emergency Services Board and United Firefighters' Union Operational Staff Agreement 2002 (Exhibit R1 and PR925132 AG819934, the agreement) whose terms provided, inter alia: 1. cl 4 - the agreement remains in force until 1 August 2005. 2. cl 6 - the parties to the agreement are MFB and UFU and its members. 3. cl 7 - the agreement is to be read and interpreted wholly in conjunction with the Victorian Firefighting Industry Employees Interim Award 2000 (the award). 4. cl 9.1 - defines "consultation" as meaning "the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision" . 5. cl 9.1 - defines "change" as including, but not limited to, any change that will have an impact on employees regarding work practices or location, job security, remuneration, training or new technology or equipment or in matters pertaining to the employment relationship or in the way work is or would be carried out by an employee in any of the classifications of this agreement or any claim in relation to a matter contained in Appendix B," which relates to the Management of Health and Safety issues. 6. cl 9.2.1 - the parties commit to effective consultation and communication throughout the MFB and undertake to continue to operate the Emergency Bargaining Implementation Committee (EBIC) to facilitate the implementation of the agreement. EBIC will consider all matter relating to ongoing workplace reform and introduction of change. EBIC will comprise equal numbers of management and employee representatives as determined by the respective parties, and decision making will be by consensus (cl 9.2.2). 7. cl 9.2.5 - No change or proposals for change arising from or relating to matters dealt with in this agreement or in matters pertaining to the employment relationship or in the way work is carried out shall be implemented without referral to EBIC. 8. cl. 9.3 - Prior to the introduction of any proposed change the following will take place: any proposals relating to change from either party will be provided in writing to EBIC. The parties will have the opportunity to submit alternative proposals which must be submitted in a timely manner so as not to lead to an unreasonable delay. the party proposing the change will be required to respond to any alternative proposals, indicating which amendments to the original proposal, if any, it accepts. Where the proposal has been altered, a revised proposal will be submitted for further consideration. Written reasons for the rejection of any alternative proposals will be provided by the MFB to EBIC. 9. cl. 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: (b) at any time during working hours, inspect or view any work. Access to workplaces under the clause shall be allowed for the purposes of ... observing working conditions. 10. cl. 12 - the following steps are provided for the satisfactory resolution of any dispute or grievance: Step 1 - the dispute shall be submitted by the employee representative and/or employees to the employee's immediate supervisor. Step 2 - if not settled at step 1, the matter shall be submitted to the appropriate senior officer. Step 3 - if not settled at step 2, the matter shall be recorded and shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation. Steps 1 - 3 must be concluded within a period of ten consecutive days. Step 4 - if the matter is not settled at step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the parties within a period of one week of receipt of such submissions and endeavour to reach a satisfactory settlement. Step 5 - if the matter is not settled following progression through the disputes procedure it shall be referred by any party, to an agreed arbitrator. If there is no agreed arbitrator within 4 weeks, the matter will be referred directly to the Australian Industrial Relations Commission for decision or determination of change. While the above procedures are being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause of the agreement. 11. cl. 14 - the parties agree to continue to work making improvements in efficiency and productivity and providing safe, satisfying and rewarding employment for employees covered by this agreement. Such improvements will not be at the expense of maintaining a safe working environment or reducing public safety in any way. 12. cl. 35 - the parties recognise that the National Public Safety ITAB has developed national competency standards for fire services and that there is an agreed training framework document at Schedule 4 of the agreement which has been negotiated between MFB and UFU. The Emergency Response Training Framework (ERTF) has aligned required modules and training requirements with the firefighting classifications employed by the MFB. The parties to the agreement acknowledge that the ERTF and current training policies are agreed documents and may require modification to conform with the newly developed National Competency Standards (NCS), which at the time the agreement was entered into had yet to be implemented. MFB agrees to a consultative approach between it and the UFU representatives to facilitate the modification process to achieve conformity with the NCS. Any agreed changes as a result of this review will be incorporated into the ERTF or into new policies or procedures. [17] On 14 July 2004 Mr Arnold Garcia (Mr Garcia), Industrial Relations Officer of MFB, wrote to Mr Peter Marshall (Mr Marshall), Victorian State Secretary of UFU, in the following terms (Exhibit A1): "14 July 2004 Peter Marshall Secretary United Firefighters Union ... Dear Peter, Re: EBIC Meeting 21 July I refer to the next EBIC meeting scheduled for Wednesday 21 July. Attached is an amended EBIC Agenda which includes an additional item titled MFB Incident Leadership Program. It is intended that Commander Paul Swain will provide a presentation on this matter. Also attached is a briefing paper prepared by Commander Swain on this subject matter. Yours faithfully, (signed) Arnold Garcia Industrial Relations Officer." [18] The information in the MFB Incident Leadership Program (ILP) attached to that letter stated (Exhibit A1 and Exhibit A2): "MFB Incident Leadership Program Information for EBIC meeting August 11 2004 Background The MFB introduced an Incident Control System (ICS) in 1989, 15 years ago. Since that time the organisation has taken on an expanded emergency response role including HART, USAR, EMR, water access and trench rescue. We are now also more likely to be called on to support other agencies in long duration incident management and response. Other factors leading to a review of how we manage incidents were the review of AIIMS over the past two years by AFAC, which was signed off by member agencies recently; and issues highlighted by Operation Labyrinth. Until the Incident management review Project was established earlier this year, there has never been a review of ICS since its inception. The Incident Management Review Project has four parts, parts one and four being a re-write and our ICS and development tools to support Officers managing an incident. Part two and three involve face to face workshopping with all Senior station Officers, Commanders, ACFO's, DCFO's and CFO. Part 1: Incident Management Review and Commenced March 2004 Completion by September 2004 Alignment with AIIMS review Interoperability with other Victorian Emergency Service Organisations Learning's from Operation Labyrinth Update of all functional descriptions under MFB ICS Engagement of Commanders in review (Ops Commander training, via Zone ACFO's). Part 2: Interaction with `top 80' operational staff Commences September 2004 Completed by end December 2004 1-2 days, including pre-workshop material Use of Vector Command for simulated L3 incident management scenario Skills maintenance, skill development, non-skill assessment Incident management functions and strategy Annual incident management team workshop Part 3: Interaction with Senior Station Officers To commence February 2005 Completed mid 2005 1-2 days, including pre-workshop material Use of Vector Command for simulated L1 incident management scenario Skills maintenance, skill development, non-skill assessment Incident management functions, strategy and tactics Part 4: Incident Management Tools Paper based and electronic tools for managing an incident Aide memoirs, check sheets for ICS functional officers Completion early 2005, on-going. Recommendation That EBIC members note the report and support a greater emphasis on incident management skill enhancement and interactive exercises to increase confidence, capability and safety for all officers and fire-fighters." [19] At the EBIC meeting of 11 August 2004 the ILP was discussed and the minutes of that meeting (cl 7 Exhibit A3) state: "7. MFB Incident Leadership Program Wayne Bradborn briefed EBIC on this proposal. Peter Marshall stated the UFU endorsed this proposal in principle provided that Brendan Angwin or Wayne Carlson were consulted. Garry Martin to arrange meeting with Wayne Bradborn and Wayne Carlson." The ILP and the IMP are, in fact, identical programmes. [20] According to the submissions of Mr Langmead for UFU at the hearing on 8 February 2005 UFU notified MFB of a dispute in relation to senior station officer briefings as opposed to senior section officer incident management meetings (PN55) and that MFB had brought applications to the Commission under s.99 of the Act and had sought a s.127 order against UFU and UFU had brought a s.170LW application to the Commission in relation to union representation at meetings ( "Senior Station Officer briefings" and meetings called "SSO ICS Skills Maintenance Meetings" ) (Matters C2004/6816 as to the s.127 application; C2004/6819 as to MFB's s.99 application against UFU; and matter C2004/6848 as to the s.170LW application by UFU against MFB). These matters have been the subject of a decision by Commissioner Foggo on 2 February 2005 ( PR955362 ). It appears from paragraphs [2] - [5] and [106] of that decision that all aspects of that decision relate to the issue of union representations at Senior Station Officer briefings. At para [106] Commissioner Foggo made clear that "[i]t 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" . UFU has lodged an appeal against that decision of Commissioner Foggo (PN70). At clause [70] of that decision Commissioner Foggo found that Mr Langmead for UFU had confirmed that the UFU's "s.170LW application related specifically and only to the dispute regarding the [Senior station officer's] briefings." At clause [77] of that decision Commissioner Foggo recorded the four issues regarding senior station officer briefings which were in dispute. None of those issues related to the SSS ICS Skills Maintenance/IMP/ILP briefings. Whilst Commissioner Foggo declined to issue the orders pursuant to s.127 as sought by MFB (at [155]), Commissioner Foggo issued the following orders (at [155]): "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." It appears, on all the evidence before me, that the issue of "SSO Skills Maintenance meeting" is identical to and synonymous with the issue of Senior Station Officers attending the IMP Workshop which is the subject of the present application by the MFB. [21] According to the sworn evidence of Commander Swain (Exhibit A4, cl 7-12 and PN923-PN943, PN947-PN954) he met with Mr Angwin on 17 December 2004 as a result of directions issued by Commissioner Foggo (PN926) to discuss the IMP/ILP; made available material requested by Mr Angwin; and reminded Mr Angwin by email that if Mr Angwin required any further material or had any questions, he was to ring Commander Swain on his mobile telephone. Commander Swain gave evidence that Mr Angwin asked for a document called AFAC version three and Commander Swain told him "that we couldn't supply him that at that time, and we would see about how we go about getting him that" (PN 948). According to the submissions of Mr Langmead (PN191), Mr Angwin asked for certain information on the Australian Fire and Competency (AFAC) Standards at this meeting with Commander Swain on 17 December 2004 and was given no deadline to reply by the end of January. Commander Swain acknowledged in cross-examination that this information was not provided to Mr Angwin until 9 February 2005 (PN954). [22] In early February MFB proceeded to schedule the first IMP workshop for the morning of Tuesday 8 February 2005. Commander Swain gave evidence (Exhibit A10) as follows: "2. On the morning of 8 February 2005 I rang the all of those Senior Station Officers who were to attend the Incident Management Workshop and directed them to attend. 3. I received the following comments: a) Darren McQuaide - refused to attend, said he was acting on UFU direction b) Craig Morris - refused to attend said he was directed by Peter Marshall c) Ross Brown - was unable to contact as the Station phone was engaged. d) Damian Foletti - refused to attend, said he was acting on UFU direction e) Murray Talbot - refused to attend, said he was acting on UFU direction given by Greg Whelan f) Keith Lyon - refused to attend, said he was directed by Peter Marshall g) John Garvin - refused to attend said he was acting on UFU direction. 