Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia - [2005] FCA 621 - FCA 2005 case summary — Zoe

CTHFCA

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

[2005] FCA 621

Federal Court of Australia|2005-05-17|Before: Adam P, Ryan J

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Court

Federal Court of Australia

Decision date

2005-05-17

Before

Adam P, Ryan J

Source

Original judgment source is linked above.

Judgment (130 paragraphs)

[1]

REASONS FOR JUDGMENT 1 There is before the Court an application for the imposition of penalties on the respondents for breaches of cll 4(a) and 4(d) of the MFESB Industrial Action Order (No 1) of 2005 ("the Order") and injunctions restraining the respondents from engaging in contravention of the Order. The applicant ("the MFESB") also seeks interlocutory injunctions restraining the respondents from commencing, continuing, engaging in or threatening to engage in, industrial action or any ban on the performance of work by members of the first respondent ("the UFU") employed by the MFESB. Other interlocutory orders sought are for an interlocutory injunction restraining the respondents from directing, counselling or procuring members of the UFU employed by the MFESB to engage in industrial action. It seems to be accepted on both sides that the hearing of the MFESB's motion for interlocutory relief is to be treated as the trial of the action. 2 The MFESB and the UFU are both parties to the Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia Operational Staff Agreement 2002 ("the Certified Agreement") certified under s 170LJ of the Workplace Relations Act 1996 (Cth) ("the Act"). The Certified Agreement has a nominal expiry date of 1 August 2005. 3 The MFESB has been desirous of introducing certain workplace changes and, to that end, has engaged in consultation with the UFU pursuant to cl 9 of the Certified Agreement which provides, so far as is relevant; '9.1 Definitions

[2]

[35]

8 The Commissioner next identified in more detail each of the matters in dispute. As to the Operational Support Group or "OSG", he noted that, at a meeting of the Enterprise Bargaining Implementation Committee ("the EBIC"), the MFESB had proposed that some employees in the OSG could be assigned to certain positions within the minimum staffing requirements set out in cl 16 of the Certified Agreement and that; 'To be assigned to a position within the minimum staffing requirement would be subject to them having been medically cleared to perform the functions of the relevant position by the Brigade Medical Officer. Six positions within the minimum staffing requirements have been identified as being suitable.' 9 It was then noted that a member of the OSG had been directed to carry out the duties of one of the positions on the minimum staffing requirement which he had refused and the resultant refusal had become the subject of a grievance processed under cl 12 of the Certified Agreement. 10 After noting that, until the proposal had been put to the EBIC in early November in 2003, the policy of the MFESB had been not to use OSG personnel in positions identified as minimum staffing requirements, the Commissioner expressed himself as satisfied that the MFESB's proposal did amount to a change for the purposes of cl 11 because it would "have an impact on employees regarding work practices or location……". Accordingly, the Commissioner concluded at [33] of his reasons; 'In those circumstances, it was necessary for the MFESB to provide its proposal for change in writing (see clause 9.3.1 set out earlier in this decision). It did not do so in November 2003, and before the EBIC could consider the written proposal, it introduced the change. It would appear that the UFU have approached the matter on the basis that the proposal constitutes an extra claim. In view of my conclusions on that aspect, it is appropriate that the matter be referred back to EBIC for the UFU to put forward any alternative proposal in accordance with clause 9.3.2 and for the matter then to be processed in accordance with the Agreement. If it remains in dispute it can be dealt with as a new matter. The specific grievance concerning the officer directed to perform duties as part of the minimum staffing requirements should be adjourned pending the outcome of that process.'

