FEDERAL COURT OF AUSTRALIA United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2004] FCA 1333 INDUSTRIAL RELATIONS – application for penalty under s 178 of the Workplace Relations Act 1996 (Cth) for alleged breach of certified agreement – whether clause in certified agreement which, on a literal construction, prescribes a general dispute resolution procedure, extends to disciplinary issues – examination of contextual issues displaced literal construction of provision – application dismissed Workplace Relations Act 1996 (Cth) s 178 Metropolitan Fire Brigades Act 1958 (Vic) Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Operational Staff Agreement 2002 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466, referred to UNITED FIREFIGHTERS' UNION OF AUSTRALIA, GREGORY CASS, GLEN CAVANAGH, KEVIN CASSIDY and PHILIP McGRATH v METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD V 270 OF 2003 MARSHALL J 14 OCTOBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 270 OF 2003 BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA FIRST APPLICANT GREGORY CASS SECOND APPLICANT GLEN CAVANAGH THIRD APPLICANT KEVIN CASSIDY FOURTH APPLICANT PHILIP McGRATH FIFTH APPLICANT AND: METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 14 OCTOBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 270 OF 2003 BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA FIRST APPLICANT GREGORY CASS SECOND APPLICANT GLEN CAVANAGH THIRD APPLICANT KEVIN CASSIDY FOURTH APPLICANT PHILIP McGRATH FIFTH APPLICANT AND: METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT JUDGE: MARSHALL J DATE: 14 OCTOBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This proceeding raises for consideration the proper construction of a clause in a certified agreement dealing with the resolution of disputes occurring between the respondent and the first applicant and members of the first applicant. 2 The proceeding is an application for a penalty on the respondent for alleged breaches of terms of a certified agreement by the respondent ("the Board"). The proceeding is brought pursuant to s 178 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). The parties 3 The first applicant, United Firefighters' Union of Australia ("the Union") is an organisation of employees registered under the WR Act. The second to fifth applicants respectively are members of the Union who are employed by the Board. The Board is a statutory corporation established under the Metropolitan Fire Brigades Act 1958 (Vic) ("the MFB Act"). The 2002 Agreement 4 All parties to this proceeding are bound by the Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Operational Staff Agreement 2002 ("the 2002 Agreement"). 5 On 28 November 2002 the Australian Industrial Relations Commission ("the Federal Commission") certified the 2002 agreement under s 170LJ of the WR Act. 6 Clause 7 of the 2002 Agreement provides: "This Agreement is to be read and interpreted wholly in conjunction with the Victorian Firefighting Industry Employees Interim Award 2000 as varied from time to time, provided that where there is any inconsistency between this Agreement and the Award this Agreement will take precedence. This agreement supersedes all the provisions in the UFU/MFESB Operational Staff Agreement 1999." 7 Clause 9 of the 2002 Agreement provides: "9.1 Definitions Consultation Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Change Change includes, but is 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. 9.2 Enterprise Bargaining Implementation Committee 9.2.1 The parties are committed to effective consultation and communication throughout the MFESB. As a demonstration of that commitment the parties have undertaken to continue to operate the Enterprise Bargaining Implementation Committee (EBIC) to facilitate the implementation of this agreement. The EBIC will consider all matters relating to ongoing workplace reform and introduction of change. 9.2.2 The EBIC will comprise equal numbers of management and employee representatives as determined by the respective parties, and decision making will be by consensus. 9.2.3 There is an obligation on EBIC members to cooperate positively to consider matters that will increase efficiency, productivity, competitiveness, training, career opportunities and job security. 9.2.4 The EBIC will program meetings on a regular basis (at least monthly) and the UFU will communicate the outcomes of meetings to employees covered by this agreement. 9.2.5 The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. 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, the Enterprise Bargaining Implementation Committee. 