4. I then rang each officers superior officer ACFO Terry Hunter, Garry Martin, Peter Holmes and Tony Westcott and requested that they ring the relevant officer and direct him to attend the Incident Management Workshop." Commander Swain gave evidence under cross-examination in the hearing on 3 March 2005 that he had never heard Mr Marshall direct a UFU to union members in his presence (PN1155). Mr Marshall gave evidence at the hearing on 3 March 2005 that neither he nor any other UFU officer had directed UFU staff in the manner stated by Commander Swain (PN1365 - 1366). His evidence is (Exhibit R11 cl 9 and PN1367) that: "Prior to a scheduled SSO Incident Management Workshop on 8 February 2005 I spoke by telephone to a number of SSOs who were scheduled to attend. I advised them that the UFU did not believe the meeting should go ahead, as the UFU had notified a dispute about these workshops under clause 12 of the Agreement, and that therefore the status quo must be maintained. This required that the workshops did not take place. I advised them that the UFU's legal advice was that in these circumstances an order to attend was not a lawful direction" and that "on legal advice I informed [them] that they didn't have to attend" (PN1367). [23] When only one senior station officer reported for the IMP workshop in the morning of 8 February 2005 MFB lodged this application for orders pursuant to s.127 of the Act. [24] At the hearing on 8 February 2005 Mr Marshall gave evidence that UFU is "quite happy for the Incident Management System to proceed; we endorse it in principle; we are happy for them (MFB) to run it as long as it does conform and Mr Carlson or Mr Angwin attends, we are happy for that" (PN166-170). At the hearing on 3 March 2005 Mr Marshall gave further evidence (PN1373) that UFU "didn't have a problem with the programmes going ahead, but as long as it's not new work, that's the first thing and it doesn't actually result in de-skilling ... as well as ... we have had requests from our members to attend". Mr Marshall stated that UFU wished to have one of the following four UFU representatives attend each of the briefings (PN1379 - 1381): Station Officer Brendan Angwin, Station Officer Glen Cavanagh Commander Ian Leaves. Commander Wayne Carlson [25] The Commission's recommendations in this matter on 8 February 2005 were intended to enable MFB to provide UFU generally, and Mr Angwin in particular, with the outstanding documentation which he sought. Mr Langmead for UFU accepted the recommendation but stated that "we are not sure that the information that is to be proffered will necessarily be what Mr Angwin is seeking. We didn't have specific instructions about that, but if they are not then we will certainly let them know what it is that we seek" (PN216) [26] On the morning of Wednesday 9 February 2005 Commander Swain delivered material to Mr Marshall which included the AFAC 3 Module requested by Mr Angwin at the 17 December 2004 meeting with Commander Swain (PN954). [27] At the hearing on 22 February 2005 Mr Langmead tendered a witness statement of Mr Angwin (Exhibit R2) which states inter alia: "16. As both an officer with internal MFESB and UFU responsibility for training, I am usually provided with relevant data that I require to make an analysis of the program. I have not been supplied with all data on this occasion. I would also normally be a part of discussions aimed at reaching agreement on provision of training. 17. Despite the material supplied in relation to the Incident Planning Programme, I am still not aware of full details and in particular, have no information as to precise course content and MFESB's expectations of SSO's post training. 18. I have, however, been able to reach the conclusion based on material provided to me that this level of training has previously not been applicable to SSO's. SSO's required to exercise responsibilities in this area would, in my opinion be taking on a significant change to their existing responsibilities and that this would be a new work practice." [28] According to the evidence of Commander Swain at the hearing on 22 February 2005: 1. Over the past two years in particular, since the attack on the World Trade Centre in New York, there has been a significant shift as to how incidents are managed, from a co-operative inter-agency perspective. It is vitally important that [MFB's] processes are inter-operable with other emergency services. And as a direct result of that AFAC, which is the overall co-ordinating body for fire agencies in Australia, undertook to review the existing aims [of] the incident control system, and update that to reflect the modern situation (PN 417). 2. [MFB] "needs to inform our senior operational staff as to any changes in terminology, and what cooperative arrangements we have with other agencies" (PN418); "an incident management review project was set up [whose] ... scope was to rewrite [MFB's] incident management manual to come up with a series of aide memoirs, a checklist, to look at electronic versions of hand written documentation that would assist people in dealing with incidents" (PN418). "What we did then was to conduct two more series of workshops, one for senior operational staff, right from our chief fire officer, all of our deputy chiefs, assistant chiefs and commanders, to go through a two day incident management workshop ... that all occurred in late 2004" (PN418). "We then proposed to bring the senior station officers who were the next bracket down up to speed with any changes, and that is ... the genesis of these workshops" (PN418). "It was simply an exercise in information exchange amongst senior operational people" (PN418). The program is intended to "reaffirm and reinforce their current competencies" (PN412). 3. "There are significant public safety issues involved in the provision of the program" (PN419). "Incidents now are very rarely handled by one agency" (PN419). 4. At the meeting between himself and Mr Angwin on 17 December 2004 Commander Swain gave Mr Angwin "a copy of our overheads, other course notes that we were to hand out, and asked him what else he needed to make an informed assessment of the workshop. The only other thing that he asked for was a copy of the AFAC Aims Review Version 3" , Commander Swain undertook to see if he could get that for Mr Angwin because it was not an MFB document (PN414). On 9 February 2005 Commander Swain delivered to Mr Marshall "a copy of the AFAC Version 3 aims manual" (PN416). Commander Swain asked what additional material Mr Angwin might need but was not contacted further by Mr Angwin (PN416) before the hearing on 22 February 2005. MFB SUBMISSIONS AS TO S.127 ORDER [29] The MFB made the following submissions in this matter (Exhibit A5 and A9): 1. Opening MFB submissions (Exhibit A5): - "Response to UFU position The matter before the Commission is one which involves the attendance of Senior Station Officers at a day's workshop which covers Incident Management. The MFB has been carrying out Incident Management for some 15 years. Over the last year, there has been a review of the program and some suggestions to improve the content and material. The MFB contends that this program is not training in the context used in the Operational Staff Agreement 2002. It is a program to maintain and enhance the existing skills of Senior Station Officers. Incident Management has expanded over the last few years to include High Angle Rescue, Urban Search and Rescue Emergency Medical Response, Water access and Trench rescue incidents. We are also more likely to be called on to support other agencies in long duration or specialist incident management and response. (see Melbourne Airport 21/2/05). A comprehensive paper was forwarded to the UFU in July 2004 and a presentation was given to the EBIC group in August 2004. At this point the minutes are clear, the UFU has no objection in principle as long as a meeting was held with Commander W. Carlson and/or SO B Angwin to discuss the program. There was no mention of Union representation at this stage. Nor was there any mention that Union representation was an issue until the AIRC hearing on 8 February 2005. The MFB had no objection to forwarding the information requested by the UFU and we will go into the detail of that information, if required by the Commission, but the essence of the debate is that this does not have to conform with the training matrix nor does it have to be agreed by the UFU as it is not a form of Skill acquisition but maintenance of existing skills. The expectations of the SSO's regarding the level of responsibility, standard to which they perform and their accountabilities remain the same. Currently, SSO's act as Incident Controller at 1 st Alarm incidents, and at 2 nd act as Alarm Operations Officer, Safety Officer and/or Sector Commander. This will not change as a result of the Incident management program. An incident controller's position is a staged process and therefore the function of this role depends on the rank and responsibilities of the person carrying out this work. Therefore the delivery of this program does not change their existing work practice. But to ensure that the UFU had all relevant information at their disposal to consider and suggest comments or improvements, the following has been made available after the Commission hearing on 8 February. Facilitator guides for SSO courses were available at Training and Education, AFAC modules 4.04, 5.02, 5.03 and 5.04 were delivered to you as requested at the AIRC hearing. An electronic copy of the Emergency Management arrangements AFAC draft AIIMS Third Edition Version 1was handed to Peter Marshall at 07:30 am (10-02-05) to pass on to you. Senior Station Officer role remains unchanged for incident management (i.e. Sector Commander, Safety Officer, Operations Officer or Incident Controller). Vector Command manual sections 1 to 7. Fireground Risk Management is a component of the SSO Briefings day not Incident Management, therefore the material is not relevant to this case. There appears to be some confusion regarding the information we have forwarded to the UFU, the details of the Advanced Diploma of Firefighting Management was forwarded as requested by the UFU. This was the level of the Incident Management program which was delivered to the Commander - Operations last year. Incident Management training is delivered to recruits, Leading Firefighters, Senior Station Officers and Commander-Operations in their promotional training programs. Refresher programs are designed to reiterate the original training and enhance learnings and knowledge. The objectives of the workshop are to: 1. reinforce of existing work practices 2. Comply with AIIMS 3. Reinforce roles, responsibilities and personnel accountability. update terminology 4. Introduce vector simulator The MFB does not believe that this workshop falls under Clause 35 of the Metropolitan Fire and Emergency Services Board - United Firefighters Union of Australia Operational Staff Agreement 2002, as the Incident Management Program is not training it is skill maintenance not skill acquisition. The distinction between the two can be made by reference to the fact that the workshop does not include the fundamental components of a training program i.e. assessment and learning outcomes. Therefore, whilst the MFB has an obligation to consult with the UFU on the program as we have in July (by letter and scheduled EBIC meeting), August, (EBIC meeting) Aug/Sept (discussion with Comm W Carlson) December 2004 (discussion with B Angwin), ultimately, the MFB does not have to have the UFU agreement to run the program. This proposition has been tested and found to be so in the following decision of Senior Deputy President Drake (1 MAY 2000) PR917280 In her decision of 1/5/02 it she states that: `The MFB can institute training which is not accredited if they wish. The agreement of the UFU to the introduction of training is not a prerequisite' (p17) ` p 24, ..the issue for resolution is reduced to who it is that decides if and when training will take place, In these circumstances it is the employer who makes that decision'.. Senior Deputy President Drake's decision makes it clear that we do not have to have Union agreement on this workshop which is outside the training matrix and Agreement but we must properly and adequately consult. The MFB rejects the notion that the delivery of this program is designed to achieve a new work practice. Refresher courses which update material does not constitute new work. It is the same work in terms of level of responsibility, standard which is expected and accountability of the position. The MFB rejects the allegation that it falls foul of the "No Extra Claims clause in the Enterprise Agreement. Incident Management has been a part of the work carried out by Senior Station Officers for over 15 years. It is not a new or extra claim. The MFB also rejects the Union's proposal to resurrect the 170LW which has been decided by Commissioner Foggo. This Notice of Dispute is no longer on foot because it was abandoned by the Union. Commissioner Foggo's decision is clear with respect to Incident Management 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. (paragraph 70) 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. (paragraph 106) If we are wrong the argument being put by the UFU at this juncture is the same as that put before Commissioner Foggo in December and we rely on the Commissioner's decision particularly the following: Paragraph 127-141 1 .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] 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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". 10. 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. 11. 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. 12. 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. 13. 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. 14. 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] In any event this does not prevent us from pressing for an order under S 127. 2. Further MFB submissions (Exhibit A9): - "Metropolitan Fire and Emergency Services Board Response to UFU Submission A. Industrial Action 1. The jurisdictional requirement for the Commission to issue s127 orders are based on whether industrial action is happening or is threatened, impending or probable. 2. Industrial action was taken by seven UFU members on 8 February when they refused a direct order by a superior officer to attend Head Office at 8am for an Incident Management Workshop 3. Their reason for refusing this direction was that they were directed not to attend by the UFU Secretary Mr. Peter Marshall or UFU delegates. 4. The Incident Management Workshop was the subject of discussion at an Enterprise Bargaining Implementation Committee on 11 August 2004. These workshops were scheduled for February 2005. 5. The UFU agreed to the workshop in principle and requested that further discussions take place with training representatives Commander Carlson and/or SO Brendon Angwin prior to them being delivered. 6. An opportunity rose for the MFESB to carry out the workshops in December. 7. Dates scheduled were December 2, 6,8, and 21, 2004. 8. The Union was not notified of this change. 9. On December 2, before Commissioner Foggo, the UFU objected to the early scheduling of the workshops. The MFESB agreed to revert to the original schedule of February 2005. 10. Mr. Marshall was not present at these proceedings. 11. The Director Human Resources of the MFESB received a letter on 3 December 2004, signed by Mr. David Hamilton as Acting Branch Secretary of the UFU. (Attachment 1). 12. This is the first notice of the UFU's objection to the Incident Management Workshop. 13. The Notice of Dispute filed, on 2 December 2004, by the UFU contained reference to the SSO Briefings and ICS Skills Maintenance. 14. In the letter the Union has "assumed that a meeting convened by you under Step 4 is unlikely to resolve the matter". 15. It is the MFESB's contention that this action did not comply with Clause 12 of the Operational Staff Agreement 2002. 16. Commissioner Foggo [ PR955362 ] refers to the status of the ICS skills maintenance in her decision: (para 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. 