[82]

26 Shortly after the issue of the UFU bulletin which I have just quoted, the MFESB issued its own bulletin to employees which, again omitting formal parts, recited; 'The MFB made application to the Australian Industrial Relations Commission to have an order given by the Commission to stop industrial action by the UFU in regard to the following matters:

OSG personnel
Use of Pumper 2B
Recording of Skills Maintenance
Community Safety Log
Fire Safety Inspection Program Today in the AIRC, Comm Foggo granted the MFB's order which states that from 9am 21 April 2005, there can be no industrial action to hinder these initiatives. The status quo is the determination by Commissioner Simmonds made on 16 August 2004. The MFB will continue to implement these initiatives It should be understood that these disputes were not about employment conditions or entitlements but rather about the implementation of change in the organisation. The changes proposed were to ensure that the MFB can retain its reputation of providing our community with a world class fire service.' (original emphasis) 27 The UFU, in turn, issued yet another bulletin on 26 April 2005 which referred to its institution of proceedings in the High Court and advised its members as follows; 'Commissioner Foggo made Orders on April 20 in relation to disputes concerning the following matter:
- The Operational Support Group
- 2 Station
- Skills Maintenance
- Community Safety Log
- Fire Safety Inspections Course The disputes concerning the above matters are the subject of a High Court case recently commenced by the UFU. Advice has been received by the UFU that because the above matters are before the High Court pending determination, the dispute resolution procedure as set out at clause 12 of the Certified Agreement is not at an end. Therefore, the "Status Quo" applied and MFESB is under a legal obligation to refrain from implementing the matters in dispute referred to above. The UFU remains committed to challenging any attempt by the MFESB to depart from the Status Quo. If any members have queries in relation to this bulletin they should contact Peter J. Marshall on 0419 127004.' 28 On 27 April 2005, the solicitors for the MFESB requested the UFU, through its solicitors, to withdraw the bulletin reproduced at [27] above and immediately to provide written undertakings that the UFU would: · 'comply with and continue to comply with the Order; · issue a fresh Bulletin by 4pm today to all UFU members employed by the MFESB, informing them of the withdrawal of the Second Bulletin and instructing them to comply with the terms of the Order; · not re-issue the Second Bulletin; and · not issue any other Bulletin or direction in the same or similar terms.' 29 No positive response was made to that letter and, on the same day, the MFESB instituted the present proceedings in this Court.

[92]

The issues between the parties 31 The MFESB contended that this is a proper case for the making of an order under s 127(6) of the Act because the conduct of the UFU in issuing the bulletin described at [27] above amounted to continuation of a ban on the performance of work in relation to the Workplace Changes or constituted directing, advising, inducing or procuring members of the UFU to continue, implement or give effect to such a ban. 32 The UFU, on the other hand, contended that the Order by Commissioner Foggo under s 127 of the Act is invalid because it did not recognise that the decision and orders of Commissioner Simmonds of 16 August 2004 were subject to an "appeal" within the meaning of cl 12(9) of the Certified Agreement. The "appeal" on which the UFU relies is the proceeding which it commenced in the High Court on 7 April 2005. 33 In the second place, it was contended on behalf of the UFU that there was no basis in the evidence for a finding that either of the named respondents, the UFU or Mr Marshall, had contravened or threatened to contravene the Order of Commissioner Foggo of 20 April 2005. The MFESB's response to that contention was to point to the bulletins issued by the UFU, particularly that of 26 April 2005, and contend that the failure by the UFU and Mr Marshall to withdraw, or override, the bulletin of 26 April 2005 involved a continuing of a ban, limitation or restriction on the performance of work or their advising or inducing employees to continue the ban, limitation or restriction. 34 The third argument advanced on behalf of the respondents was to the effect that the Court should decline to grant an injunction under s 127(6) of the Act until after the resolution of either or both of the proceedings instituted in the High Court and those pending in this Court which have been fixed for hearing on 25 July 2005. As I understand it, the challenge mounted in the High Court rests on the fact that the application to the Commission which resulted in the making of Commissioner's Simmonds' decision of 16 August 2004 had been lodged on 17 March 2004, one month after the proceedings numbered VID 151/2004 had been instituted in this Court. Accordingly, so the argument seems to go, Commissioner Simmonds lacked jurisdiction under cl 12.7 of the Certified Agreement because one of the parties had earlier sought to have the dispute resolved in an alternative forum recognised by cl 12.7 which was still to determine the matter. The proceedings in this Court are founded upon the contention that the Workplace Changes which Commissioner Simmonds was asked to approve were all "extra claims" within the meaning of cl 49 of the Certified Agreement. Clause 49 provides; '49. NO EXTRA CLAIMS

