Has there been a contravention of s 298K(1) of the WRA?
84 The applicants submitted that the laying of the charges against Station Officer Cass and Station Officer Cavanagh were made for a purpose which contravened s 298K(1) of the WRA. Section 298K(1) provides:
"An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
…"
The prohibited reason relied upon is that found in s 298L(1)(l) which provides:
"Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions;
…"
The Court has power under s 298U(e) to grant interim injunctions restraining a contravention of s 298K.
85 The dissatisfaction with industrial conditions relied upon is that Station Officer Cass and Station Officer Cavanagh are dissatisfied with the condition that they are subject to the supervision of Inspectors who have acted contrary to the Union and its members' policies.
86 The provisions of s 298V of the WRA must be borne in mind. Section 298V provides:
"If:
(a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise."
87 Both Station Officer Cass and Station Officer Cavanagh have been well aware of the industrial issue which has been simmering for some time in relation to Inspectors who have signed individual contracts of employment being supervisors of operational staff. Both Officers are opposed to being supervised by such Inspectors although they are both ready to cooperate with Inspectors on operational firefighting matters.
88 The Board submitted that the laying of the charges and the hearing of them did not injure Station Officer Cass and Station Officer Cavanagh in their employment or alter their position to their prejudice. The Board submitted that what s 298K(1)(b) and (c) required was not just injury to a person personally but an injury which focussed on his or her employment. It was also said that any alteration to the position of an employee, to be a contravention of s 298K(1)(c), had to be an alteration to the employee in their capacity as an employee.
89 I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the Board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the Board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven.
90 That there is a serious question to be tried on this issue is demonstrated by reference to the observations of the Full Court of the Federal Court in Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93 at 100:
"The question is whether, by sending the e‑mail to its recipients, Telstra had altered the position of any of its employees to the employee's prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers 'not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question'. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies' businesses being 'extremely tenuous' with the 'security of the employees' employment [being] consequentially altered to their prejudice'. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c)."
Although the laying of the charges and the hearing of them of itself does not result in a permanent injury to an employee or an alteration of the employees' position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in s 78D of the MFB Act (par [12]).
91 There is support for this view in Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 in which Wilcox J considered, inter alia, whether actions of a bank in counselling and formally warning an employee were actions which altered the position of the employee to the employee's prejudice. It was said by the bank that the counselling was a stage in the bank's disciplinary procedures. Wilcox J said at 378:
"I accept the relevant 'disciplinary action' might be demotion rather than dismissal. However, demotion from the position of branch manager would itself be a significant detriment. To take a step that had the effect of 'using up' Ms Buckland's chance to be first warned about any future unsatisfactory conduct, rather than be immediately dismissed or demoted, was to alter her position to her prejudice. The point was made by Branson J in CFMEU at par 95:
'Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee's employment. In a sense, written warnings under the respondent's disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences'".
92 The Board submitted that the laying and hearing of the charges in the present case was not analogous to what had been considered by Wilcox J as no warnings or the imposition of demerit points was involved. That distinction may be a valid distinction but I am satisfied that there is, nevertheless, a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.
93 The Board relied upon the observation of Marshall J in Major v State of South Australia [1999] FCA 1684 in which the State of South Australia refused to accede to the applicant's request to grant a further period of special leave without pay (which leave had existed since January 1984) to enable the applicant to be employed by the Australian Education Union. The State of South Australia intended to proceed with disciplinary charges against the applicant if he did not resign from the Department of Education Training and Employment. Marshall J said at par [18]:
"The rejection of Mr Major's application for a further period of special leave without pay was considered in accordance with the administrative instruction of April 1997. That was all the respondent was required to do. It was open to the respondent in so doing to reject the application. The rejection of the application did not result in an injury of any compensable kind nor did it constitute an adverse affection of, or deterioration in an advantage enjoyed by Mr Major. Consequently I do not consider that the respondent engaged in any overt act which fell within s298K(1) of the Act. It is therefore unnecessary to determine whether reasons for the decision included prohibited reasons fitting within s298L(1)(a) or (m) of the Act. It also follows that the respondent's intention to proceed with disciplinary action against Mr Major, in the event that he does not resign from his employment with the respondent and fails to return to work with the Department, does not constitute a breach of the material provisions of Part XA of the Act. Accordingly the appropriate order to make is that the application be dismissed."
I consider the circumstances before Marshall J to be distinguishable from the present circumstances as the employee was, in effect, seeking an indulgence as he only had an extension of special leave until 28 February 1999 and was not entitled as of right to any further extension.
94 However, in order for there to be a serious question to be tried that the Board has engaged in conduct in contravention of s 298K(1)(b) or (c) there has to be a serious question that the Board is engaging in that conduct for the prohibited reason set out in subpar (l) of s 298L(1). Such conduct is for a prohibited reason if it is carried out because the employee:
"… who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions."