17. It is the MFESB's contention that the UFU had the opportunity to include the Incident Management Workshops in the hearings before Commissioner Foggo. 18. Mr. Langmead in his submission to Commissioner Foggo states PN 896 Mr. Langmead," If necessary, that (ICS Skills maintenance) could be either considered extant or subject of a separate notification" 19. By not following the process outlined in Clause 12 of the Agreement nor pursuing the matter of Incident Management before the Commission, it can be surmised that the UFU has abandoned the part of its dispute relating to the Incident Management Workshop. 20. Whilst an appeal has been lodged by the UFU against Commissioner Foggo's decision, there is no mention in this appeal about the decision's treatment of the Incident Management Workshop. 21. If we are wrong, we rely upon the decision of Commissioner Foggo regarding Union representation at meetings to apply to the Incident Management Workshop. 22. Commissioner Foggo in her decision in relation to the MFESB s127 application decided that there was no industrial action because the Senior Station Officers attended the briefing. B Discretionary Factors 23. Senior Station Officers were advised by the MFESB of their expectations to attend the IM workshop at least four days prior to the Workshop being held. 24. The circumstances surrounding the scheduling of the Incident Management Workshop and the discussions between the UFU were conveyed to these Officers. 25. The Union Secretary or UFU delegate rang each officer at his home to convey the Union's position of non-attendance. 26. The Senior Station Officers who did not attend the Incident Management Workshop believed that they were following instructions from the UFU not to attend and expressed this to their commanding officer when directed to attend. (See statements by ACFO Hunter, Holmes and Commander Swain) 27. There is a history, in the MFESB, when Union members who have refused to follow Union directives, have had their membership terminated and been subjected to vindictiveness by members and Officer Holders of the Union. Actions have included being called a "Scab" and having their names posted in Fire Stations under the heading of "Scabs". 28. 28 matters out of 57 change proposals brought to EBIC were subject to grievance by the Union, this led to significant delays in implementation despite there being change provisions within the Certified Agreement. 29. None of those matters which have been implemented could be described as having a significant impact on work practice. 30. Any significant change initiated by the MFESB has been subject to UFU grievances which have resulted in: a) Bans by the UFU b) Hearings before the AIRC c) Appeals by the UFU against the Commission's decision d) Federal Court proceedings C Decision of Drake SDP 28.The MFESB relies upon the decision of Drake SDP in PR917280 because it relates to s127 and s 99 applications notified by the MFESB regarding EMR . b) The UFU did not appeal this decision c) a non-accredited course proposed by the MFESB d) consultation was carried out through EBIC e) the UFU did not agree to the proposal The principles of the decision are consistent with the matter before the Commission as presently constituted. They are: a) Consultation can be satisfied by the MFB making a decision about an appropriate course of action and then raising the matter for discussion at EBIC b) Agreement of the UFU is not a prerequisite to running a non-accredited course c) The introduction of such a course is not inconsistent with the introduction of a non-accredited course. Therefore it flows from this that the delivery of the Incident Management Workshop does not require the UFU agreement nor is it an extra claim. [30] MFB submitted a draft of the order which it seeks (Exhibit A8) and Ms Salmon stated that this had been served by Mr Garcia of MFB on UFU. UFU SUBMISSIONS AS TO S.127 ORDER [31] UFU made the following submissions in this matter (Exhibit R3 and R9): 1. Initial UFU submissions (Exhibit R3):- When this matter was last before the Commission, the UFU undertook to provide written reasons in support of its claim to have SSO Angwin attend any Incident Management Programme. As indicated in proceedings before the Commission on 8 th February 2005, this issue has been subject of discussion with MFB although, in the Union's submission, not as to the substance of the programme in detail or the right of the Union to be represented at such a programme. It is our contention that the Union has not received adequate detail to assess the true nature of the content of the Programme nor any impact on duties of MFB personnel such as would enable the Union to agree to the Programme. What discussion has taken place has been of a generalised nature only and the request for attendance of duly accredited Union personnel, in particular, Mr. Angwin or Mr. Carlson, has been refused. One outcome of the proceedings on 8 th February 2005, was that MFESB, undertook, through Ms. Salmon; "We undertook to provide the details with respect to the Advanced Diploma of Fire Fighting Management which is the Incident Management Programme, forms under the Modules 502 Incident Planning, 503 Logistics Management and 504 Incident Management Skills and we undertake to provide that information to Mr. Angwin this afternoon or tomorrow morning at the very latest" (PN 202). Later in proceedings, the Union indicated through Mr. Langmead; " .... We do of course accept the recommendation, but we are not sure that the information that is to be proffered will necessarily be what Mr. Angwin is seeking. We don't have specific instructions about that but if they are not then we will certainly let them know what it is that we seek". (PN 216). Material was provided by Ms. Salmon the following morning including an invitation to request further material if required. Subsequent requests were made to Mr. Paul Swain, Mark Milasevic and by telephone and email to Ms. Salmon. A copy of that request detailing the material sought is attached hereto and marked Annexure (1). In due course, more material was supplied and I will return to the detail of this material later in this submission. The Union has detailed the original material plus further material requested in order to demonstrate conclusively that the Union's argument that it is not privy to the actual content of the programme, expected outcomes, methods of assessment and potential changes to training methods at this stage. The Union is however, for the first time, aware of sufficient detail to confirm its original concern that the proposed programme seeks to affect changes to work practices and on examination of the detail that we now possess, constitutes a new work practice. Whilst the original intention of this written submission was to justify the Union's request for the attendance of either Mr. Angwin or Mr. Carlson at the Programme, the material supplied has convinced the Union that this process is no longer appropriate. The Union wishes to stress that this decision is made based on material supplied so far and the Union expects this decision to be further reinforced as we are made aware of the full nature of the programme and its anticipated results. In other words, it is our submission that the material now placed before us is already sufficient to constitute a claim for a new work practice and that having already crossed that threshold, this situation can only become more definite as material is made available. For reasons outlined above, this submission will continue to focus on the original point, that the Union be entitled to be represented at this programme, whenever it runs, by Mr. Angwin or Mr. Carlson, notwithstanding the fact that the Union now believes the matter should proceed in any one of a number of ways to be addressed later. For this reason, I am attaching copy of the documentation provided on 9 th February 2005, by Ms. Salmon and marked Annexure (2). This written submission will also contain a witness statement by Mr. Angwin - going to both issues, attendance and processing of a new claim, and marked Annexure (3). As the Commission is aware, the parties operate under the Metropolitan Fire & Emergency Services Board - The United Fire Fighters Union of Australia, Operations Staff Agreement 2002, this agreement had Course 35 Training, in particular course 35.1 Para (3): "The parties recognise that the document (Emergency Response Training Framework), current training policies being; ASSESSMENT POLICY & PROCEDURES. RECOGNITION OF PRIOR LEARNING POLICY & PROCEDURES. TRAINING CODE OF PRACTICE, ARE AGREED DOCUMENTS AND MAY REQUIRE MODIFICATION TO CONFIRM TO THE NEWLY DEVELOPED NATIONAL COMPETENCY STANDARDS, WHICH ARE YET TO BE IMPLEMENTED. As such, the MFESBA agrees to make available the necessary resources to facilitate this process which will involve a consultative approach between the MFESB and the UFU representatives. Any agreed changes as a result if this review will be incorporated into the Emergency Response Training Framework or into new policies or procedures" The essential thrust of Course 35 is that amendments, changes, adaptations and new material will proceed by discussion and agreement. This can only take place within a framework in which all details, however small, of the proposed change declared and discussed. There are, depending on the seriousness of the matter, a variety of processes available within the agreement for progressing such matters. In particular, the Union draws the attention of the Commission to Course 9 - Consultative Processes, Course 10 - Employee Representation, Course 11 - Introduction of Change and Course 12 - Dispute Resolution. We also draw the Commission's attention to Clause 49 - No Extra Claims. The Union asserts that the Training Modules purported to be covered within the Incident Management Programme have previously been offered only at Commander Level Training, the most recent course at this level which sought to cover the material content within these modules and did not attempt to cover all the material was delivered over a 4 day live in course. The Union makes the point notwithstanding the industrial interest at asserts in the material which may be covered, there is a serious question as to whether the content can be covered within such a time compressed framework. The training now proposed to be delivered within the programme in so far as it can be identified has not been agreed as appropriate for the SSO Level. As can be seen from Schedule 4 of the Agreement, the parties have placed great reliance on negotiating an agreed approach to training and in particular, the methodology by which training will be delivered. These include identification of the most suitable method of delivery, the support resource material required to satisfactorily achieve training goals, complete documentation in respect to ...... manuals and identification and definition of relevant assessment instruments. At this stage, there is not even agreement on whether assessment will take place far less the identification and approval of appropriate instruments. There is no agreement about the level of resourcing required, production of relevant manuals or any other aspect of the programme including, despite our attempts to discover actual content, the material to be covered within the programme other than in the most generic sense. It is the union's belief that until this point we have been given no more than an overview of the subject and that there is a possibility that the programme delivered in a short, par time format will result in an expectation that people will take responsibility for performing extremely complex tasks which potentially have life and death consequences. The Union does not believe that a short term, part time form of delivery of such complex subject matter can replace properly supervised, concentrated training and assessment as is currently undertaken. In respect of those items, the subject of Mr. Angwin's requests for further material, detailed in Annexure (1), the Union would like to point out the following: 1. Facilitator Guides, Lesson Plan and Assessments for the Modules 4.40, 5.02, 5.04, 5.03 as they were delivered on SSO quarters. The Union was supplied with generic AFAC Modules only which does not contain actual delivered content. In other words, the AFAC Modules supplied indicate only the generic framework not substance. We were not supplied with Facilitator Guides or Lesson Plans as requested above. 2. A clear and legible copy of the Power Point Presentation titled VIC Emergency Management Arrangements - VEMA. 3. AFAC Review 2004, AIIMS. The Union was supplied with the AFAC Review has sought but not the clear and legible copy of the Power Point Presentation. 4. Documentation on Fire Ground Risk Management. The Union was not supplied with this material. 5. Senior Station Officer Role. This request envisaged an explanation of the application of training outcomes in respect to duties and responsibilities of SSO's. The Union still has been given no material in respect of these expectations. 6. Vector and Vector Scenarios. The Union was simply supplied with a complete set of Vector documentation, however, no information was forthcoming as to the way in which it is proposed Vector be aligned to the actual training. Needless to say, this makes our analysis virtually impossible. The Union has always maintained, in respect of this matter that any change sought, which impacts on the training needs, responsibilities, duties and knowledge required is ultimately a part of the Union's interest. It is our view that this programme involves some change in relation to activities covered by the agreement. Indeed, the Union having analysed the material that it has been given indicates that it is now firmly of the view that the programme is in fact designed to achieve a new work practice for SSO's and as such, falls squarely within the agreement process. In particular, this matter may fall foul of the "No Extra Claims" provision, if it does, the Union is amenable to the matter being dealt with as part of the next rounds of Enterprise Bargaining. Given that this process is imminent, this would seem to be an appropriate way to deal with what amounts to a new claim. Notwithstanding the above, the MFESB, could seek to address the matter by setting out comprehensively the nature of the proposed programme, including all content, and the MFESB's expectation in respect to the ongoing position of the SSO's following the programme. This would require all the material being placed before the EBIC and the parties then entering in good faith into a proper analysis of the material and an appropriate response to the issue. On the 8 th February 2005, when this matter was before the Commission as currently constituted, the Union indicated that it believed that the action by the MFESB in attempting to deliver the programme without following the process required by EBIC i.e. notification in writing of all relevant matters including content and changes, constituted grounds for a Grievance. This Grievance was duly lodged and this was drawn to the Commission's attention by Mr. Langmead. "Sought, Grievance before Commissioner Foggo, and we just reserved our rights in relation to that" (PN 222). This may also provide an appropriate vehicle for identifying the full content and detail of the change now sought by MFESB. The Union submits that the material supplied and submission above clearly establishes the grounds for the Union's application to be involved in the running of the Programme. Notwithstanding that we now believe having obtained some of the detailed information we sought that the matter is best dealt with in one of the ways outlined above." 