[2016] FWC 5028 [Note: Appeals pursuant to s.604 (C2016/5027, C2016/5571) were lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 10 November 2016 [[2016] FWCFB 8120] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739—Dispute resolution

Metropolitan Fire and Emergency Services Board
v
Garth Duggan and the United Firefighters’ Union of Australia
(C2016/3853)

COMMISSIONER WILSON

MELBOURNE, 3 AUGUST 2016

Application to deal with a dispute.

INTRODUCTION

[1] This decision concerns an application by the Metropolitan Fire and Emergency Services Board (MFB) for the Fair Work Commission to deal with a dispute pursuant to the provisions of s.739 of the Fair Work Act 2009 (the Act). The MFB’s application nominates both Mr Duggan and the United Firefighters’ Union of Australia as the respondents to the dispute (referred to jointly as the Respondents). It is argued that jurisdiction for the Commission to deal with the dispute arises from the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 1 (the Agreement).

[2] In short, the dispute concerns the question of whether there is any impediment arising from the Agreement to the MFB implementing a decision it has made to terminate the employment of a recruit firefighter, Garth Duggan, who commenced employment on 9 February 2016. 2 When the MFB notified him of its intention to terminate his employment, he was within a three month probationary period of employment, with that period being a term of his contract of employment, as well as being referred to within the Metropolitan Fire Brigades Act 1958 (Vic) (the MFB Act).3

[3] The Agreement both provides for the termination of employment as well as obligations relating to consultation by the MFB over implementation of change in matters pertaining to the employment relationship, as well as procedures for the resolution of disputes which enables the Commission to deal with certain disputes in defined circumstances.

[4] Both parties sought representation in the proceedings by a lawyer, relying on the criteria within s.596(2)(a) of the Act, insofar as it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I was satisfied that this was the case, and Mr P Wheelahan appeared for the Applicant and Mr M Pearce SC and Mr D Langmead appeared for the Respondents.

LEGISLATION

[5] The MFB’s application to the Commission is made pursuant to s.739 of the Act which provides jurisdiction to deal with disputes in certain circumstances set out within the section and s.738, namely where a “term” of a modern award, an agreement or a contract or Public Service Determination allows. Arbitration of a dispute may only be where the parties have agreed for that to occur, in accordance with the term. The Commission’s powers to deal with a dispute under the section are constrained in the ways set out in the section, and most particularly in that which is set out in sub-section (5), such that the Commission may not make a decision that is inconsistent with the Act or a fair work instrument applicable to the parties.

[6] Sections 738 and 739 provide;

RELEVANT AGREEMENT TERMS

[7] The case made by the Applicant, the MFB, is that Mr Duggan is an unsuitable employee for ongoing employment past the end of a probationary period that applied to him, with its belief about his unsuitability being established within the probationary period for the reasons set out below. The MFB argues that it complied with all relevant provisions of the Agreement when it made its decision to terminate his employment and that there was neither an obligation to consult with him or his union about its decision or any aspect of the decision-making process, and that there was no impediment to his dismissal within the Agreement’s termination of employment clauses.

[8] In contrast, the Respondents, the UFU and Mr Duggan, put forward that the MFB has failed to follow the proper processes of the Agreement insofar as it provides processes for consultation and termination of employment. In particular, the Respondents argue that the MFB is not entitled to terminate for the reasons it has chosen because it failed to consult with them about matters which the Respondents say are unilateral alterations to the MFB Recruitment Police Criminal History Check Policy. That document, referred to from this point as the Police Check Policy, is shown as an attachment to this decision. The Respondents argue that the MFB was obliged to consult over any changes to the policy, for reason of the Agreement’s consultation provisions.