[96]

35 In response to this third argument, the MFESB has pointed to the fact that Commissioner Simmonds had, on 21 May 2004, determined that he had jurisdiction to enter the application which had been made by the MFESB and the UFU had, on the same day, lodged an appeal against that decision. That appeal was later withdrawn on 16 June 2004 before Commissioner Simmonds embarked on a hearing of the merits of the MFESB's application. Leave to appeal from the Commissioner's resultant decision was refused by a Full Bench of the Commission on 10 March 2005. It was further said on behalf of the MFESB that neither the proceedings in the High Court nor those in this Court would be rendered nugatory by the grant of an injunction under s 127(6) of the Act. On the other hand, if no such injunction were granted, the Order of Commissioner Foggo which is expressed to expire on 1 August 2005 would be rendered nugatory because it is highly unlikely that either of the curial proceedings would be determined before that date. 36 Finally, Counsel for the UFU contended that the terms of the injunction sought are too wide and would prohibit the taking of industrial action in respect of some Workplace Changes which have not been fully approved by Commissioner Simmonds. In a related way, it was contended that it would be inappropriate to require the respondents to issue a bulletin or other document requesting the discontinuance of industrial action which contained an expression of a belief to which neither the UFU nor Mr Marshall subscribes. Similarly, it was said that any such requirement could operate detrimentally on the UFU's continued prosecutions of its proceedings in the High Court and in this Court. 37 For the MFESB the response was made that the terms of the proposed injunction are intelligible and properly protective of the MFESB's right to implement the "approved changes" which are identified with sufficient certainty in the draft orders which the MFESB has proposed, in terms similar to those used by the UFU itself in its bulletin of 26 April 2005.

[97]

(a) Validity of Commissioner Foggo's order; are the High Court proceedings an "appeal" within the meaning of cl 12 of the Certified Agreement? 38 It is clear that the word "appeal" can have a variety of meanings and can include a proceeding to obtain judicial review of a decision of an inferior tribunal or an administrative decision-maker. Thus, in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA at 297 identified, as the first of six species of litigious processes to which the term "appeal" can be applied; '(a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.' 39 However, his Honour's observations there were by way of explaining the nature of an "appeal" to the Supreme Court afforded by s 26 of the Medical Practitioners Act 1938. At issue in that case was whether the appeal was by way of a rehearing of an inquiry into the guilt or innocence of a medical practitioner on a charge of infamous misconduct in a professional respect. It was held that the Court was not bound, in entertaining the appeal, to grant the plaintiff a hearing de novo of the charges which had been brought against him in Tasmania. 40 In Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 in which extensive references were made to Turnbull v New South Wales Medical Board, it was held that an appeal to a Full Bench of the Commission under s 45 of the Act is by way of rehearing so that, in the absence of error on the part of the primary decision-maker or relevant change in the law, the Full Bench has no power to hear the appeal. 41 It is clear, I consider, that the meaning, as well as the content, of the word "appeal" depends on the context in which the word is used. The issue in the present case therefore has to be resolved by the application of general principles governing the construction of industrial instruments. Those principles have been identified in these terms by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184; 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.' See also Ansett Australia Ltd v Australian Licensed Aircraft Engineers Association [2003] FCAFC 209 and Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 per Kirby J at [96] and per Callinan J at [145]-[146]. 42 In the present case, the word "appeal" finds its context in a clause of a certified agreement framed to provide a procedure for the resolution of any dispute or grievance. It is contemplated by cl 12.1 that the procedure shall be as part of "effective consultation" between the MFESB, its employees and the UFU "on all matters pertaining to the employment relationship including the application of this agreement." Some disputes or grievances, particularly those to which Steps 1 - 3 are directed, will concern only local issues affecting one or a few employees and are regarded as appropriate for attempted speedy resolution between the employee or employees and a more or less immediate supervisor. 43 Wider disputes, including those involving a change to a matter pertaining to the employment relationship, where the settlement of disputes procedure is incorporated by reference in cl 9 of the Certified Agreement, are apparently regarded as more amenable to Steps 4 and 5. It is important to bear in mind that what is there marked out for "arbitration", "conciliation", "mediation" or "determination" is "the matter" of the dispute or grievance. "Matter" is a word of wide import and, in the context of an exercise of judicial power, has been held to be a judicial controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy; see Fencott v Muller (1983) 152 CLR 570 at 603 citing Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475. 44 By analogy, I consider that "matter" where appearing in cl 12.7 of the Certified Agreement and in the compound expression "subject matter" in cl 12.9 means the whole controversy between the MFESB and its employees or the UFU. The controversy is to be identified independently of the proceedings brought for its arbitration, conciliation or mediation and "matter" will encompass all claims made within the scope of the controversy. 45 Once the mechanism for dispute resolution in cl 12 is understood as predicated on a "matter" in that sense, the meaning of "access to appeal" in cl 12.7 becomes clearer. It recognises, in my view, that a determination by the Commission or "other body or court" to which the matter has been referred will not resolve the "matter" until each party has exhausted his, her or its rights of appeal from the determination. Because the relevant "matter", by force of cl 12.1, may include the application of the Certified Agreement to a given set of facts, it may be appropriate for an affected party to "refer" it to this Court eg by making an application for an interpretation under s 413A of the Act or for the imposition of a penalty under s 178 for contravention of a provision of the Certified Agreement as has been done by the UFU in the pending application to this Court in proceedings VID151/2004. 46 Section 413A of the Act provides; '(1) The Court may give an interpretation of a certified agreement on application by:

[111]

52 As I perceive it, at least part of the matter, in the relevant sense, of the dispute between the MFESB and the UFU went beyond the ascertainment of existing rights and liabilities and, accordingly, was not justiciable in a court. To that extent, the matter was properly referred to Commissioner Simmonds and the UFU's "access to appeal" was exercised and exhausted in the manner described at [50] of these reasons. 53 A facility to obtain judicial review of a decision by a judicial or administrative decision-maker is not to be equated with "access to appeal" within the meaning of cl 12 of the Certified Agreement. That is because the "appeal" in that context is placed at the apex of a procedure for determining the "matter" of the dispute in the sense which I have endeavoured to explain. A decision made in the exercise, not of appellate jurisdiction, but of a supervisory function does not determine the matter. It only resolves a jurisdictional or procedural question of whether or not the decision-maker had the power to make the order or decision in question or had properly conducted the decision-making process. On such an exercise of supervisory judicial power, whether or not labelled an "appeal", as Glass JA pointed out in Turnbull v New South Wales Medical Board (supra) "only errors going to jurisdiction or denials of natural justice can be ventilated." 54 That is not to say that one result of an exercise of such a supervisory judicial power may not be the setting aside of the decision by the original decision-maker. That may still be achieved by the UFU in the High Court, or on remitter to this Court, if certain discretionary obstacles can be surmounted. However, if the decision of Commissioner Simmonds be set aside in that way, there will have been no determination at all of the "matter" of the dispute. It is that essential feature which will deprive any resolution achieved by means of the High Court proceedings of the character of an "appeal" in the sense used in cl 12. For these reasons, I decline to find that the Order of Commissioner Foggo was infected by the invalidity for which Counsel for the respondents contended.

[112]