2. Further UFU submissions (Exhibit R9):- A. Industrial Action 1. It is a jurisdictional requirement for the Commission to issue s127 orders that industrial action is happening, or is threatened, impending or probable. 2. There is no industrial action being taken by the UFU or its members. It is complying with the requirements of the Certified Agreement, and particularly clause 12.9. 3. In December 2004 the UFU had sought to be present at meetings of SSOs on ICS Skills Maintenance (subsequently referred to as Incident Management Workshops). The MFESB told the UFU that it would not be permitted a representative (paragraph 3 of Mr Marshall's affidavit). 4. On 2 December 2004 the UFU advised the MFESB that there was a dispute between them in relation to SSO Incident Management Workshops (Exhibit PM1 to Mr Marshall's affidavit). It also notified the AIRC of the dispute (Exhibit R1). The notice referred to disputes in relation to ICS Skills Maintenance and another dispute in relation to a similar issue, attendance by UFU representatives at SSO Briefings. By notifying the AIRC the UFU was acting in accordance with clause 12 of the Agreement. 5. On 6 December 2004 the matter came before Foggo C, together with an earlier dispute notified by the MFESB and an application by the MFESB for s127 orders, both in relation to SSO Briefings (as distinct from incident management workshops howsoever described). The matters were the subject of hearings on 6 and 8 December2004, and conciliation conferences on 8 and 9 December 2004. During the conciliation conferences, it became apparent that further meetings on ICS Skills Maintenance were not scheduled until February 2005. On the basis that this timetable allowed the parties time to confer about this, the part of the dispute dealing with ICS Skills Maintenance was deferred, and the parties and the Commission concentrated their efforts on that part of the dispute dealing with SSO briefings (paragraph 4 of Mr Marshall's affidavit). 6. An agreed procedure was adopted to permit an SSO briefing to proceed on 20 December 2004, but further disputation arose after that, and the matter came before Foggo C again on 22 and 23 December 2004. During those proceedings a number of references were made to the ICS Skills Maintenance part of the dispute. A copy of an extract of the transcript is attached as UFU 1. At PN 843 Mr Langmead said in part: ".....the other type of briefing about skills maintenance was in contention. Now, that has been put off for further discussion. They are the meetings which aren't going to take place until later next year...". The Commission's response in the next paragraph is a reference to the Commission's understanding about something that occurred in conference in the MFESB's matter on 2 December 2004. 7. Ms Salmon for the MFESB did not take issue with Mr Langmead's characterisation of the situation. 8. At PN891 - 896 the following exchange took place: PN891 THE COMMISSIONER: Mr Langmead, I know we have discussed this in conference, could you just confirm for the purpose of transcript, please, the understanding concerning the matters that - which are the subject of the section 170LW from the MFB with regard to clause 10. PN892 MR LANGMEAD: Yes, Commissioner. Relevantly for the proceedings, as they have taken place today, and for the application brought under 127 and for part of the 170LW, it relates to the application of clause 10.5. In particular, as to whether clause 10.5 entitles the UFU to have representatives attend SSO briefings and to observe the work and to exercise the other functions set out in 10.5. But it is particular to those SSO briefings. PN893 THE COMMISSIONER: Yes. PN894 MR LANGMEAD: And only the SSO briefings of the former sort. We haven't addressed the Commission or put our minds to the other one that is - the skills maintenance one. PN895 THE COMMISSIONER: Right. Thank you. PN896 MR LANGMEAD: If necessary, that could be either considered extant or subject of a separate notification." 9. The Commission's comments in her decision about the limited nature of what was before must be read subject to those discussions. 10. The dispute about ICS Skills Maintenance is extant and part heard by Foggo C. Therefore the status quo as prescribed in clause 12.9 is to be maintained. The status quo is that no such programme takes place (see Affidavit of Mr Marshall paragraph 2). 11. Additionally, the UFU has notified the MFESB of a dispute about the content of the proposed Incident Management Workshops (Affidavit of Mr Marshall Exhibit PM2). This also necessarily invokes clause 12.9. 12. The dispute procedure will resolve the issues of content of the workshops, and representation at them. That process has not been completed. It is not a process which is addressed by the application for s127 orders. 13. Until the disputes have been resolved, the status quo is that there are no workshops. Until they are resolved, it is not possible to conclude that any party will act other than in accordance with the outcomes of the process. 14. For example, a possible outcome is that the workshops are to take place by agreement following the process in clause 12.6, and the Commission determines in the part heard dispute, that the UFU is entitled to have representation at them. There is no evidence about any party's response to such an outcome. 15. The UFU and its members are acting entirely in conformity with the Agreement, and it is the MFESB which is breaching the Agreement by issuing unlawful directions and attempting to impose the change despite the requirement to maintain the status quo. 16. Further and alternatively, the advice given by the UFU (Mr Swain PNPN427; Affidavit of Mr Marshall paragraph 6) cannot constitute industrial action. It is but advice. 17. Foggo C in her decision in relation to the MFESB s127 application which alleged that the UFU was taking industrial action in relation to SSO briefings by its members not attending, decided that it was not industrial action (Print PR955362 ; [123]). 18. The UFU objects to the evidence from the bar table from Ms Salmon about alleged conduct of UFU employees (PN443). It is vague, unsupported by particulars, and is challenged by the sworn evidence of Mr Marshall (paragraph 9). B. Discretionary Factors 19. If, contrary to the submissions in Part A above, the Commission is persuaded that either the UFU or its members have taken or will take industrial action, the Commission should exercise its discretion and not issue s127 orders for the following reasons. 20. The UFU and its members have an honestly and reasonably held belief that they are acting in accordance with the terms of the Agreement. (Affidavit of Mr Marshall paragraph 6,8 and 9). They believe (and have been advised) that the MFESB is required by clause 12.9 to maintain the status quo, and that the status quo is that the workshops do not take place pending the resolution of the disputes about them. They do not believe that any industrial action has been taken, and did not intend to have taken any industrial action. If the Commission decides that they are wrong and that the conduct is industrial action, then the appropriate course would be to permit the UFU to assess its position in the light of that determination. 21. The MFESB has not made any attempt to explain why it considers it does not have to maintain the status quo, but has pressed ahead regardless. (Affidavit of Mr Marshall paragraph 7). The conduct of the MFESB is unreasonable and should be held against it in considering whether to issue orders. 22. There are no public safety reasons for the granting of orders. Mr Swain's untested evidence is vague and the product of leading. The evidence of Mr Carlson is to the contrary. 23. Ms Salmon recounted a number of issues which the Commission had dealt with, and alleges that there is a culture of industrial disputation (PN373-378). Those matters are or were matters being dealt with in accordance with clause 212.7 of the Agreement. The parties agreed on a process for settling disputes which included recourse to the Commission if the matter could not be otherwise resolved. It is absurd to complain when one party or other utilises that agreed process. The evidence of Mr Marshall is that many more issues are resolved without recourse to arbitration by the Commission (paragraph 11). 24. Ms Salmon appears to be submitting that because there is industrial disputation as manifested by Commission hearings, there is industrial action taking place. The evidence of Mr Marshall (paragraph 11) is to the contrary. As the Commission well knows, there can be disputation without industrial action. Industrial action is usually but a manifestation of an underlying industrial dispute. 25. The UFU has attempted to resolve the issues relating to the proposed incident management workshops in accordance with the Agreement. It remains keen to finalise the resolution through the disputes procedure. It has sought discussions with the MFESB regarding the latest dispute. The present proceedings have diverted attention from the resolution of the disputes in accordance with the processes of the Agreement. C. Decision of Drake SDP 26. The MFESB rely on the decision of Drake SDP in PR917280 . The dispute in that matter was arbitrated under clause 12.7 of the Agreement ([7]). 27. The question in dispute in that matter was as to whether the MFESB was able to make a change to the time at which a particular course of training could be conducted without the UFU's agreement. SDP Drake held that the MFESB was able to implement that change without the UFU's agreement. 28. This is a different issue to those between the parties in the clause 12 disputes about the incident management workshops referred to in paragraphs 4 and 11, and the decision has little bearing if any on those disputes. 29. In any event, this present proceeding is an application for orders under s127 . It is not a clause 12.7 arbitration. The questions in this proceeding are whether there is industrial action, and if so whether the Commission should make any orders. They are quite different questions from those before Drake SDP, and the decision is of no assistance to the present proceedings. D. Draft Orders 30. The draft orders do not define the precise conduct which is sought to stop or not occur. 31. The orders are too wide and uncertain. 32. The Commission does not have the power to make the orders in the proposed form. The draft orders are not orders under s127 . UFU SUBMISSIONS AS TO DISQUALIFICATION FOR APPREHENDED BIAS AND OBJECTION PURSUANT TO S.105(1) OF THE ACT [32] UFU made the following submissions on this aspect of the proceedings (Exhibit R4): Application for disqualification for Apparent Bias 1. The UFU applies for Commissioner Grainger to disqualify himself from hearing this matter on the grounds of apparent bias. 2. On 22 February 2005, during a conference chaired by Commissioner Grainger, Mr Marshall, Branch Secretary of the UFU, Mr Carlson, a Commander-Operations, and a Vice President of the UFU Victorian Branch, Mr Angwin, a Station Officer who is a member of the UFU's Committee of Management, Mr David Grove, the Senior Industrial Officer of the UFU Victorian Branch, and Mr Langmead of Counsel, were present during the conference on behalf of the UFU. 3. As Mr Angwin was answering a question from Ms Salmon, Mr Marshall, Secretary of the UFU, asked Ms Salmon for clarification of what she was asking. The Commission told Mr Marshall "who gave you the floor" and to "shut up, shut up" in an aggressive, loud and condescending manner. Mr Marshall protested about being spoken to in this way, and Commissioner Grainger then demanded that Mr Marshall leave the room by shouting "Get out, get out", accompanied by finger pointing towards the door. The Commissioner said that the conference was ended and he would proceed to hearing the MFESB's application. The UFU representatives left the hearing room. 4. The Commission subsequently characterised what had occurred as an inability of the UFU to accept a direction from the Commission as to their conduct during the conference (Transcript PN242). The UFU rejects the characterisation of these comments as being "directions', and denies that it did not comply with any directions. 5. The principle applying to bias is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it: Livesy v NSW Bar Association 151 CLR 288 at 293-4; Re Finance Sector Union of Australia; Ex p Illaton Pty Ltd (1992) 66 ALJR 583, 107 ALR 581. It is not necessary to demonstrate that the Commissioner was actually biased. 6. It is well settled that the Industrial Relations Arbitration Commission is bound to act judicially Re Australian Bank Employees Union,; Ex parte Citicorp Australia (1989) 167 CLR 513. 