9.2.6 The functions of the Enterprise Bargaining Implementation Committee will be to: · monitor the implementation of this agreement · consider and determine recommendations for MFESB Board and UFU Branch Committee of Management, issues arising under this agreement and other change matters including any claim in relation to any matter contained in Appendix B · provide a mechanism for employees input into the implementation of this agreement thus providing an opportunity to utilise employee knowledge and experience · provide a mechanism for improving communication and cooperation between the MFESB and its employees 9.2.7 EBIC may, by agreement, alter its size and/or composition. EBIC may establish sub-committees and/or working parties to research and make recommendations to EBIC on specific issues, for determination by EBIC at a later date. 9.2.8 Where UFU nominees are participating on EBIC or any sub-committee established by the Committee the following will apply: · When the employee is on duty arrangements will be made to facilitate his/her attendance at meetings without loss of pay. · When a meeting occurs while the employee is off duty, the employee will be paid at normal rates for the time involved with a minimum of 4 hours, or an equivalent allocation of accrued leave. 9.3 Process Prior to the introduction of any proposed change the following will take place: 9.3.1 Proposals for change Any proposals relating to change from either party will be provided in writing to EBIC. 9.3.2 Alternative proposals 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. 9.3.3 Response to alternative proposals 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 MFESB to the Committee. 9.3.4 Disputes resolution Any dispute concerning either party under this clause shall be dealt with in accordance with the Disputes and Grievance clause of this Agreement. 8 Clause 12 of the 2002 Agreement is entitled "DISPUTE RESOLUTION". It provides: "12.1 To ensure effective consultation between the employer, its employee(s) and the union on all matters pertaining to the employment relationship, including the application of this agreement, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance: 12.2 Step 1 The dispute shall be submitted by the employee representative and/or employee(s) to the employee's immediate supervisor. 12.3 Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer. 12.4 Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation. 12.5 Steps 1-3 Must be concluded within a period of ten (10) consecutive days. 12.6 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 (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement. 12.7 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; or other body or court for conciliation/mediation and if necessary for determination. Any determination includes access to appeal. 12.8 Notwithstanding the words contained in clause 12.2, the steps of the procedure apply equally to a dispute raised by an employee or Officer in Charge. 12.9 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. 12.10 This clause shall not apply to a dispute on a Health and Safety issue. 9 Clause 12 of the 2002 Agreement was included in that agreement as a consequence of s170LT(8) of the WR Act and in accordance with s 170LW(a) of that Act. The Relevant State legislative provisions 10 Sections 78A to 78E of the MFB Act provide a legislative code for the laying and determining of disciplinary charges concerning offences allegedly committed by operational staff employed by the Board. These sections appear under the heading "Discipline" and provide: "78A. Offences by officers or members A member of the operational staff who is- (a) guilty of any breach of the regulations; (b) guilty of any misconduct; (c) negligent or careless in the discharge of his duties; (d) inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or (e) guilty of any disgraceful or improper conduct- shall be guilty of an offence. 78B. Laying of charges (1) A member of the senior operational staff may, after an investigation, lay a charge for an offence under section 78A. (2) The Chief Executive Officer may suspend from duty with pay any person charged under sub-section (1) until the charge is dealt with under section 78D. 78C. Hearing of charges (1) The Chief Executive Officer must hear a charge laid under section 78B. (2) A member of the operational staff and any other party to the hearing is entitled to be represented at the hearing of the charge by a legal practitioner or other person. (3) The representative of a party may examine witnesses and address the Chief Executive Officer on behalf of the party. (4) If the member of the operational staff does not attend in person or by a representative at the time and place fixed for the hearing, the Chief Executive Officer may proceed in his or her absence. 78D. Decision of Chief Executive Officer (1) If, after hearing the charge, the Chief Executive Officer is satisfied that the offence was committed, he or she may do any one or more of the following- (a) reprimand the member concerned; or (b) reduce the position of the member concerned for such period as the Chief Executive Officer thinks fit; or (c) impose a fine of not more than 40 penalty units; or (d) suspend the member from duty with or without pay for a period not exceeding 6 months; or (e) dismiss the member concerned. (2) If a fine is imposed under this section, the amount of the fine may be deducted from the pay of the member fined but not more than ˝ of penalty unit may be deducted from the pay attributable to any one week. 78E. Pay while suspended (1) A member of the operational staff who has been suspended from duty without pay under section 78D may engage in paid employment during the term of the suspension. (2) All pay which accrues to a member during any period of suspension without pay must be withheld. (3) If the Appeals Commission upholds an appeal by the member in respect of the charge for which he or she has been suspended, all pay withheld under sub-section (2) must be immediately paid to the member, less any earnings received by the member during the period of suspension. (4) If an appeal by the member is not upheld by the Appeals Commission in respect of the charge for which he or she has been suspended or no appeal is lodged within the prescribed time, all pay withheld under sub-section (2) is forfeited unless the Appeals Commission orders otherwise." 