(b) Is there evidence that the respondents have contravened, or threatened to contravene, the Order of Commissioner Foggo? 55 The UFU's bulletin of 20 April 2005 reproduced at [25] above appeared to accept that Commissioner Foggo's Order had displaced "the previous status quo". Although it criticised the Commissioner's decision as "flawed and wrong" and reaffirmed the UFU's determination to "continue to defend the matter", it did not, expressly or by implication, call on members of the UFU to take or continue industrial action to resist the implementation of any of the five "approved changes" identified in cl 5 of the Commissioner's Order of 20 April 2005. 56 However, the UFU bulletin of 26 April 2005 specifically acknowledged that Commissioner Foggo's Order was related to the five "approved changes" and, by contrast with the earlier bulletin, asserted that the "status quo" with respect to those matters had not been affected by the Order but continued to apply so that the MFESB "is under a legal obligation to refrain from implementing the matters in dispute." That carried the clear implication that members to whom the bulletin was addressed would be entitled to disregard, or refuse to comply with, any instruction given by the MFESB by way of implementing one of the "approved changes" because such an instruction would be unlawful. In that sense, the bulletin went beyond communicating the UFU's "proposed legal responses" to the Order of Commissioner Foggo and asserted that the Order could be contravened because, contrary to the Commissioner's express finding, the "status quo" was preserved by the pending proceedings in the High Court. 57 The bulletin of 26 April was authorised by the second respondent, Mr Marshall, who was identified in it as the UFU official to whom members' queries should be addressed. Neither he nor the UFU has attempted, after the request referred to at [28] above or after the institution of the present proceedings, to modify the message which, I consider, was clearly conveyed to members by the bulletin of 26 April 2005. That bulletin was, for the reasons I have explained, a communication advising or counselling the continuation of a ban or limitation on the performance of work conducing to the implementation of any of the approved changes. In that sense it was a form of "industrial action" as denoted by par (b) of the definition of that expression in s 4 of the Act; see Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia v Commissioner Laing (1998) 86 IR 142 at 155. Moreover, the Order of Commissioner Foggo required those to whom it was directed, including the UFU and Mr Marshall, not to "continue, implement, give effect to or comply with any ban, limitation or restriction on the performance of work." That formulation is similar to the order discussed by Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employers' Union (No 2) (1987) 15 FCR 64 which required the respondent not to maintain, give effect to or enforce any specified ban. In considering a charge of contempt constituted by a contravention of that order, his Honour observed, at 74; 'It cannot be argued that a negative order is, in principle, incapable of creating an obligation to take positive action. A respondent who is currently carrying out an action proscribed by an order may have to take some positive steps in order to avoid a continuance of the proscribed action. Thus, to take the example of the order in the Walthamstow case, it was necessary for the defendant council to take some positive action if it was, in the future, to comply with the order of the court that it refrain from discharging sewage into Leyton Level Brook, so as to cause a nuisance. Whether a particular order may be complied with by doing nothing at all depends upon the form of the order and the circumstances of the case. The present order 1 requires the respondent not to maintain, give effect to or enforce any specified ban. The word "maintain" itself indicates a view that the bans were in existence at the date of the order. This was in fact the finding in the interlocutory proceedings in which the orders were made. Moreover, the finding was that the decisions to impose bans at particular job sites stemmed directly from the activity of the Union organisers. I pointed out that, although the ultimate decision to work or not to work lay with individual members, it could not be assumed that the members would maintain their attitude if they were made aware that the Union no longer maintained the bans. I added that, in the case of conduct consisting of decisions to do nothing, that is not to carry out specified work, a reversal of the present situation - that is, maintenance of the bans by the persons prima facie acting in concert - would require a positive decision to that effect. I considered that the delivery of letters, as provided by my order 3, would "maximise the prospect that, pending final hearings, the conduct under s 45D (1) which is now complained of will not continue". This would be because the Union's position would then become known with certainty to the affected Union members.' 58 It is significant that neither Mr Marshall nor any other officer of the UFU has given evidence disavowing the implication which I have drawn from the terms of the bulletin of 26 April 2005 and the subsequent silence of the UFU. I adopt the analysis which led North J in Australia Paper Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia (1998) 81 IR 15 at 16-17 to conclude that, in conferring the power to grant an injunction which is found in s 127(6) of the Act, Parliament intended that the Court would be guided by the principles established by equity for the grant of an injunction. 59 There may be no obligation on a defendant in an action for an injunction to make full and frank disclosure of all matters relevant to the exercise of the Court's discretion just as the maxim "he who comes into equity must come with clean hands" has no application to a defendant to a suit in equity; see Weingarten Bros v G & R Wills & Co [1906] SALR 34 at 84. However, where a union official having the carriage of an industrial dispute or negotiation declines to give evidence as to an intention or understanding which he can be taken to have formed on behalf of the union, the inference indicated at [56] of these reasons can more confidently be drawn because it can be assumed that the official's evidence, if it had been given, would not have advanced the union's case; see eg Jones v Dunkel (1959) 101 CLR 298 at 308 and 312 and Dilosa v Latec Finance Pty Ltd (1966) 84 W.N (Pt.1) (NSW) 557 at 582. 60 For these reasons, I am satisfied that the evidence, in its present state, is sufficient to establish a contravention by each of the respondents of Commissioner Foggo's Order.