7. In Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407 the New South Wales Court of Appeal described the trial judge's statement to the Plaintiff to "shut up" as "most unseemly", and said: "The use of such language, in our opinion, falls far short of acceptable judicial behaviour, and such a remark to a witness, combined with other matters, might lead to an apprehension of bias." (at [43]), and "The reasonable bystander would have heard her Honour tell Mr Damjanovic to, "shut up", language quite inappropriate to a judicial officer exercising judicial power in Court, or, perhaps, at all." (at [74]). It concluded: "[159] At times, as we have said in the course of our reasons, her Honour's impatience and rudeness exceeded what, in our opinion, is appropriate judicial conduct. As Kirby P, Clarke JA and Hope AJA said in Toner v Attorney General for New South Wales (Court of Appeal, 19 November 1991, unreported): "Allowing for the wisdom that can accompany hindsight, it is clear that circumstances such as the foregoing should have been met by Lloyd-Jones DCJ. First, his Honour should have attended more closely to what it was the appellant was striving to say to him. Whilst there are duties of courtesy imposed on legal representatives as a corollary of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times". Whilst these words were spoken in the context of a contempt case, they seem to us to have general application. Her Honour failed all these tests. [160] The duties that judicial officers listen patiently and carefully and retain self control at all times have various purposes. First, a patient and careful listening to the evidence will enable the judicial officer to understand, as well as possible, the cases being made by the parties and the evidence relevant to those cases. On that basis the judicial officer is in a far better position to make a proper evaluation of the evidence in the light of the issues raised and the submissions made. In these circumstances, the judicial officer should be in a far better position to decide the case properly, as opposed to one who does not follow those courses. [161] Secondly, the observance of such duties upholds the standing of the Court in the community as providing careful and impartial adjudication of disputes between the litigants. Obviously, in the vast majority of cases, one party will lose. There is much anecdotal evidence to support the view that a losing party, whilst usually disappointed, will accept that situation if that party believes that his or her case has been considered properly and thoroughly - in other words if the losing party is able to say that the Court has provided him or her with a "fair go". [162] .......... [163] Fourthly, and this is probably the most important consideration, failure to observe the duties leads to an erosion in the public's perception that the Court is administering the law fairly to all parties and, thus, to a lack of confidence in the administration of justice. Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Conduct by a judicial officer, which may cause that confidence to be diminished, is to be deplored. ........ Further a judicial officer should not, by acting contrary to these basic requirements of patience, courtesy and self restraint, fuel scepticism or suspicion, however wrongly it may be held, of the Court system." 8. The UFU submits that a reasonable bystander would conclude from the Commissioner's intemperate statements to the Secretary of the UFU to `shut up, shut up', and to `get out, get out', together with his demeanor when saying this and finger-pointing, his action in ending the conference, and his characterisation of what occurred in the conference, that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the matter. Accordingly, the Commissioner should disqualify himself. Objection under s 105(1) of the Workplace Relations Act 1996. 9. The UFU advises that pursuant to s105(1), it objects to Commissioner Grainger exercising arbitration powers in this matter as he has exercised conciliation powers. 10. The UFU submits that the effect of s105(1) is that once a party has objected, it is mandatory that the member not exercise the powers. MFB SUBMISSIONS AS TO DISQUALIFICATION FOR APPREHENDED BIAS AND OBJECTION PURSUANT TO S.105 OF THE ACT. [33] MFB made the following submissions (Exhibit A11): In Livesy v NSW Bar Association 151 CLR 288-301 At p 300 it states: `Two members of the Court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected. The question which arises is, whether in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon Case might result in the proceedings against the appellant being affected by bias by reason of prejudgement. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that that question must be answered in the affirmative.' In Livesy, the members of the Court had heard a prior case involving the witness and formed a negative view regarding her credibility. On this basis the High Court held the view that a fair-minded person might entertain apprehension of bias by reason of prejudgement of the issues or the credibility of a witness. Prior to 8 February 2005, Commissioner Grainger had no experience with the MFB or UFU. There is no evidence that he had formed a negative view. To determine whether Commissioner Grainger had the ability to bring an impartial and unprejudiced mind to the resolution of the matter at hand, there must be a connection between his actions and the questions in the proceedings. When the exchange between Mr Marshall and the Commissioner occurred Commissioner Grainger was attempting to regulate a discussion which had become unruly. He had not yet heard submissions from the parties on the matters relating to the s127 application. Therefore it is the MFB's contention that the Livesy case does not support the conclusion drawn by the UFU. In Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407 there was a long series of issues between the Judge and party and the party's advocate. Mr. Marshall is neither in this instance. He was merely a participant in the conference. But the comments made by the UFU regarding the words "shut up" are taken out of context when reading the original decision, particularly paragraphs 157-158 [157] It is convenient to set out, in somewhat summary form, the conclusions reached thus far, First as we have announced, we consider that this Court should allow the appeals and set aside her Honour's judgements, In our opinion those orders are justified on the ground of apprehended bias flowing simply from her decision in the Invancic case. [158] Secondly, we consider that those orders are also justified by the following matters; (a) Her Honour's ever increasing criticism of Ms. Vukic's appearance for Mr Damjanovic concluding with her reference to providing sufficient rope to hang themselves, all of which was accompanied by the several statements to which we have referred, which can properly be described as threatening; (b) Her Honour's constant refusal to allow Ms. Vukic to explore matters of motive, notwithstanding that she allowed Mr. Cohen to do so, and notwithstanding that, as a matter of law, they were relevant to the issue and to credit; (c) Her Honour's abruptness with Ms. Vukic and her rudeness to her and Mr Damjanovic indicated by the words she used, including sarcastic comments; her frequent, almost instantaneous, interruptions of Ms. Vukic; her refusal to allow Ms. Vukic to elaborate on any propositions; and her requirement that Ms. Vukic not look in the direction of Mr. Damjanovic on two occasions; (d) Her Honour's wrong statements as to the correct legal position to Ms. Vukic including the nature of the issue to be determined, the way in which it could be ventilated, the extent to which re-examination may go, the limits on cross-examination once there was a denial, and reference to other proceedings constituting an abuse of process; (e) Her Honour's "Dorothy Dix" questions to the defendants' witness and (f) Her Honour's reference to "lies" and "liar" in the context of Mr. Damjanovic and his evidence. The Commissioner's use of the words shut up was an isolated incident. Our conclusion is best summarised In Re Finance Sector Union of Australia; Ex p Illaton Pty Ltd (1992) 107 ALR 581/ (1992) 66 ALJR 583. 2. The precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal.... 4. In these circumstances, the need for caution which this Court has consistently identified (2) See, e.g., Re J.R.L; Ex parte C.J.L (1986)161 CLR 342, at p 352; Re Polites (1991) 173 CLR, at pp 86-87; Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 , at p 116 in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter. It is the MFB's view that these cases do not support the UFU's allegation of bias. It is our contention that there are no grounds upon which the UFU can entertain a reasonable apprehension that Commissioner Grainger would not decide the case before him impartially or without prejudice. The Commissioner's conduct whilst, perhaps unorthodox, was an attempt to facilitate the orderly conduct of the conference. It does not follow that his actions demonstrate that he cannot bring an unbiased mind to the issues to be decided. Objection under s 105 (1) of the Workplace Relations Act 1996 The application of s105 of the Workplace Relations Act has been determined by a Full Bench of the AIRC in Worley Ltd and another and the Australian Workers' Union and others ( PR917278 ). P 23 "Accordingly, it is our view that s 105 has no application to proceedings under s127 " Therefore there is no effect of s 105(1) on the Commission in this matter." LEGISLATION [34] Section 105 of the Act states, inter alia: (1) Where a member of the Commission has exercised conciliation powers in relation to an industrial dispute, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the industrial dispute if a party to the arbitration proceeding objects. (2) The member shall not be taken to have exercised conciliation powers in relation to the industrial dispute merely because: (a) after having begun to exercise arbitration powers in relation to the industrial dispute, the member exercised conciliation powers; (b) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or (c) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present. [35] Section 111(1) of the Act states, inter alia: (1) The Commission may: (a) take evidence on oath or affirmation; (b) make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including: (i) a provisional award or order; or (ii) an interim award or order; (c) in accordance with Division 4 of Part VIB, certify an agreement; (d) give a direction in the course of, or for the purposes of, the hearing or determination of the industrial dispute; (e) make an award or order including, or vary an award or order so as to include, a provision to the effect that engaging in conduct in breach of a specified term of the award or order shall be taken to constitute the commission of a separate breach of the term on each day on which the conduct continues; (f) set aside, revoke or vary an award, order, direction, determination or other decision of the Commission; (g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears: (i) that the industrial dispute or part is trivial; (ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State industrial authority; (iii) that further proceedings are not necessary or desirable in the public interest; (iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or (v) that a party to the industrial dispute: (A) has breached an award or order of the Commission or a certified agreement; or (B) has contravened a direction or recommendation of the Commission to stop industrial action; or (C) has contravened a recommendation of the Commission under section 111A A; (h) hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear; (j) sit at any place; (k) conduct its proceedings, or any part of its proceedings, in private; (m) adjourn to any time and place; (n) refer any matter to an expert and accept the expert's report as evidence; (o) direct parties to be joined or struck out; (p) allow the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding; (q) correct, amend or waive any error, defect or irregularity, whether in substance or form; (r) extend any prescribed time; (s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute; and (t) generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute. [36] Section 127 of the Act states: (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. THE FIRST ISSUE - UFU CLAIM REGARDING APPREHENDED BIAS [37] The UFU submission is based on the claim that (Exhibit R4 cl3): "As Mr Angwin was answering a question from Ms Salmon, Mr Marshall, Secretary of the UFU asked Ms Salmon for clarification of what she was asking. The Commissioner told Mr Marshall `who gave you the floor' and to `shut up, shut up' in an aggressive loud and condescending manner. Mr Marshall protested at being spoken to in this way, and Commissioner Grainger then demanded that Mr Marshall leave the room by shouting `get out, get out' accompanied by finger pointing towards the door. The Commissioner said that the conference was ended and he would proceed to hearing the MFESB's application. The UFU representatives left the hearing room". [38] Having both submitted my own sworn statement as to my recollection of events at the conciliation hearing on 22 February 2005 (Exhibit GSG1); having received into evidence the affidavits of Messrs Carlson, Angwin, Marshall and Grove (Exhibit R5 - R8), at the hearing on 1 March 2005; and having considered all of that evidence before me I then gave sworn evidence at the hearing on 3 March 2005 that I found the events leading up to and at of that conciliation conference to have been as follows (GSG1 and PN785 - PN788): 1. Prior to 8 February 2005 I had never, to the best of my knowledge, heard either of the United Firefighters' Union (UFU) or of any of its office bearers in the State of Victoria. I was therefore not in a position to have any opinion either of the UFU or of its office bearers and had no opinions on that subject (Exhibit GSG1). 2. On 8 February 2005 I was allocated the task of hearing an application pursuant to s.127 of the Workplace Relations Act 1996 (Cth, the Act) by the Metropolitan Fire & Emergency Board Melbourne (the MFB) against the UFU its office bearers and members. I formed no opinion or conclusion about the UFU, its office bearers or its members on the basis of the MFB's application in this matter (Exhibit GSG1 cl 3). 3. On 8 February 2005 I first heard the MFB's application and issued a number of recommendations regarding the exchange of information between the parties. UFU was represented by Mr Langmead and I am aware that the Victorian Secretary of UFU, Mr Marshall, was present on that occasion. He made no impression on me and at 22 February 2005 I had no recollection of what he looked like. Once again I formed no view at that hearing either of the UFU or of any of its office bearers or members (Exhibit GSG1 cl 4). 4. On 22 February 2005 I heard the MFB's application for the second time and once again the UFU was represented by Mr Langmead who at the start of the hearing was accompanied by a workplace delegate called Mr Angwin. The MFB was represented by Ms Salmon. Ms Salmon and Mr Langmead both tendered written submissions. At the request of the parties the matter was adjourned into conference to discuss the exchange of information in compliance with my recommendations of 8 February 2005. It was at the request of the parties that I remained in and chaired the conciliation conference (Exhibit GSG1 cl 5). 5. At the outset of the conciliation conference I asked Mr Angwin of the UFU to state his concerns and asked him to move to the bar table to speak (Exhibit R6 cl 4). 