Fair Work Act 2009_

s.739 - Application to deal with a dispute

Garth Duggan and the United Firefighters' Union of Australia

Application to deal with a dispute. Decision regarding appropriate order.

[1] This decision, insofar as it relates to Matter Number C2016/3853, concerns the form of orders to be issued by the Fair Work Commission in relation to the decision issued by the Commission as presently constituted on 3 August 2016 in the matter of Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters' Union of Australia ( [2016] FWC 5028). That decision dealt with the question of whether there was any impediment arising from the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the Agreement) to the Metropolitan Fire and Emergency Services Board, known as the MFB, from implementing the decision it had made to terminate the employment of a recruit firefighter, Garth Duggan.

"[126] In the circumstances, I consider it to be appropriate and consistent with the parties' legal rights and obligations under the Agreement for Mr Duggan's probationary period to be extended for between 3 and 6 months from the date of this decision. I also consider it to be consistent with the Police Check Policy and appropriate in all the circumstances for Mr Duggan to be formally asked by the MFB to disclose in writing all charges and arrests since turning 18 years of age, whether or not they were withdrawn or he was acquitted, and that he be required to respond to that enquiry by way of a Statutory Declaration. Finally, I consider it to be consistent with the Agreement and appropriate that Mr Duggan be warned in writing, in the form of a first and final warning, that any future misconduct by him may lead to his dismissal, and that such warning be kept on file for 12 months from the date on which it is issued and acknowledged by Mr Duggan.

[127] The parties are directed to confer on these matters and endeavour to agree to the form and substance of each. In the absence of agreement between the parties on these things the matter will be relisted by me at 2:00 PM on Thursday, 25 August 2016 for further hearing, with a view to then making appropriate orders consistent with the Agreement. The Applicant is to advise my Chambers in writing by no later than 5 PM on Friday, 19 August 2016 of whether there is agreement with the Respondents on a suitable draft order consistent with the foregoing. In the absence of such agreement, a Notice of Listing will be issued for 25 August 2016.

[128] Accordingly, I answer the second and third elements of the dispute as characterised by me in the following way;

Q2: Whether the dispute the subject of this proceeding is resolved.

A: No. The dispute is not resolved and will not be resolved until either the Commission issues, by consent, an order consistent with the matters set out above, or the Commission determines the dispute following a further hearing.

Q3: Whether the decision to terminate the employee's employment can therefore now be implemented by the MFB.

A: No. Mr Duggan remains a probationary employee until the resolution expressed in answer to Q2 is determined."

[3] The MFB has sought to appeal the decision following its publication by the Commission. Further, the parties have been unable to agree to the form and substance of the aforementioned outstanding matters. Nevertheless, the MFB has asked the Commission as presently constituted to proceed to determine the matter of orders prior to the hearing of its application to appeal the substantive decision.

[4] The Respondents, the United Firefighters' Union of Australia (UFU) and Mr Duggan, did not oppose the MFB's proposal.

[5] A short hearing of the MFB's request for orders was convened on 25 August 2016, allowing submissions to be made by both parties on the MFB's proposed draft order, together with submissions regarding the Respondents' alternative proposal. In addition to submissions, some limited further evidence was taken at the hearing, in the form of two statutory declarations from the MFB's instructing solicitor, Chris Hartigan of Thomson Geer, and, on behalf of the Respondents, the statutory declaration of Mark Lyons, a Commander within the MFB's Training Department.

[6] The differences between the parties as to the terms of a suitable draft order are slight, with each reserving their rights regarding the propriety of the original decision upon the hearing of the application for appeal.

[7] The first issue of difference is that whereas the MFB seeks the orders be drafted in permissive terms, as opposed to mandatory or obligatory terms, so that the MFB not be forced into taking action against Mr Duggan pending the resolution of its application to appeal, the Respondents propose that the orders be drafted in a mandatory sense.

[8] The MFB submits that it has drafted their proposed orders in a permissive sense so that it need not be required to seek a stay order from the Commission as a consequence of having to implement orders which, from its perspective, would be less than the relief it should be entitled to enjoy and which it hopes to have remedied through the application to appeal process. It also puts forward that, in any event, orders drafted in the permissive sense are within the scope of things which the Commission is entitled to do.

[9] For their part, the Respondents argue that the MFB's preference for permissive orders amounts to a backdoor stay order process.

[10] The second issue of substance between the parties in the proposed draft orders relates to the point at which Mr Duggan can be expected to return to recruit firefighter training.

[11] The MFB puts forward that it is not feasible for Mr Duggan to re-join the training process after he has left it, or to join part way through an alternative training program. Instead, the MFB puts forward that it is really only feasible for Mr Duggan to start the program in its entirety from the same date as the other participants. The MFB puts forward that to do otherwise would put not only himself at risk, but potentially other firefighters and, upon completion of the course, the public.