11 Division 5 of Part 3 of the Metropolitan Fire Brigades (General) Regulations 1994 (Vic) ("the Regulations") is headed "Discipline". Regulations 25 to 27 provide as follows: "25. General orders (1) The Chief Officer may issue to operational staff such general orders as may be desirable. (2) An operational staff member must comply with a general order applying to him or her. (3) The Board must keep a current General Order Book containing a signed copy of all general orders issued under sub-regulation (1). (4) A copy of the General Order Book must be kept and be accessible at each place at which operational staff members are based. 26. Prohibitions on members An operational staff member must not- (a) disobey or fail to carry out a general order or any lawful order given in the course of his or her duty whether the order is in writing or not; or (b) exceed or misuse the member's authority; or (c) wilfully cause or allow loss, damage or injury to occur to any person or property; or (d) whilst on duty partake in or be under the influence of or affected by any intoxicating liquor, narcotic, hallucinogen, medication or substance which could or is likely to impair, limit or affect the member's performance of duty; or (e) whilst on duty have any of the substances referred to in paragraph (d) in his or her possession or at the workplace; or (f) act in a manner likely to bring discredit on the reputation of the Board or diminish public confidence in it; or (g) be found guilty of having committed an indictable offence whilst on duty; or (h) be found guilty of having committed an indictable offence under Division 2 of Part 1 of the Crimes Act 1958 whilst not on duty if the offence involved dishonesty or corruption or intent to deceive or defraud, or trespass. 27. Charges for offences (1) If an operational staff member is charged with an offence under section 78A of the Act, the member must be given 7 days' notice in writing of the particulars of the charge and the time and place of the hearing of the charge under section 78C of the Act. (2) The Chief Executive Officer must cause an operational staff member charged with an offence to be given notice in writing of the decision made at the hearing of the charge. (3) A notice under this regulation may be given personally or may be served by post on the member at the member's last known place of residence." 12 Section 79 of the MFB Act creates a Metropolitan Fire and Emergency Services Appeals Commission ("the Appeals Commission"). Under s 79A, it is the function of the Appeals Commission to hear and determine appeals by operational staff, including (pursuant to s 79H) an appeal against a decision of the Chief Executive Officer under s 78D. Section 79L deals with the procedure to be applied on such an appeal. Certain related administrative matters are governed by regulations 28, 29 and 30 of the Regulations. 13 The importance of discipline in the operations of the Board was the subject of affidavit evidence given by the former Group Employee Relations Manager of the Board, Mr Peter Bertolus. That evidence was the subject of an objection by counsel for the Union, Mr Rozen, on the ground of relevance and on the ground that Mr Bertolus was not qualified to express opinions about discipline. I accept the submissions of Dr Jessup QC (who appeared with Mr P Wheelahan) that Mr Bertolus' evidence about discipline in the Board is part of the objective facts against which the Court should construe the 2002 Agreement. I also accept that Mr Bertolus at paragraphs 9 to 12 of his affidavit of 11 March 2004 was expressing his observations about how the Board operates, as distinct from any expert opinion. 14 Paragraphs 9 to 12 of Mr Bertolus' affidavit are as follows: "Discipline within the MFESB is a key aspect of the command and control structure. The nature of the work performed by operational staff, the circumstances of emergencies in which work is frequently performed, and the high degree of control and responsibility necessary for fire suppression and fire prevention services to be provided effectively and efficiently mean that a high level of discipline is necessary across operational staff. Disciplinary measures must be effective, but they must also be capable of swift application with immediate effect because of the significant issues of personal and public safety involved in the discharge of the MFESB's statutory functions. It is critical, whether on the fireground or at the fire station, that the officer in charge can set priorities and make decisions that will be acted upon by firefighters. When the decision is made it is final. A uniformed service that cannot access a robust disciplinary