6. After the conciliation conference had been underway for some minutes and whilst either Mr Angwin was still speaking or Ms Salmon was responding to Mr Angwin, the door of the hearing room opened and a man entered, announced that "I was held up elsewhere" and sat at the end of the bar table next to Mr Langmead (Exhibit R6 cl 5; Exhibit R7 cl 3). I had no recollection of having seen this person before and concluded that it must be another UFU delegate. The person did not say who he was and I did not at any stage until the end of the conciliation conference conclude that it was in fact Mr Marshall. 7. While Ms Salmon was speaking, Mr Angwin interjected and sought to speak over her (Exhibit R6 cl 5 and GSG1 cl 7). I asked him very politely not to intervene until Ms Salmon had finished speaking (Exhibit R6 cl 5 and GSG1 cl 7, Exhibit R8 DG1). He complied with this direction appropriately (Exhibit GSG1 cl 7). Ms Salmon then recommenced speaking and the person at the end of the bar table, who I now know to be Mr Marshall, began to interject and speak over her (Exhibit R6 cl 5, Exhibit R7 cl 4) because he had become "concerned that Ms Salmon was attempting to misrepresent what Mr Angwin was stating, hence I asked a question to clarify what she was saying or inferring" (Exhibit R7 cl 4). 8. Ms Salmon began speaking again and Mr Marshall again interrupted her "to explain to Ms Salmon that she would need to be precise" (Exhibit R8 DG1). 9. At that point I then said very loudly, possibly pointing directly at Mr Marshall since I did not know his name but understood he was a UFU official, "shut up - who gave you the floor" (Exhibit R8 DG1). 10. Mr Marshall stared back at me and continued with what he had previously been saying to Ms Salmon, as if I had not challenged his right to take the floor while another person was speaking (Exhibit GSG1 cl 7). 11. I then said to him very firmly and loudly, "shut up or get out" (Exhibit GSG1 cl 7, Exhibit R8 DG1, Exhibit R7 cl 5). 12. Mr Marshall then turned away from me and appeared to be speaking either to himself or to the other members of the UFU team, not to me, saying "I will not be spoken to like that - no one speaks to me like that" (Exhibit GSG1 cl 7, Exhibit R7 cl 5) 13. As he was continuing to disrupt the conference by these remarks I then said "get out" and pointed to the door (Exhibit GSG1, cl 7, Exhibit R8 DG1). I also said to him "if you behave like that in my hearing room you will be spoken to in that way. I will not have people speaking over other people in this way" Exhibit GSG1 cl 7). 14. Mr Marshall then stood up very quickly and said he was leaving and he ordered the other members of the UFU team to leave the room (Exhibit R7 cl 7, Exhibit R8 DG1, Exhibit GSG1 cl 8). 15. Before they could comply with his direction I said "I am terminating the conciliation conference and recommencing the hearing of the s.127 application" . I also said "I intend to hear the s.127 application to completion today" (Exhibit GSG1 cl 8, Exhibit R8 cl 4). 16. I then stood to withdraw from the hearing room as Mr Marshall told Mr Langmead to leave the hearing room. I then said "I don't know how you are accustomed to behave before other members of the Commission but I will not have you behave in this manner in any proceedings before me" (Exhibit GSG1 cl 8). 17. Mr Marshall, Mr Carlson, Mr Angwin and Mr Grove then began leaving the room (Exhibit GSG1 cl 8). 18. Mr Langmead then politely stated that he must leave the room as his instructor required him to do so (Exhibit GSG1 cl 8). I excused him but, to the best of my recollection, reiterated that the s.127 hearing was about to recommence (Exhibit GSG1 cl 8). 19. I then withdrew from the hearing room prior to recommencing the hearing of the s.127 application (PN787). 20. At the commencement of the hearing of the s.127 application I noted that "we have reconvened after the conference, that the UFU has withdrawn during the conference because they were unable to accept a direction from the Commission as to their conduct during the conference, and I have reconvened with the intention that the s.127 application will proceed" (PN242) [39] In addition to those findings as to the facts of what actually occurred I make the following additional observations: 1. My dealings with UFU, including Mr Marshall, at the hearing on 8 February had been completely courteous and the recommendations I made on that day were clearly intended to meet the UFU's desire to be given further information by MFB about the IMP workshop. 2. My reaction to Mr Marshall's conduct in twice interrupting Ms Salmon while she was speaking was in the context of my having already very politely told one UFU representative, Mr Angwin, not to interrupt Ms Salmon while she was speaking. 3. Mr Marshall's second interruption to Ms Salmon "to explain to Ms Salmon that she would need to be precise" (Exhibit R8 DG1) struck me forcefully as being belittling to Ms Salmon's role as MFB representative in these proceedings, lecturing her on how she should be doing her job. I was very disturbed and felt that I needed to bring his unwarranted and inappropriate intervention to an immediate end and ensure that he did not act this way again; at least in this conference. 4. I honestly believed, whether correctly or incorrectly, that the UFU representative who I now know to be Mr Marshall, was intending to show Mr Angwin and the other UFU representatives present that whilst I had been able to bring Mr Angwin to order to enable Ms Salmon to finish what she was saying, he (Mr Marshall) would not be so brought to order and would insist on interrupting Ms Salmon, which the evidence establishes clearly he did twice before I stopped him. 5. The words I then used are not words I have ever used in any proceeding before me in this Commission. They were the words which simply came forward as a response to my observation of what Mr Marshall was doing. With the benefit of hindsight I might well have chosen to use a different set of words to bring Mr Marshall's interjections to an end. I am absolutely certain that I was bound, as the person chairing the conciliation conference, to do something urgent to ensure that Ms Salmon was given a fair go in either asking for information from or presenting information to the UFU representatives at the conference and being allowed to exercise her role as MFB's representative in these proceedings. 6 No remark I made is attributable to any other subject matter than Mr Marshall's two interruptions of Ms Salmon after I had already directed another UFU representative politely not to do so and in no way did I give any indication that I had formed any view as to the outcome of MFB's application pursuant to s.127 of the Act. 7. The environment in which this episode occurred was that of a conciliation conference in this Commission and these are, I believe, known to be a very robust environment in which I am accustomed to hearing abuse and bad language. My role in the proceedings was not to hear evidence or form any opinion as to what was being said. Rather my role was to facilitate an orderly process of exchange of information and views between the parties. In particular I was to ensure that each party was given a fair go in stating their positions. [40] UFU has submitted (Exhibit R4 cl 5) that "the principle applying to bias is well settled ... that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial or unprejudiced mind to the resolution of the question or questions in it" - Livesy v NSW Bar Association 151 CLR 288 at 293-4. UFU did not submit that I was actually biased in the matter but only that there was reasonable apprehension of bias. UFU also relied on a decision of the NSW Court of Appeal in Damjanovic v Sharpe Hume & Co and others [2001] NSWCA 407 in which the use by the trial judge to a plaintiff of the words "shut up" was described as "most unseemly" and "the use of such language ... to a witness, combined with other matters, might lead to an apprehension of bias". [41] As I pointed out at the hearing on 2 March 2003, a more recent statement of the High Court on the issue of disqualification for interest or bias is that of Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing, in Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277: 1. "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge, as in the present case, the governing principle is the apprehension of bias principle: that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide ... " (at [6], [83] [182]). See also the High Court decision in Johnson v Johnson (2000) 74 ALJR 1380 at 1382 [11]. 2. " The question is one of possibility (real and not remote), not probability. The test does not require a conclusion about what factor actually influenced the outcome " [7], [30] [182] 3. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits" [8]. [42] As to the decision of the NSW Court of Appeal in Damjanovic , which is not binding on this Commission, MFB has submitted (Exhibit A11) that in that matter "there was a long series of issues between the judge and the party and the party's advocate. Mr Marshall is neither in this instance. He is merely a participant in the conference". MFB further submitted that: "the Commissioner's use of the words shut up is an isolated incident" ; and "the Commissioner's conduct whilst, perhaps unorthodox, was an attempt to facilitate the orderly conduct of the conference. It does not follow that his actions demonstrate that he cannot bring an unbiased mind to the issues to be decided". [43] Having considered all of the evidence and the submissions of the parties I decline to disqualify myself from hearing this matter on the grounds of apparent bias for the following reasons: 1. There is no allegation by UFU of actual bias (PN717). 2. The evidence is quite clear, and the transcripts of all of the hearings in relation to this matter provide that evidence, that I was consistently courteous to the parties and their representatives in the hearings, and my recommendations of 8 February 2005 sought to be even-handed between the parties. 3. The evidence as to the exchange between Mr Marshall and myself in the conciliation conference on 22 February 2005 shows that my remarks to Mr Marshall were solely focussed on his own inappropriate conduct in twice speaking over Ms Salmon, the representative and spokesperson of the applicant, when I had already had cause politely to reprove another UFU representative, Mr Angwin, from engaging in just such conduct with regard to Ms Salmon. 4. It was, on the evidence, essential that I take some action to rein Mr Marshall in, and the question is only whether the use of the words "shut up - who gave you the floor" to a person who had entered the proceedings when they were well underway and who had not identified himself to me when he entered the room, are sufficient to have given rise in the mind of a fair-minded lay observer to a reasonable apprehension that I might not bring an impartial mind to the resolution of MFB's application in this matter for orders pursuant to s.127 of the Act. The same test applies to each of the following remarks which I made and which were, after Mr Marshall continued to speak when I had told him not to, to either "shut up or get out". Once again, Mr Marshall was not giving sworn evidence in the witness box and I was not hearing evidence. Rather I had issued a direction which he had not complied with. He then chose to challenge my direction by continuing with the course of action I had told him to cease, that is taking the floor and speaking out of turn when someone else was speaking. Mr Marshall then addressed himself to others in the room, stating that "I will not be spoken to like that; no one speaks to me like that". At that point I insisted that he leave the room because he was continuing to disrupt the proceedings. I told him to "get out" and pointed to the door. I also made clear my concern about one person not speaking over another. Mr Marshall then ordered all UFU representatives from the room and I ordered the termination of the conciliation conference and the reconvening of the hearing of the s.127 application, indicating my intention to hear the matter to completion that day. In fact, prior to Mr Marshall complaining to the President of the Commission later on 22 February 2005, and well before the making of the application for disqualification on 25 February 2005, I ordered the making of the transcript available to UFU and directed that it make such further submissions as it chose to in relation to the MFB's application for orders pursuant to s.127 of the Act. 5. When considering the two steps which the High Court cited in Ebner (2001) 75 ALJR 277 at [8] as being necessary in apprehension of bias applications: a) What is said might lead me to decide this case other than on its legal and factual merits is that I told Mr Marshall in a conciliation conference, when he was interrupting Ms Salmon for the third time (including the earlier interruption by Mr Angwin which I had politely dealt with), to "shut up" and asked him "who gave you the floor" and told him to "shut up or get out" when he continued to speak in defiance of my direction; ordered him to "shut up or get out" when he continued to make remarks which I saw as disrupting the conciliation conference; reconvened the hearing of the s.127 application, declaring my intention to hear it to completion that day; and stated at the recommencement of that hearing that the "UFU has withdrawn during the conference because they were unable to accept a direction from the Commissioner as to their conduct during the conference" . b) I cannot find, in all honesty, any logical connection between those various matters, which entirely relate to Mr Marshall's repeated interruptions of the MFB representative, Ms Salmon, while she was speaking and his refusal to comply with my direction to stop interrupting the proceedings, and the fact that I might deviate from the course of deciding the case on its merits. Before that incident my conduct had been entirely even-handed and it has continued to be so since. The UFU application for disqualification was not filed until three days after I had issued directions which enabled UFU to make further submissions so it was apparent by the time the application was made that I did not intend to reach any decision in the matter until UFU had had the opportunity to further state its position. I do not believe that a fair-minded lay observer considering these facts might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I was required to decide, that is whether or not to grant an order to MFB against UFU pursuant to the provisions of s.127 of the Act. I can see no logical conclusion between my disciplining Mr Marshall for his behaviour in the conciliation conference for conduct which undoubtedly required reproof, and the deviation feared by UFU in this application that I "might not bring an impartial and unprejudiced mind to the resolution of the matter" (Exhibit R4 cl8). 