[9] Termination of employment is dealt with in clause 27 of the Agreement, which is in the following terms;

[10] Despite clause 27.1 providing that termination of employment may not occur until the “Employee Code of Conduct” has been complied with, with the formation of the Code being prescribed in clause 26.3, there is no such code presently in existence. 4

[11] Consultation and dispute resolution are dealt with in several clauses and in particular clauses 13 and 15. Clause 15, which establishes the requirement for consultation is in the following terms;

[12] While the introduction of change clause requires there to be consultation in accordance with clause 13, not all of the clause is relevant to this decision. The clause provides the following relevant terms;

[13] Clause 19 sets out a detailed procedure for the resolution of disputes and is in the following terms;

RELEVANT FACTUAL BACKGROUND

[14] Evidence in this matter was provided for the Applicant by Gregory Leach, the MFB’s Deputy Chief Officer and Executive Director of Learning and Development. Evidence provided on behalf of the Respondents included that from Mr Duggan himself, as well as Allan Morton, an MFB Senior Station Officer with responsibility for the management of major fire stations within the metropolitan district as well as project team responsibility for the MFB’s Emergency Medical Response (EMR) program. In addition to this evidence, each party has provided written and oral submissions, which include numerous documents. I have had regard to all of this material in preparing my decision on this matter.

[15] Mr Duggan began his application for employment with the MFB in 2013 5 and was offered employment in a letter of employment dated 23 December 2015.6 The MFB refers to the letter being an employment agreement, with it providing for a three-month probation period commencing from the date on which employment commenced, being Tuesday, 9 February 2016. It was specified within the letter of employment that the conditions of employment included the Agreement, the MFB Act and “MFB policies and procedures (i.e. the MFB Workplace Behaviour Policy)”. The same correspondence advised that “Emergency Medical Response is a core function of the MFB and accordingly will form part of the Recruit Firefighter training and continuation training program.”7

[16] During the recruitment process, Mr Duggan was asked to obtain and provide to the MFB a National Police Certificate, which he did. The certificate he provided was sourced from Victoria Police, is dated 16 September 2015 and advises that “[a]t the date of issue there are no disclosable court outcomes recorded”. The certificate states that the reason for the check was for “Employment – Emergency Services: Firefighter” and also provides this disclaimer;

[17] Mr Leach’s evidence about the recruitment process also states that;

[18] The employment offer came after Mr Duggan had provided to the MFB the National Police Certificate. After commencing employment Mr Duggan was the subject of adverse findings against him by the New South Wales Civil and Administrative Tribunal (NCAT), and those findings became known to his work colleagues.

[19] The NCAT decision 10 concerns Mr Duggan’s practice as an osteopath in New South Wales. It is uncontroversial that the decision relates to the person who is the subject of these proceedings and now employed by the MFB. Relevantly, the NCAT decision records that;

The complaint that was the subject of the decision was lodged with the Tribunal on 9 June 2015 and was the subject of directions hearings on 15 and 29 January 2016. 13

Mr Duggan was first registered as an osteopath in 2005 and he was the subject of complaints as follows;

As a consequence the Tribunal’s Order included that Mr Duggan; 19

[20] The HCCC complaints to NCAT were started in June 2015, with evidence being served on Mr Duggan in August 2015 and him responding in August, September and October 2015, including by initiating his application to terminate the proceedings, and providing oral submissions, 20 however, Mr Duggan submitted to the MFB that he was informed of the proceedings “in late 2015”,21 which is improbable. He was plainly aware of the proceedings from mid-2015.

[21] In the course of the NCAT directions hearings in January 2016, Mr Duggan indicated to the Tribunal that he would neither defend the proceedings nor appear before the Tribunal, however NCAT record that Mr Duggan did not concede the complaints or any of the particulars. 22 The NCAT proceedings took place in Mr Duggan’s absence on 18 and 19 February 2016, after he had commenced employment with the MFB.