system potentially may experience significant workplace accidents, lose community confidence and be ineffectual in its service delivery. Discipline in the fire service ensures order is restored out of chaos on the firegound. Any delays to directions can have devastating impacts. The origins for this reflex action are practised in non-emergency roles of the firefighter, building confidence in leaders that discipline problems won't emerge during battle. It is a continuum – discipline does not stop and start. It is inherent in everything the MFESB does and differentiates the fire service from other professions." The antecedents to cl 12 15 Prior to 1993 the employment of operational staff employed by the Board and its predecessors was regulated by State law. Clause 30 of the Fire Brigades Operational Staff Award (No 1 of 1988), an award made by the Industrial Relations Commission of Victoria ("the State Award"), provided for a dispute and grievance procedure. Excluded from the reach of that procedure by cl 30(b) of the State Award were: "…claims which seek to vary this Award, or to any matter to which s 78A of the MFB Act "Discipline" is applicable…" 16 In 1993, the Federal Commission, made the Victorian Firefighting Industry Employees Interim Award 1993 ("the 1993 Award"). Clause 48(a)(ii) of the 1993 Award was in materially identical terms to the savings provision concerning discipline which was found in cl 30(b) of the State Award. 17 On 9 June 1999, the Federal Commission certified the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 1999 ("the 1999 Agreement"). Clause 12 of the 1999 Agreement was in materially identical terms to cl 12 of the 2002 Agreement. In each provision, a savings clause dealing with discipline is not provided. 18 On 1 March 2000, Commissioner Hingley of the Federal Commission amended the 1993 Award, by, amongst other things, deleting the savings provision relating to discipline from the clause dealing with the disputes and grievance procedure. The savings clause was deleted by Hingley C because he considered, correctly, that the issue of discipline was not an allowable award matter under s 89A of the WR Act. Hence it followed that a provision purporting to save a subject matter, (ie. discipline) that was not covered by the body of the disputes and grievance clause, was unnecessary. The charged officers 19 Each of the personal applicants was charged under the disciplinary provisions of the MFB Act. Mr Cass (the second applicant) and Mr Cavanagh (the third applicant) were charged by Acting Commander D K Davies in letters each dated 21 February 2003. Commander Martin charged Mr Cassidy (the fourth applicant) by letter dated 11 December 2001. Commander Hunter charged Mr McGrath (the fifth applicant) by letter dated 20 June 2001. The text of the charges are set out in the interlocutory judgment of Goldberg J in this proceeding at [2] to [5]: see United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466 at 467 to 471. The Union's response to the charging of Mr Cassidy 20 On 21 February 2003, Mr Peter Marshall, the Victorian Branch secretary of the Union sent an email and facsimile transmission to Mr Bertolus in the following terms: "Dear Peter I wish to notify a grievance pursuant to clause 12 of the MFESB UFU Operational Staff Certified Agreement 2002 in respect of the MFESB pursuing charges against Kevin Cassidy. As in principle agreement between the UFU and the MFESB was reached last year about this matter, and accordingly the matter should not proceed. In accordance with the provisions of Clause 12.9, whilst the disputes procedure is being followed the listing or hearing of charges (including the hearing on Monday 24 February 2003) should not proceed. Yours faithfully Peter Marshall Victorian Branch Secretary" 21 On the same day Mr Marshall sent Mr Bertolus a further communication setting out in eleven numbered paragraphs why the listing or hearing of the charges against Mr Cassidy should not proceed. 22 Mr Bertolus responded to Mr Marshall's communications by letter dated 3 March 2003. The concluding part of that letter said: "…the dispute resolution procedures in clause 12 of the enterprise agreement do not operate to interfere with the statutory disciplinary procedures. The disciplinary proceedings against Mr Cassidy will continue as previously notified." The Union's submission of a general grievance concerning discipline 23 On 10 March 2003, Mr Marshall sent a further email and facsimile transmission to Mr Bertolus, in which he submitted on behalf of the Union "a dispute or grievance about the process and use of disciplinary functions under ss 78A to 78E of the [MFB] Act." ("the general dispute"). The Union's response to the charging of Mr Cass and Mr Cavanagh 24 Also on 10 March 2003, Mr Marshall submitted "a dispute or grievance" to Mr Bertolus about the laying of and hearing of charges against Mr Cass and Mr Cavanagh. The Board's position 25 Mr Bertolus did not convene a meeting under cl 12.6 of the 2002 Agreement as a result of either of the 10 March 2003 communications from Mr Marshall but maintained the Board's position about disciplinary matters not being within the reach of cl 12 of the 2002 Agreement. The Union goes to the Federal