[12] The Respondents argue the contrary, putting forward that, having already completed recruit firefighter training of some weeks, Mr Duggan is able to take up training where he left it.

[13] I have given careful consideration to both draft orders and to the matters put forward by the parties about what they should contain.

[14] Firstly, I am satisfied there is no impediment to me providing orders which are permissively drafted. Secondly, I am satisfied that, while giving effect to the intention enunciated in the original decision that Mr Duggan's period of probation extend for a further period, it is also appropriate for the period of probation to be extended for the duration of his recruit firefighter training, as proposed within the MFB's draft order.

[15] In relation to this second matter, the MFB put forward a proposal that the indication by me above, that Mr Duggan's probation period continue for a period of 3 to 6 months from the date of the original decision, could be resolved by taking the midpoint of 4 � months from the date of the decision, namely 19 December 2016, but then also indicates that the probation period may be a longer period, being the date that he completes the recruitment training course. I propose to adopt that drafting.

[16] Beyond that question, there is insufficient evidence before me on which to form a concluded view on the debate between the parties as to whether Mr Duggan can take up training where he left part way through another course. In any event I note that the Respondents accept that Mr Duggan may not be able to join the training program already underway and that he may have to wait until February 2017 to do so.

[17] Based upon the foregoing, the following order will be issued by the Commission in this matter;

"I determine the dispute in matter C2016/3853 by making the following orders:

1. Garth Duggan will remain a probationary employee until 5:00 PM on 19 December 2016 or until he completes a recruitment training course, whichever is the later.

2. The Metropolitan Fire and Emergency Services Board (MFB) be permitted to request in writing to Mr Duggan that he disclose all charges and arrests he has been subject to since turning 18 years of age, whether or not such charges were withdrawn or he was acquitted.

3. Mr Duggan must answer by way of a statutory declaration within seven days of any request made pursuant to (2).

4. The MFB be permitted to provide Mr Duggan with a first and final warning, with such warning to state that any future misconduct by Mr Duggan may lead to his dismissal. Any such warning will be kept on file for 12 months from the date it is issued to him.

5. The MFB is not permitted to terminate the employment of Garth Duggan by reason of any matter the subject of my decision of 3 August 2016.

6. The MFB's application for the Commission to deal with a dispute in accordance with the dispute settlement procedure dated 24 May 2016 is otherwise dismissed."

[18] The application in matter number C2016/5023 was commenced by the MFB on 23 August 2016. The application is made pursuant to s.739 of the Fair Work Act 2009 and seeks the Commission deal with a dispute between it and the Respondents about the application of the Agreement.

[19] Within the material provided by the Applicant in this matter is a "notification of a dispute" from the UFU to Gregory Leach, the MFB's Deputy Chief Officer and Executive Director of Learning and Development, and it is apparent from the notification that the UFU takes issue with a construction placed upon the Agreement's Emergency Medical Response clause (clause 87). The correspondence includes this communication;

On or about 11 July 2016 Mr Duggan through his representatives advised the MFB that he was prepared to undertake to elect under cl 87.2 of the Agreement not to undertake EMR duties (at least pending the determination of his NCAT application).

You gave evidence to the Fair Work Commission that, on your interpretation of cl 87.2, firefighters may only elect not to perform EMR for a period of time because of psychological concerns about the amount of trauma they may have witnessed as a part of EMR.

You also told the Commission in evidence that if you were wrong in that interpretation, and if Mr Duggan exercised a right under 87.2 not to perform EMR, then your concerns about Mr Duggan's employment as a firefighter by the MFB would be allayed.

The UFU considers that clause 87.2 of the Agreement permits a firefighter to elect to not undertake EMR duties without qualification, ie for any reason or for no reason, and that there is no time limit on the period when the firefighter does not perform EMR.

The dispute is about the interpretation of cl 87.2 and its application to Mr Duggan's employment, in the light of his undertaking to exercise a right under cl 87.2 not to perform EMR and your evidence to the Fair Work Commission that his undertaking would allay your concerns about his employment by the MFB as a firefighter. It thus comes within cl 19.1.1 and cl 19.1.2 of the Agreement.

We therefore notify you of a dispute in relation to this matter at step one of cl 19.2.1 of the Agreement. We remind you of your status quo obligations under cl 19.4 and seek your response."

[20] After hearing the parties on this matter I am satisfied that, to the extent the application is validly made, the entirety of the matters addressed in the dispute notified by the UFU to the MFB have been dealt with by the Commission in the decision given by me on 3 August 2016 ([2016] FWC 5028) and that, following the issue by me of the orders referred to above, no part of the purported dispute in matter C2016/5023 remains unresolved.

Mr J Bourke QC and Mr P J Wheelahan of Counsel for the MFB.

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