The Union and Station Officer Cass and Station Officer Cavanagh accepted that s 298L(1)(l) requires that the subject matter of the conditions being sought by the Union must be contiguous with the conditions in respect of which the employees were dissatisfied. This acknowledgment was an acceptance of the proposition set out by Northrop J in Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at 269‑270:
"One of the chief objectives of any organisation of employees is to seek better industrial conditions for its members. The words 'an organisation which is seeking better industrial conditions' contained in s. 5(1)(d) [the predecessor of s 298L(1)(l)] do not refer to this general objective but must refer to identified industrial conditions which the organisation is seeking to better. To come within this paragraph the employee member must be dissatisfied with the same industrial conditions. The paragraph takes as its subject matter the identified industrial conditions which then form the link between the seeking by the organisation to better those conditions and the dissatisfaction by the employee member with those conditions as they then exist."
95 The industrial conditions in respect of which Station Officer Cass and Station Officer Cavanagh were and are dissatisfied is that employees of the Board who are members of the Union are subject to the supervisory authority of officers of the Board with the rank of Inspector. The relevant industrial condition was put by counsel for the applicants in the following terms:
"the Union has been seeking a better industrial condition in respect of persons appointed as Inspectors whom the membership have call 'scabs' and the better industrial condition they have been pursuing and are still pursuing was to bring about a situation where the Inspectors who are considered to be scabs do not have supervisory authority over ranks of firefighters which takes one up to the level of Senior Station Officer."
It was said that the dissatisfaction related to the supervision of employees who are union members by Inspectors who had acted contrary to the Union and the policy of its members by accepting the position of Inspector under an individual contract of employment. There was also an issue that this supervision by the Inspectors had involved attending at fire stations and standing down firefighters who would not take a direction to stand by to relieve at another station and would not perform higher duties to cover an absence from a shift. Put shortly, it was the authority of the Inspectors to supervise the employees who were members of the Union which has been the subject of dissatisfaction.
96 In the present case s 298V of the WRA has the effect that it is presumed that the reason for laying the charges against Station Officer Cass and Station Officer Cavanagh, and the intention to continue with the hearing of them, is that Station Officer Cass and Station Officer Cavanagh are dissatisfied with their industrial conditions which the Union is seeking namely being supervised by Inspectors, unless the Board proves otherwise.
97 I am satisfied that the Board has proved otherwise, for the purposes of s 298V, to the extent that there is no serious question to be tried that the charges have been laid against Station Officer Cass and Station Officer Cavanagh are now being proceeded with for the prohibited reason relied upon.
98 The evidence presented by the Board was that the decision to charge Station Officer Cass and Station Officer Cavanagh was made by Mr Davies and that he was not instructed or encouraged by any other person to lay those charges. Mr Davies said that his decision to charge them was made solely on the basis that they had wilfully refused to comply with an order and that they did not provide any explanation for their failure to comply with the order. Mr Davies specifically denied that the charges were brought against Station Officer Cass and Station Officer Cavanagh because they are Union members who were expressing solidarity with other members in order to advance their terms and conditions.
99 The applicants submitted that there were gaps in Mr Davies' evidence with the consequence that the Board had not proved "otherwise" for the purposes of rebutting the presumption in s 298V. The applicants relied, in particular, upon a report from Mr Davies to Mr Murphy, the Acting Director of Operations, on 22 January 2003 in relation to Station Officer Cass. In that report Mr Davies set out charges against Station Officer Cass. At the end of that report there appears the notation "Noted. Matter to proceed" and the notation is signed by Mr Murphy and is dated 31 January 2003. The applicants relied upon this notation as demonstrating that the decision to lay the charges was not Mr Davies' but rather Mr Murphy's decision in respect of which there was no evidence from Mr Murphy. Put shortly, it was said that there was no evidence from Mr Murphy for the purposes of rebutting the presumption in s 298V. I do not accept this submission.
100 The applicants relied upon a meeting between a number of the Inspectors on 24 December 2002 which resulted in a decision being made to give Station Officer Cass and Station Officer Cavanagh a written direction. However that evidence, of itself, is insufficient to raise a serious question that persons other than Mr Davies made, or were participants in, the decision to lay the charges.
101 I am satisfied that the evidence before the Court is sufficient to establish that the laying of the charges and the hearing of the charges and the decision to lay the charges and proceed with the hearing did not occur and has not occurred for the prohibited reason set out in s 298L(1)(l). I do not consider that there is a serious question to be tried to the contrary. Mr Davies has said that he was the decision‑maker in respect of the charges and I do not consider that the notation by Mr Murphy gainsays that proposition. It does no more than approve the decision already made. Mr Hunter and Inspector McCall also confirmed that the decision to lay the charges was made by Mr Davies.