Commission 26 On 11 March 2003 the Union filed a dispute notification in the Federal Commission concerning the general issue of discipline and concerning the charges against Mr Cavanagh and Mr Cass. A further notification was filed on 14 March 2003 concerning Mr Cassidy and another on 26 March 2003 concerning Mr McGrath. All four notifications were dealt with by Commissioner Simmonds of the Federal Commission. Simmonds C determined that matters of discipline in the Board were regulated by State law and not the 2002 Agreement. The Commissioner determined that the general dispute could be progressed under cl 9 of the 2002 Agreement as a dispute concerning the implementation of change within the Board. The Union has sought leave to appeal that decision to a Full Bench of the Federal Commission but that application has been adjourned pending the determination of this proceeding. Taking of steps 1 to 3 27 During the hearing the Court raised with counsel, whether there was evidence before it that the steps described in cl 12 as steps 1, 2 and 3 had occurred in relation to the breaches of the Agreement alleged by the Union. Dr Jessup informed the Court that the Board did not take the point that steps 1 to 3 had not been taken and must be "held against our side to have been taken". Proper construction of cl 12 28 Construed literally, and without regard to context, cl 12 of the 2002 Agreement covers disciplinary issues. That is because disciplinary issues are matters that pertain to the employment relationship: see cl 12.1. Further there is no savings provision in cl 12 for the State disciplinary legislative provisions. The fact that no savings provision now appears in the 1993 Award as amended does not necessarily detract from the literal construction of the 2002 Agreement. This is so because the 1993 Award is subject to s 89A of the WR Act and the 2002 Agreement is not subject to s 89A as it is founded on s 51(xx) of the Constitution and not s 51(xxxv): see Knox City Council Print PR 914635, 22 February 2002, Australian Industrial Relations Commission at [28], per Kaufman SDP. 29 Consequently, whilst the 1993 Award, construed in light of the reasons for decision of Hingley C, does not cover disciplinary matters in its dispute resolution clause, a clause in materially identical terms in the 2002 Agreement can conceivably embrace disciplinary matters provided that the relevant context permits such a construction. 30 On the other hand it may be considered that the adoption in the 2002 Agreement of a dispute resolution clause in materially identical terms to that contained in the 1993 Award after its variation in 2000, may tend to show that the parties intended to insert a clause under the Agreement having identical effect as the counterpart clause in the Award. 31 Ultimately the Court does not consider the competing considerations in the three paragraphs set out above to be decisive. The critical contextual issues for the Court to give prime consideration are the following: · disciplinary matters have traditionally been the sole preserve of the MFB Act and the Regulations. The parties should not be presumed to have lightly, in the nature of a side wind, displaced that legislative regime, unless there is some indication of a contrary intention. · there is no admissible evidence before the Court concerning why the parties chose to agree to cl 12 in the form it takes in either the 1999 Agreement or the 2002 Agreement. However, the clause, on its face, appears to be one more suited to the resolution of day to day problems occurring at the workplace concerning either the conditions under which work is performed or the manner in which it is performed. See for example the injunction in cl 12.9 that work continue in accordance with "the existing situations or practice", until the steps in the clause are taken. Equally it is unlikely that the parties considered, when making the 2002 Agreement, that an officer would not be able to be suspended pending the determination of a charge, but would be required to continue working. · the steps provided for in cl 12 for resolution of the particular "dispute", if all are required, may unreasonably delay the resolution of an issue which could be critical to the maintenance of discipline amongst officers of the Board. · the MFB Act and the Regulations dealing with discipline do not sit comfortably with cl 12 covering disciplinary matters. Clause 12 processes may unduly interfere with the smooth running of disciplinary proceedings up to and including any appeal to the Appeals Commission. Further it would be possible for the cl 12 process to seek to be invoked to overturn proceedings under the State provisions or fragment them by disputes about disciplinary issues being raised during the course of disciplinary proceedings under the State regime. Simply stated, the existence of the State disciplinary regime does not sit comfortably with a literal interpretation of cl 12 in its application to disciplinary matters. It is unlikely that the parties to the 2002 Agreement would have intended that result in the absence of the repeal of the relevant provisions of the MFB Act and the Regulations. · Cl 13 of the 2002 Agreement deals with "adverse reports". It deals with the