6. Mr Langmead at the hearing on 3 March 2005 made further application for me to disqualify myself for apparent bias, because I had introduced my own sworn evidence and must therefore be a witness in my own cause and pronounce on my own evidence (PN709 -711) and therefore any findings I might make as to the reliability or credibility of the evidence of those UFU representatives who had given affidavit evidence, particularly Mr Marshall, might be taken to colour my view of their evidence in relation to other aspects of the matter (PN 7 21). As the High court has observed in Ebner at [7] "the question is one of possibility (real and not remote), not probability". I can only say, yet again, that I do not believe that a fair-minded lay observer might reasonably apprehend that there was a real possibility that I would not decide the application of the MFB in this matter and view all of the evidence completely impartially and in a detached manner. I have shown by my conduct at the hearing on 3 March 2005 that I was willing to accept the evidence of Messrs Carlson, Angwin, Marshall and Grove (Exhibits R5 - R8), with the exception of two matters; was willing to modify my own prior evidence as to my own recollection of the events which occurred on 22 February, and was willing to restate my own understanding of what had occurred under oath and be cross-examined by Mr Langmead for the UFU. Yet again, in applying the two step process put by the High Court in Ebner at [8], I do not find that the fact I had given evidence and taken into account and accepted evidence given by UFU representatives as to the incident with Mr Marshall on 22 February 2005 could lead to a logical connection being drawn between that and the fact that I might be apprehended to be biased when considering other evidence of the UFU representatives. When I was sworn in as a Commissioner of this Commission on 9 April 2001 I swore an oath that I would "faithfully and impartially perform the duties of the office". The UFU has not been able to establish that there is a real and not remote possibility that I would not comply with the commitment of that oath. The fact is that in every apprehension of bias claim the relevant statutory officeholder must make findings as to their own conduct and must balance their own recollections of what has occurred against the recollections or submissions of others. In this case I have not proceeded to do so until I have had sworn evidence before me, including my own, and could reflect on that evidence before reaching a finding. The evidence does not support my making the finding sought by the UFU on 3 March 2005 because I do not find that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the MFB's substantive application in this matter. THE SECOND ISSUE - UFU CLAIM REGARDING S.105 [44] UFU has objected to my exercising arbitration power as I have already exercised conciliation powers (Exhibit R4 cl 9 -10). Mr Langmead relied by analogy on a decision of a Full Court of the Industrial Relations Court of Australia in Comalco (1995) 61 IR 455. Ms Salmon for MFB cited the decision of a Full Bench of this Commission in Worley Ltd v AWU ( PR917278 ) in which McIntyre VP, Lacy SDP and Smith C held that "s.105 does not apply to proceedings under either s.127 or 166A" of the Act. I am bound to follow that decision. [45] Accordingly I reject the objections of the respondent pursuant to s.105 of the Act. THE THIRD ISSUE - SHOULD THE COMMISSION EXERCISE ITS DISCRETION IN THIS MATTER TO GRANT AN ORDER PURSUANT TO S.127 OF THE ACT. [46] A Full Bench of this Commission in Coal & Allied Operations v AFMEPKIU (1997) 73 IR 311 held that in respect of s.127 of the Act: "The exercise of the discretion is predicated upon the Commission itself imposing a prohibition on the industrial action to make it unlawful. Thus for the Commission to exercise the discretion, it will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. The exercise of the discretion is a serious step in the sense that it involves both a finding that the relevant industrial action is, or will be, illegitimate and a determination that a continuation or a commencement of it should be unlawful as a contravention of the Act" (p327). [47] In Patrick Stevedores No. 1 (1997) 79 IR 239 Ross VP of this Commission stated that: "It appears to me that the Commission only has jurisdiction to issue a s.127 order or direction if: (i) industrial action is threatened, impending or probable; and (ii) that industrial action is in relation to: - an industrial dispute; or - the negotiation or proposed negotiation of an agreement under Division 2 of PArt VIB; or - work that is regulated by an award or certified agreement (iii) the application is brought by a person who is likely to be directly affected by the industrial action. If these prerequisites are not met there is no power to make an order or issue a direction. The applicant bears the onus of satisfying the Commission as to the jurisdictional prerequisites to the discretion in s.127 (1) being exercised." [48] In Australian Char Pty Ltd v AMWU ( PR934944 ) SDP Kaufman stated at [37]-[39] of that decision: "[37] When announcing my decision I referred to a decision of Vice President Lawler in United Collieries v Construction, Forestry, Mining and Energy Union ( PR925399 , 6 December 2002). At [10] his Honour said: The remedy provided by s.127 is a remedy that will often prove futile if an order under s.127 (1) cannot be obtained speedily. The Parliament has commanded the Commission to hear and determine applications under s.127 (1) as quickly as practicable: s.127 (3). The Commission should be astute to ensure that such applications are listed, heard and determined with maximum expedition lest the very delay in that process permits a party to inflict the damage that the whole procedure is designed to avoid. In relation to urgent applications of this sort there is no reason why a respondent should not arrange for witnesses to be available to give evidence by telephone if it is impractical to bring them to the Commission. I respectfully adopt that passage. [38] I also agree with what his Honour said at [13] that industrial action can be "threatened" within the meaning of s.127 (1) notwithstanding that there is no threat of specific industrial action expressly uttered or written. If the circumstances are such as to give rise to an ominous indication that industrial action will occur this will be sufficient. [39] In this matter I am satisfied that industrial action is threatened within the meaning of s.127 (1). The ambulatory nature of the stoppages of work that have been engaged in by AMWU members employed by KES and HP leads me to draw the inference that pretexts have been used for stopping work in support of the claims about which Mr D. Dalton gave evidence. I am far from confident that this type of action will not continue. Indeed, I believe that, unless restrained by an order, such further industrial action is threatened." [49] As to whether the Commission should exercise its discretion in this matter, Ross VP in Patricks has stated the position clearly: "In the Coal and Allied decision the Commission considered, among other things, the general nature of the power in s.127 and the considerations relevant to, or precluding, the exercise of the Commission's discretion in s.127 (1). In particular the Commission said at 316-317: "An exercise of the Commission's discretion is required. The discretion is apparently at large provided "it appears to the Commission that industrial action is happening ..." etc. Accordingly, the identification of considerations relevant to the exercise of any such discretion should be guided by the objects of the Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the Act." The Commission also said at 327: "The exercise of such discretion requires that the Commission be satisfied that it is appropriate to direct that the relevant industrial action cease or not occur. The exercise of the discretion is predicated upon the Commission itself imposing a prohibition on the industrial action to make it unlawful. Thus, for the Commission to exercise the discretion, it will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. The exercise of the discretion is a serious step in the sense that it involves both a finding that the relevant industrial action is, or will be illegitimate and a determination that a continuation or a commencement of it should be unlawful as a contravention of the Act." The conclusions reached by the Commission in the Coal and Allied decision, to the extent that they may be relevant to the matter before me, can be summarised as follows: 1. The onus on an applicant for an order under s.127 extends to establishing, at least on a prima facie basis, that there are adequate grounds for the Commission ordering that the relevant action stop or not occur. 2. The identification of considerations relevant to the exercise of discretion should be guided by the objects of the Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the Act . In this regard the Coal and Allied decision states at 324: "The scheme of the Act does not in our view clearly imprint the discretion granted by section 127 with any guiding requirement to the effect that any industrial action that is not protected action should be directed to cease. The norms of the system reflected in the Act are not so specific that all unprotected industrial action must be taken to be of itself unjustifiable." 3. The exercise of such discretion requires that the Commission be satisfied that it is appropriate to direct that the relevant industrial action cease or not occur. The Commission will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. This process requires the evaluation of the character of the industrial action. 4. As a general rule in the exercise of the discretion under s.127 , an order should not be made in relation to industrial action that is considered to be protected action, or plainly likely to be protected action. If the intervention of the Commission is sought in relation to industrial action that is likely to be considered to be protected action, the appropriate course would normally be for an interested negotiating party to apply under s.170MW . In considering whether the industrial action to be made subject to a s.127 order is illegitimate such that it warrants an order rendering it unlawful I am of the view that the Commission may have regard to the following factors: (i) Conduct of the parties : the conduct of both parties prior to and during the industrial action may be relevant to the determination of whether or not the action is illegitimate. Actions by the applicants to these proceedings which may have provoked or exacerbated the industrial action in question may be relevant to the determination of whether or not that action is illegitimate. (ii) Compliance with disputes procedure : the extent of the compliance with a dispute settlement procedure - by all parties - may also be a relevant consideration. In this regard s.92 provides: "Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or non-compliance with the procedures." The objects of the Act also support such an approach, in particular s.3(e): ". . . (e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; . . ." Section 90 provides that in the performance of its functions the Commission must take into account the public interest and for that purpose must have regard to, among other things, the objects of the Act . Awards and agreements generally impose reciprocal obligations and it is important that both parties adhere to them." [50] I make the following findings in relation to the evidence in this matter: 1. The IMP; as evidence by the information provided by MFB to the EBIC meeting of 11 August 2004 (Exhibit A2) involves "skills maintenance, skill development" and "non-skill assessment" and is based on developments in relation to the Incident Control System (ICS) since 1989. 2. Schedule 4 of the agreement (Exhibit A7) sets out the MFB Emergency Response Training Framework. In relation to training for Senior Station Officers there is, at page 32, specific reference to the Incident Control System. 3. A workshop to both maintain skills and develop skills of Senior Station Officers in relation to the ICS, which is what the IMP clearly is stated to be in Exhibit A2, appears to me to come within the scope of "change", as defined at cl 9.1 of the agreement, "that will have an impact on employees regarding ... training". 4. The IMP Workshops therefore did require to be referred to the EBIC and were so referred by MFB, where the matter was discussed on 11 August 2004 (Exhibit A3 item 7) and it was agreed by Mr Marshall that UFU "endorsed this proposal in principle provided that Brendan Angwin or Wayne Carlson were consulted". 5. "Consultation" is defined in cl 9.1 of the agreement as "the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision". 6. MFB did not consult with Mr Angwin or Mr Carlson as to the IMP Workshops until the meeting of Commander Swain with Mr Angwin on 17 December 2004 as the result of a direction of Commissioner Foggo in relation to the s.170LW matter. 7. At that meeting Commander Swain undertook to provide Mr Angwin with an AFAC3 module if he could obtain it. 8. Commander Swain did not comply with that undertaking until 9 February 2004. 9. I therefore do not believe that the consultation process agreed to at the EBIC meeting of 11 August 2004 had been completed before the IMP Workshop was scheduled to be held by MFB on 8 February 2005. 10. On 2 or 3 December 2004 UFU lodged an application pursuant to s.170LW of the Act and in purported pursuance of the dispute resolution provisions of clause 12 of the agreement stating that "the matter in dispute relates to the denial by the MFESB of employees' requests to exercise their existing 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 meetings) where work regulated by the agreement is being conduct" (Exhibit R1) . 11. It appears to me that the IMP Workshops do come within the scope of the second part of the s.170LW application lodged by the UFU in this Commission on 2 December 2004 and therefore while ever that s.170LW application remained on foot in this Commission cl 12 of the agreement applied that "while the above procedures are being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause of the agreement". 