102 On 11 February 2002 the Board held a one‑day workshop which involved all Inspectors, including 22 newly appointed Inspectors. The purpose of the workshop was to assist the Inspectors in developing interpersonal skills. According to Mr Carlisle the workshop did not involve the development or the establishment of the Board policy, nor any decisions made in respect of Board policy. Mr Marshall has been informed by an unnamed person who attended the meeting that "it was said at that meeting that the MFESB would use discipline and charge someone to scare the rest of the workforce". Mr Marshall produced a copy of the notes of the meeting by the unnamed person which recorded, inter alia, that "Someone has to be scarified for the good. - charging someone to scare the rest". The notes do not attribute these statements to any person. In particular these statements are not attributed to Mr Carlisle or to Mr Peter Akers the Chief Executive Officer of the Board, unlike other statements which are attributed to identified persons such as Mr Carlisle and Mr Akers. Mr Carlisle said that he and Mr Akers attended the final session of the workshop which lasted approximately one hour. He and Mr Akers responded to a number of questions from the Inspectors but he did not say that the Board would use discipline and charge someone to scare the rest of the workforce. Mr Carlisle did not recall Mr Akers or anyone else making such a statement.
103 Mr Davies, then an Inspector and now a Commander of the Southern Zone, also attended the workshop on 11 February 2002. He denied that Mr Akers or Mr Carlisle stated that the Board would use discipline and charge someone to scare the rest of the workforce. He said he was not aware of any Board policy that required charges to be laid against someone in order to scare the rest of the workforce.
104 I do not consider that the written summary of what is said to have occurred at the workshop on 11 February 2002 raises a serious question that the charges laid against Station Officer Cass and Station Officer Cavanagh were for a prohibited reason. The words set out in the summary are not attributed to any particular person, let alone a person authorised to speak for and on behalf of the Board or any person involved in the charging of Station Officer Cass and Station Officer Cavanagh. Mr Carlisle denied saying that the Board would use discipline and charge someone to scare the rest of the workforce and he did not recall Mr Akers or anyone else at the meeting making such a statement. Mr Davies who was present at the meeting denied that Mr Akers or Mr Carlisle stated that the Board would use discipline and charge someone to scare the rest of the workforce. In the absence of some evidence as to the identity of the person who might have made the statement referred to in the notes and the context in which it arose, I do not consider that there is a serious question to be tried that the purpose, or a part of the purpose, in laying the charges against Station Officer Cass and Station Officer Cavanagh and proceeding with the hearing of them, is to scare the rest of the Board's workforce. It is also significant that the statement relied upon was said to have been made over 10 months before the incident giving rise to the charges occurred. That lapse of time and the inability of the applicants to identify who made the statement makes any connection between the statement and the overt act of the laying of the charges speculative and does not raise a serious question to be tried as to a causal connection between the statement and the laying of the charges.
105 As I have noted earlier, there may be an issue as to whether Station Officer Cass and Station Officer Cavanagh were given an opportunity to explain their conduct before the charges were laid but I do not consider that this raises any serious issue as to the reason why the charges were laid.
106 In support of their submission that I could not be satisfied that the evidentiary burden imposed upon the Board by s 298V had been discharged, the applicants referred to Australasian Meat Industry Employees' Union v G&K O'Connor Pty Ltd (supra) in which Gray J was not satisfied that the person who made the relevant decision to dismiss the employee had given evidence. The facts before Gray J are distinguishable from the circumstances before me as there is evidence that Mr Davies was the sole decision‑maker and as I have noted earlier, I accept that evidence and am satisfied that there is not a serious question to be tried to the contrary.
107 There is also an issue as to whether the threshold required to engage subpar (l) of s 298L(1) has been crossed. Subparagraph (l) requires a finding that the Union "is seeking" better industrial conditions. The phrase is couched in the present tense and the Board submitted that there were no identifiable industrial conditions in the present circumstances which the Union was actively seeking to better. There has been a history of dissatisfaction with the issue of Inspectors supervising employees who are members of the Union but there was no evidence that that situation was actively being pursued by the Union in or about December 2002. Certainly no claim had been made in that respect by the Union which was outstanding and unresolved as at December 2002. In addition to the 2002 Agreement, there was also in existence in December 2002 another certified agreement, the Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Inspectors Agreement 2002 which was certified on 27 March 2002 pursuant to Pt VIB of the WRA. The Board relied upon cl 28 of that agreement which provided for the duration of the agreement the parties, namely the Board and the Union, would "make no claims in relation to matters covered under the terms of this agreement and the award". However, there is nothing in the agreement relating to the issue of Inspectors supervising or not supervising employees of the Board who are members of the Union and I do not consider that cl 28 precludes the raising of the issue which forms the dissatisfaction relied upon.
108 Nevertheless, I consider that in order for s 298L(1)(l) to be activated there must be some current campaign undertaken by the Union, and not necessarily in the context of the bargaining period, in respect of the subject matter of the dissatisfaction. There is no evidence that such a situation was current as at December 2002. The consequence is that the threshold or condition precedent for the activation of s 298L(1)(l) has not occurred.