procedure for placing an adverse report about an employee on his or her personnel record. It states at cl 13.2 that such a report may allege "a serious breach of discipline". If more was intended to be dealt with in the 2002 Agreement on disciplinary matters one might have expected some greater development of the topic by the authors of cl 13. · difficult issues of fact may arise concerning whether the exemption for health and safety issues could legitimately cover disciplinary matters given that certain disciplinary issues may relate to questions of safety. · The identity of any "other body or court" in cl 12.7 is uncertain and depends on whether there is such a "body or court" with jurisdiction to deal with such a matter. All this must be considered in the context of a ready-made process being available under the MFB Act and Regulations. 32 Consequently, having regard to the foregoing the Court is of the view that the preferable construction of cl 12 of the 2002 Agreement is that it was not intended to deal with issues of discipline which are dealt with by the disciplinary provisions of the MFB Act and the Regulations. I am fortified in that view by Goldberg J's observation in his interlocutory judgment in this proceeding at [54], 482 that: "It is also strongly arguable that the procedure for settlement found in cl 12 is ill served to a situation of, and not congruent with, the laying and hearing of charges for breach of disciplinary provisions." 33 I am also fortified in my view of the proper interpretation of cl 12 by the decision of Simmonds C in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board Print PR 030271, Australian Industrial Relations Commission, 10 April 2003 at [19]. Where Simmonds C said: "I am satisfied that the disciplinary procedure prescribed in the MFB Act is not, in its terms, displaced by the terms of the Agreement. In particular, I do not agree that clause 12 of the Agreement enables an employee to raise a dispute under that clause about a decision to charge an employee or about any action taken under that procedure. My reasons for reaching that decision are: · There is no express inclusion of discipline as such within the range of matters covered by clause 12 of the Agreement. As the matter is dealt with in some detail in the legislation, I consider it would require such an express inclusion. Otherwise, it would be open to the Board, by agreement with the UFU, to avoid the requirements of the very legislation that constitutes it. · Apart from the reference to adverse reports, there is nothing else within the Agreement dealing with the discipline process. This is in contrast to the many other matters, some of specific detail, dealt with by the Agreement. · The history of award and agreement regulation is one that supports the view that the discipline process, from the point of a formal charge onward, is excluded. The fact that, in the course of negotiations, the Board proposed to include a clause formally excluding discipline, and that was not agreed to, does not lead to an inference that it is not excluded…." 34 It is open to the Union to raise general issues about disciplinary matters which do not relate to any particular charge against any particular officer. Such general concerns may be addressed and dealt with under cl 9 of the 2002 Agreement: see [20] to [23] in the decision of Simmonds C. The binding arbitration point 35 Dr Jessup submitted that it was not open to the Union to commence this proceeding in the Court given that the decision of Simmonds C constitutes a binding decision in a private arbitration under cl 12.7 of the 2002 Certified Agreement, if the agreement is construed as being applicable to the disciplinary matters raised by Mr Marshall. Given that the Court considers (with the qualification as to the role of cl 9) that cl 12 does not apply to disciplinary matters of the kind which Mr Marshall sought to ventilate with Mr Bertolus in February and March 2003, it is unnecessary for the Court to deal with the binding arbitration point. Disposition 36 The application, insofar as it relates to an alleged breach of cl 12.6 of the 2002 Certified Agreement, must be dismissed because Mr Bertolus rightly considered that he was not obliged to convene a meeting to deal with the matters raised with him by Mr Marshall. 37 It follows that no breach of cl 12.7 has been established because the Federal Commission was not entitled to deal with the alleged disputes raised by Mr Marshall, save as to cl 9 being invoked in respect of the general dispute. However, even if a breach of cl 12.6 had been established, it would have been difficult to make out a breach of cl 12.7 because ultimately the alleged disputes were referred to the Federal Commission and dealt with by it, albeit with that body declining jurisdiction to proceed under cl 12. Order 38 For the foregoing reasons the order of the Court is that the application be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 15 October 2004 Counsel for the Applicants: Mr P Rozen Solicitor for the Applicants: Slater & Gordon Counsel for the Respondent: Dr C Jessup QC with Mr P Wheelahan Solicitor for the Respondent: Freehills Date of Hearing: 11, and 14 October 2004 Date of Judgment: 14 October 2004