[113]

(c) Should an injunction be deferred until after the determination of the proceedings in the High Court and this Court? 61 I have not been persuaded that the existence of either set of pending proceedings should induce the Court to exercise its discretion by refusing the injunctive relief which the applicant seeks. It was said on behalf of the respondents that Commissioner Simmonds' decision provided the foundation for the Order of Commissioner Foggo. Accordingly, so the argument went, until the validity of the earlier decision had been authoritatively established, it would be inappropriate to enforce that decision by giving the coercive force of an injunction by this Court to the Order which Commissioner Foggo had made in aid of the earlier decision. 62 The extant challenges to the decision of Commissioner Simmonds rest on two bases. The first is that he should not have proceeded to make a decision on the merits of the dispute because one of the parties had earlier sought a determination by another "body or court" contemplated by cl 12.7 of the Certified Agreement, namely this Court. However, as I have already pointed out at [54] of these reasons, if the decision of Commissioner Simmonds were to be set aside, there would be no determination of the substance of the "matter" or matters in dispute between the parties. 63 A second powerful consideration against exercising the discretion in the way sought by the UFU is that it had earlier elected to challenge the jurisdiction of Commissioner Simmonds by instituting an appeal to a Full Bench of the Commission which it withdrew on 16 June 2004. It would be inconsistent, I consider, with equitable principle, to allow a party, which had mounted a jurisdictional challenge and then allowed the matter to proceed to a determination on the merits, to rely on a revival of the jurisdictional challenge in order to resist enforcement of the decision on the merits. 64 A third and related consideration is that I regard the UFU's prospects of success on the challenge to Commissioner Simmonds' decision as slight. The proper interpretation of cl 12.7 of the Certified Agreement, which is not easy, does not immediately or inexorably suggest that a reference of a matter to an "other body or court" precludes the possibility of a reference to the Commission proceeding in parallel with the proceedings in the "other body or court." For the reasons explained at [51] to [53] above, some elements of the "matter" or "matters" in dispute were, in all likelihood, only capable of determination by the Commission or another non-judicial arbitrator. That favours a construction of cl 12.7 which would permit distributive references of different parts of the matter to the Commission on the one hand and a court on the other. 65 This analysis does not preclude the view that Commissioner Simmonds had a discretion, upon being apprised of the pending proceedings in this Court, to defer entertaining the whole or part of the reference to himself until after this Court had indicated which, if any, of the matters involved an "extra claim." However, that exercise of discretion could not be challenged by an attack on the Commissioner's jurisdiction. The observations by McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 which was subsequently approved by Gaudron, Gummow and Callinan JJ in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 445 can be paraphrased to apply with equal force to the power which Commissioner Simmonds purported to exercise. McHugh JA there said; 'If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.' 66 I do not accept that to give Commissioner Simmonds' decision the protection of an injunction under s 127(6) would be to render nugatory either the proceedings in the High Court or those in this Court. The Order of Commissioner Foggo is expressed to enure only until 1 August 2005 whereas the decision of Commissioner Simmonds is framed generally to be of indefinite duration subject, where indicated, to further consultation or evaluation. In those circumstances, a judgment upholding the attack on the Commissioner's jurisdiction, even if given after 1 August 2005, would not be without utility to the UFU. 67 It is true that the implementation of the Workplace Changes has not been shown to be a matter of pressing urgency for the MFESB. However, the MFESB has succeeded in persuading a member of the Commission to make an order under s 127 of the Act. That Order has a life limited to 1 August 2005 and it is highly probable that neither court proceeding will be determined by that date. The effective result of a refusal now to grant an injunction under s 127(6) will be to deprive the MFESB of the fruits of its success before Commissioner Foggo. In these circumstances, the following observations of Merkel J in Transfield Constructions Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 provide strong support for an exercise of the Court's discretion in favour of the application, which it must be remembered is for final relief, not an interlocutory injunction which was under consideration by his Honour; '30 The present case is a good example of the problem. The s 127 orders obtained by Transfield and Basin Oil only continue for a certain period. The first Transfield order expired without a s 127 order being made by the Court. Notwithstanding the Basin Oil order and the new Transfield order the industrial action has continued. It is clear that the expeditious resolution of the dispute over the industrial action sought to be achieved by s 127(3) would be defeated if enforcement of the AIRC´s orders is delayed.