12. I am perplexed by what appears to be Mr Langmead's clear statement, referred to by Foggo C in her decision of 2 February 2005 ( PR955362 ) at [70] that "UFU had confirmed that the UFU's s.170LW application related specifically and only to the dispute she was then dealing with regarding the Senior Station Officer briefings". I notice evidence of Mr Marshall (Exhibit R11 cl 4) that Commissioner Foggo chaired a conciliation conference between the parties in relation to matter's C2004/6816, C2004/6819 and C2004/6848 on or about 8 December 2004 which was attended by Mr Marshall at which it was agreed that "the part of the (s.170LW) dispute dealing with ICS Skills Maintenance was deferred" . At PR955362 [106] Commissioner Foggo held that her decision in that matter with respect to UFU's s.170LW application of 3 December 2004 "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" (at [106]). It has been fundamental to UFU's submissions in this matter that the issue of union representation at the IMP Workshops for Senior Station Officers was encompassed by that s.170LW application dealt with in matter C2004/6848. The situation appears to be that matter C2004/6848 relating to UFU's s.170LW application on "ICS Skills Maintenance meetings" - has lapsed during the course of those proceedings and does not remain on foot. This could be tested by either of the parties applying to Commissioner Foggo in relation to that matter to seek her view on that issue. Her decision in PR955362 appears to contemplate that the matter was dealt with to completion and that no part of the matter remained on foot. 13. As Commissioner Foggo has already made a ruling as to Senior Station Officer briefings and clause 10 of the agreement in PR955362 and as this is now the subject of an appeal to a Full Bench of this Commission, I refrain from expressing any view on the operation of cl 10 of the agreement in relation to the IMP Workshops. I do, however, express the view that given the public safety issues which MFB says are at stake in relation to the IMP Workshops , I see no good reason why UFU should not be able to have a nominated officer attend IMP Workshops if they are scheduled for late March given that a Full Bench is bound to rule on Commissioner Foggo's findings on the application of cl 10 of the agreement in due course. This course of action would enable MFB to proceed with the IMP Workshops in late March as it wishes to do. 14. It appears to me that by 8 February 2005 the two impediments to MFB holding the IMP Workshop for Senior Station Officers on 8 February 2005 were a) the fact of UFU having lodged its s.170LW application on 2 or 3 December 2004, unless that process had been exhausted by Commissioner Foggo's decision of PR955362 which appears probably is the case; and b) the fact that the agreed consultation process, with the attendant undertaking on 17 December 2004 by Commander Swain to provide the AFAC 3 module to Mr Angwin, had not been completed by 8 February 2005. 15. It appears to me that if MFB, having now supplied that information to Mr Angwin on 9 February 2005, having had the opportunity to consider all of the material put forward by UFU in relation to the IMP Workshop, including by submissions and evidence in these proceedings, will have completed the process of consultation contemplated both by cl 9.1 of the agreement and by the request of Mr Marshall at the 11 August 2004 EBIC meeting. It now only remains to MFB to give consideration to UFU's views prior to any decision whether or not to proceed with the IMP programme for Senior Station Officers. 16. The other issue is as to whether the s.170LW process before Commissioner Foggo in matter C2004/6848 as to the ICS Skills Maintenance Workshops for Senior Station Officers had been exhausted by Commissioner Foggo's decision in PR955363 could be speedily resolved by either of the parties asking Commissioner Foggo for an urgent ruling on that question. If the matter is not exhausted then, it appears to me, that aspect of the matter remains adjourned before Commissioner Foggo and it is for her to deal with it to completion unless the UFU lodges a written withdrawal of that part of its s.170LW application relating to ICS Skills Maintenance Workshops for Senior Station Officers. 17. I am satisfied on the evidence before me in this matter that neither Mr Marshall nor any other UFU officer has directed its members not to attend the IMP Workshop on 8 February 2005. Rather, according to the evidence of Mr Marshall (Exhibit R11 cl 9 and PN 1367) which I accept to be true, Mr Marshall had advised a number of Senior Station Officers that "UFU did not believe the meeting should go ahead, as the UFU had notified a dispute about these Workshops under cl 12 of the agreement, and that therefore the status quo must be maintained. This required that the Workshops did not take place. I advised them that the UFU's legal advice was that in these circumstances an order to attend was not an unlawful direction" and that "on legal advice I informed [them] that they didn't have to attend" (PN1367). [51] It is fundamental to MFB's submissions in this matter (see Exhibit A9 cl 2-3) that: "industrial action was taken by seven UFU members on 8 February when they refused a direct order by a superior officer to attend Head Office at 8.00a.m. for an Incident Management Workshop. "Their reasons for refusing this direction was that they were directed not to attend by the UFU Secretary Mr Peter Marshall or UFU delegates". [52] "Industrial action" is defined in section 4 of the Act as meaning: industrial action (except in Part XA) means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if; (i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or (ii) the failure or refusal is in connection with an industrial dispute; or (iii) the persons are employed by the Commonwealth or a constitutional corporation; or (iv) the persons are employed in a Territory; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. [53] In the present case, if I understand the MFB submissions correctly, the failure by seven of its employees to attend the IMP Workshop on 8 February 2005 is sought to be characterised as "a failure or refusal by persons to attend for work ... if ... the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation ... or an officer ... of the organisation acting in that capacity" within the meaning of sub-clause(d) of the definition of "industrial action" in s.4 of the Act. Given my finding at para [50] sub-paragraph 17 hereof, I am of the view that the non-attendance of seven MFB employees at the IMP Workshop on 8 February 2005 does not come within the definition of "industrial action" because Mr Marshall gave no direction but only provided advice to the MFB employees that there was a dispute about the IMP Workshops which was being pursued through cl 12 of the agreement; that under the provisions of cl 12 the status quo should be preserved; and that an order to attend a Workshop held in such circumstances was not a lawful direction" (Exhibit R11 cl 9) and that "they didn't have to attend" (PN1367). To give such advice does not constitute "industrial action" within the meaning of the Act. It has been made clear by the UFU throughout this matter that it intends to continue giving this advice to its members in relation to the IMP Workshop while ever it believes its clause 12 dispute process/s.170LW application in matter C2004/6848 remains unresolved as to the ICS Skills Maintenance/IMP Workshop issue. While I am of the view that Commissioner Foggo has dealt with that s.170LW to completion, I can understand that UFU does not agree with that view. Its position in this regard does not, in my view, constitute "industrial action" which is "threatening, impending or probable, in relation to ... an industrial dispute ... or work that is regulated by ... a certified agreement" within the meaning of s.127 (1) of the Act. Rather it is a reliance on the dispute settlement provisions of clause 12 of the agreement and the provisions of s.170LW of the Act. It indicates an expectation that the remainder of its s.170LW matter, to the extent that it was not dealt with by Commissioner Foggo in decision PR955362 , will ultimately be dealt with by her upon the application of one or the other of the parties to that application. [54] I therefore accept the principal submission of the respondent in this matter that the threshold question of jurisdiction of the Commission to issue an order pursuant to the provision of s.127 of the Ac has not been satisfied because there is no "industrial action" taking place or threatened, impending or probable. [55] In addition, I find that the programming of the IMP Workshop by MFB on 8 February 2004 was premature because the requisite consultation committed to by MFB at the EBIC meeting of 11 August 2004 had not been completed by 8 February 2004. I am therefore of the view that, even if industrial action was "threatened, impending or probable" in relation to the industrial dispute over the IMP Workshops, the conduct of the MFB in proceeding to program the IMP Workshop on 8 February 2005 was an illegitimate action because it was taken without it having complied with all the requirements incumbent upon it before programming the Workshop (See Ross VP in Patricks quoted at [49] hereof). [56] As to the orders sought by MFB in this matter (Exhibit A8) I would not be prepared to issue orders in the form sought and would require a far greater degree of specificity as to: a) The subject matter of the order; and in particular b) The precise details of the IMP Workshops both as to timing and as to venue given that they are to be away from the employees' nominal places of work; and c) The precise individuals to whom the orders are intended to apply. [57] I would also have serious reservation about the natural justice issues involved in issuing orders which potentially exposed individual MFB employees to the threat of court action without there being evidence that those individual employees had been served with notice of these proceedings and thereby been given the opportunity to be aware of them, to attend them and to make such representations as they may choose to make at them. At the least I would have expected the Senior Station Officers who did not attend the IMP Workshop on 8 February 2005 to have been named and served with notice of these proceedings. FINDING [58] I dismiss the application in this matter for the reasons stated. RECOMMENDATIONS [59] Whilst I have declined to issue the order sought by MFB in this matter and: Given that the MFB had submitted the proposal for the IMP to the EBIC meeting of 11 August 2004 and had sought UFU's views on it; Given Mr Marshall of UFU had requested at that meeting that Mr Angwin or Mr Carlson be consulted on the IMP Workshops before they took place; Given that Commander Swain did not meet with Mr Angwin on the subject of the IMP until 17 December 2004 and then undertook to provide Mr Angwin with an AFAC 3 module relevant to the IMP if he could obtain it; Given that UFU had included this issue in its s.170LW application to this Commission on 3 February 2004 and there is a question as to whether this issue has yet been dealt with to finality in those proceedings before Commissioner Foggo; Given that Commander Swain had not supplied that AFAC module to Mr Angwin before the IMP was scheduled by MFB to be held on 8 February 2005; Given that Commander Swain did on 9 February 2005 provide that AFAC module to Mr Marshall for delivery to Mr Angwin; Given that the consultation and exchange of information agreed to by MFB at the EBIC meeting has now, I believe, been complied with within the terms of the agreement. Given that on the evidence of Commander Swain for MFB there are real public safety issues making it desirable that the IMP be delivered to senior station officers without any further unnecessary delay, particularly given the increased likelihood of multi-agency responses for major incidents; I now consider it appropriate to make the following recommendations to the parties with a view to assisting them to reach a resolution of this matter: 1. Either of the parties should apply immediately to Commissioner Foggo for a ruling as to whether any aspect of the s.170LW application lodged by UFU on 2 or 3 December 2004 in relation to ICS Skills Maintenance remain on foot. 2. Commander Swain should meet further with Mr Carlson and/or Mr Angwin in the next three days so that they can exchange information and so that UFU's concerns or reservations as to the IMP, if any, can be represented to Commander Swain on behalf of the MFB. 3. If UFU still objects to the holding of the IMP Workshop for Senior Station Officers it should ask Commissioner Foggo to re-list the matter C2004/6848 as a matter of urgency by 9 March 2004. 4. The MFB should in the meantime proceed to make arrangements to hold the Incident Management Programme Workshops in the third week of March 2005 for Senior Station Officers. 5. The Senior Station Officers directed by MFB to attend those workshops should make arrangements to do so subject to the outcome of any reactivation of the s.170LW application by the UFU in relation to this matter before Commissioner Foggo to the extent that she rules it does remain extant. 6. That UFU should refrain from any action which impedes the Board from conducting those workshops in late March. 7. MFB should on a without prejudice basis and without derogating from the findings and directions of Commissioner Foggo in PR955362 invite one of the following four UFU officials to attend each of the IMP workshops as observers rather then as active participants: Brendan Angwin Glen Cavanagh Ian Leaves Wayne Carlson. 8. If any one of those UFU officers attends one of the IMP Workshops for Senior Station Officers they would do so as observers and they should agree to not interfere with the conduct of those IMP Workshops and should not do so. BY THE COMMISSION: COMMISSIONER Appearances: M Salmon for Metropolitan Fire and Emergency Services Board D Langmead of Counsel for United Firefighters' Union of Australia Hearing details: 2005 Melbourne: February 8, 22, 28. March 1, 3. Cases Australian Char Pty Ltd v AMWU ( PR934944 ). Coal & Allied Operations v AFMEPKIU (1997) 73 IR 311. Comalco Aluminium (Bell Bay) Ltd v O'Connor and others (No 2) (1995) 61 IR 455. Damjanovic v Sharpe Hume & Co and others [2001] NSWCA 407. Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277. Johnson v Johnson (2000) 74 ALJR 1380. Livesy v NSW Bar Association 151 CLR 288-301. Metropolitan Fire and Emergency Services Board and others ( PR955362 ). Patrick Stevedores No. 1 (1997) 79 IR 239. Worley Ltd and another v AWU and others ( PR917278 ). Printed by authority of the Commonwealth Government Printer <Price code J>