[115]

… … … 34 In considering the strength of the claim for interlocutory relief due weight is to be given to the fact that s 127(1) orders have been made by the AIRC and to the reasons given by the AIRC for making those orders. The legislature has reposed in the AIRC, as an expert industrial tribunal, the power to determine whether an order to stop industrial action should be made. While the Court has an undoubted discretion under ss 127(6), its role is essentially intended to be one of enforcement of an order that has been made where there has been a contravention or proposed contravention of that order. While I accept that there is no presumption or pre-disposition in favour of the making of an enforcement order (cf ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256-258 and 267-268), I would expect that, in the usual course, there would have to be good reason not to enforce an order of the AIRC, given that the legislature has reposed in the AIRC, rather than the Court, the question of whether an order under s 127(1) is to be made and has provided that when it has been made the persons to whom the order is expressed to apply "must comply with" it (s 127(5)). Good reason may be shown if, for example, the AIRC erred in law, the order is shown to be invalid for any reason or where subsequent circumstances have arisen that make its enforcement inappropriate or unjust. I doubt, however, that the legislature intended that the Court should be required to embark on a hearing de novo of the s 127(1) application. 35 In that context, while the weight to be given to the reasons of an expert tribunal, such as the AIRC, in a particular case will depend upon the circumstances (see Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 154-155) in a case such as the present there is no reason why substantial weight should not be given to the reasons of the AIRC. The AIRC heard the matter over some six days, received evidence from 8 witnesses, a majority of whom were cross-examined, and prepared two carefully considered reasons for making s 127 orders on 11 October and 6 November.' 68 To the extent that it matters, I have found quite convincing, with respect, the reasoning which led Commissioner Simmonds to conclude that none of the Workplace Changes was an "extra claim" within the meaning of cl 49 of the Certified Agreement. It is true that I have formed that impression without the benefit of full argument which will occur at the hearing listed before Marshall J on 25 July 2005. However, the UFU's prospects of success on that argument have an obvious bearing on the exercise of the Court's discretion under s 127(6). I am not persuaded that they are sufficiently strong to allow a provisional finding that Commissioner Foggo's Order has been infected by an error of law or to warrant, on some other basis, an exercise in favour of the UFU of the discretion discussed by Merkel J in Transfield v AFMEPKIU (supra).

[127]

in the terms of a draft bulletin proposed by the MFESB. 73 Counsel for the UFU have pointed out that the draft order has been couched in terms which suggest that Commissioner Simmonds in his decision had approved for immediate implementation each of the five Workplace Changes. However, it was made clear by the Commissioner in the passage from [33] of his reasons quoted at [10] above that the matter or grievance concerning the Operational Support Group should be referred back to the EBIC for processing in accordance with the Certified Agreement. If it thereafter remained unresolved, it should be dealt with (presumably by the Commission) as a "new matter." 74 Since Commissioner Foggo's Order was clearly framed to proscribe industrial action in respect of "approved matters" in the sense of those Workplace Changes which had been approved for immediate implementation by Commissioner Simmonds, it follows that it would be an inappropriate exercise of the Court's discretion to grant an injunction enforcing that part of Commissioner Foggo's Order which was directed to the Occupational Support Group. 75 As to the Workplace Change identified as "Skills Maintenance", it was urged on behalf of the UFU that any injunction should be framed to permit computerised data recording only for the maintenance of a skills base and not for "the broader agenda of [the MFESB] as disclosed in paragraph 42 of the Garcia affidavit." Paragraph 42 of an affidavit by Arnold Garcia sworn 28 April 2005 and filed in the present proceedings recites; 'The Skills Maintenance Program involves the electronic recording of all of these matters in a centralised database, which can be easily accessed and searched at any time. It gives the MFESB an ability to easily, quickly and accurately determine from the one centralised source those officers and firefighters that have particular skills and abilities, and distribute these employees across the workforce appropriately. It also allows the identification of those employees that may need extra drills or special training, to bring particular skills up to date.' 76 As I understand it, Commissioner Simmonds approved the extension of a "computerised system of skills maintenance recording" across all zones subject to the MFESB, in consultation with the UFU, monitoring the progressive development of the new system during the first twelve months of its life and subject to a consultative evaluation of the system at the end of that period by the MFESB and the UFU. The UFU's present complaint appears to be directed to the MFESB's using the new database for distributing appropriately qualified employees across the workforce as well as keeping it as a progressive record of the skills acquired and maintained by each employee. It does not seem that the complaint which the UFU now raises was agitated before either Commissioner Simmonds or Commissioner Foggo. Accordingly, if the use which it is said the MFESB proposes to make of the Skills Maintenance Record was not contemplated by Commissioner Simmonds' decision and, if disclosed, would not have been permitted, that is a matter properly to be addressed in an application to Commissioner Simmonds for a variation of his decision. If such a variation is achieved before 1 August 2005, the UFU can apply pursuant to the liberty which I shall reserve, for an appropriate change to be reflected in the order which I propose to make in the light of these reasons. 77 In relation to the fifth Workplace Change, identified as the Fire Safety Inspection Course, the UFU referred to [68] and [69] of Commissioner Simmonds' decision which have been reproduced at [18] of these reasons. It was pointed out that the draft indemnity settled by a senior member of the Victorian Bar has only recently been furnished to the UFU and the other steps detailed in [68] of the Commissioner's reasons have yet to be taken. The implication from these references by the UFU seems to be that it should not be shut out from industrial action in respect of the Fire Safety Inspection Course until the attempt by the parties to resolve any remaining differences and, if necessary, the conciliation conference contemplated by Commissioner Simmonds at [68] of his decision, have been completed. However, the Commissioner expressly directed in [69] of his decision that "while the above steps are being taken the UFU should withdraw its advice to its members not to undertake or complete the agreed training." 78 In the light of that direction, I consider that the preferable interpretation of Commissioner Simmonds' reasons in respect of the Fire Safety Inspection Course is that he regarded the matter as resolved, subject to any disagreement emerging as to the form of the indemnity or "any remaining differences." Accordingly, by contrast with the position obtaining in respect of the Occupational Support Group, Commissioner Foggo was entitled to treat the Fire Safety Inspection Course as an "approved change" and, in accordance with Commissioner Simmonds' direction, which was at least contingent or provisional, to protect it by the Order which she made under s 127(1) of the Act. 79 The final objection taken on behalf of the UFU to the form of injunction proposed by the MFESB was that the draft bulletin which the MFESB claimed should be sent to UFU members contained expressions of beliefs and opinions which neither respondent holds and which could be relied on by the MFESB in either or both the proceedings in the High Court and in this Court as admissions against interest by the UFU. I take leave to doubt whether a statement made under compulsion of a curial order can constitute an admission for the purpose of other proceedings. In any event, I do not discern in a statement that a party has been directed by a court to instruct other persons to discontinue or refrain from industrial action, any expression of opinion or belief by that party. Moreover, the objection by the UFU can safely be overcome by an express proviso in the Court's order which I propose to include to the effect that the bulletin has been issued solely to comply with the injunction and is without prejudice to any case which the respondents may seek to make in either the High Court proceeding instituted on 7 April 2005 or the proceedings numbered VID151/2004 in this Court. That proviso will be consonant with the stipulation in cl 12.9 of the Certified Agreement that "No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause."

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

At a glance

Court

Decision date

Before

Source

Judgment (130 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (18)

Cited By (2)