[22] The NCAT decision was published on 17 March 2016. Mr Duggan became aware of the decision within a week of it being published, 23 but chose not to inform the MFB either of the proceedings or of the decision. The MFB’s evidence is that Mr Duggan did not bring the NCAT decision to the MFB’s attention when it was handed down on 17 March 2016, or at all.24 Instead, the NCAT decision became known to the MFB on or about 29 April 201625 when, on Mr Leach’s evidence, “a group of recruit firefighters who were undertaking the recruit course alongside Mr Duggan notified their Recruit Course Coordinator, Arran Dixon, that the recruits had conducted an internet search of Mr Duggan and discovered that he had recently been the subject of a decision [of NCAT]”26. Following the decision being brought to Mr Dixon’s attention, Mr Leach believes (and Mr Duggan does not dispute) that “Trent Curtin (Assistant Chief Fire Officer Director Operational Training, MFB) contacted David Hamilton (UFU President and MFB Senior Station Officer) by phone and raised the issue of the NCAT Decision with him.”27

[23] There is no evidence that at any time prior to 29 April 2016, any person within the MFB sought further information from Mr Duggan about his response that he had both been arrested and charged on a criminal matter since turning 18 years of age.

[24] The matter then became the subject of a dispute between the parties, including a formal dispute for the purposes of the Agreement notified to the MFB by the UFU on Mr Duggan’s behalf. The terms of the dispute as notified by the UFU included the following to Mr Dixon over the name of the UFU’s Secretary, Mr Marshall;

[25] On 5 May 2016 Mr Duggan was sent correspondence from Mr Leach, which informed him that the MFB considered it was not appropriate to continue the probationary period of his probationary employment beyond the date on which was it scheduled to expire, namely 9 May 2016, and that Mr Duggan was to be stood down and required not to report for duty until further notice. The correspondence set out the grounds upon which the MFB based its preliminary view that it was not appropriate to continue with his employment beyond the expiry of his probationary period on Monday, 9 May 2016, which included; 29

[26] Mr Duggan was also requested through the correspondence to provide a written response to the MFB about its beliefs, which he did on 8 May 2016. The response consists of a short covering email, together with a more extensive submission. The submission; 30

provides that Mr Duggan informed NCAT that he did not have the financial resources to contest the NCAT proceedings and that he “would not be making submissions and would consent to any orders the Tribunal made”, but “did so with no admission of wrongdoing or any impropriety”;

put forward in relation to his new employment, that;

[27] The submission to the MFB also records that Mr Duggan applied to NCAT for the proceeding not to take place, as there was no public utility for the proceedings given he sought to have his name removed from the register and had given the undertakings referred to. The submission claims that his application “was supported by the Australian Osteopathic Association” and notes that the Tribunal refused his application. 33

[28] The submission criticises NCAT’s decision and how it came to its conclusions, arguing;

[29] Further information was sought by Mr Leach from Mr Duggan on 9 May 2016 because an electronic file he had provided could not be opened, with Mr Duggan responding on the same day. The further response put forward material about the misconduct complaints that can only be regarded as a defence of his professional conduct, as well as a document from a lecturer in osteopathy supporting some of Mr Duggan’s contentions.

[30] On 6 May 2016, Mr Duggan made an application to NCAT to set aside the original decision. That application has progressed to the point of a directions hearing on 8 May 2016 in which a hearing was set down for 29 September 2016, together with directions for the filing of any amended application, submissions and witness evidence. 35

[31] By 24 May 2016 the MFB had decided that Mr Duggan’s employment should be terminated and forwarded him a letter to that effect, and Mr Leach telephoned Mr Duggan about the decision and his reasons.

[32] Successive exchanges between the UFU and the MFB failed to resolve the matter.

[33] Since the UFU concedes that the dispute is properly before the Commission, 36 it is unnecessary to consider in detail the process by which the dispute has been brought to the Commission. While that is the case, the MFB plainly considered at the time that it wrote to Mr Duggan advising of its intention to dismiss him that it was in dispute with the UFU and Mr Duggan about its intentions. In that correspondence to Mr Duggan, Mr Leach refers to there being a dispute and the commencement of proceedings in the Fair Work Commission to resolve it. The correspondence to Mr Duggan dated 24 May 2016 is in the following terms;

THE APPLICANT’S DRAFT DETERMINATION

[34] The MFB’s Draft Determination for these proceedings, filed in accordance with directions from the Commission, is in the following terms;

[35] For the purposes of context, it should be noted that the full name of the MFB, as used in the Draft Determination, is the “Metropolitan Fire and Emergency Services Board”, which may be abbreviated in some documents to “MFESB”.

CONSIDERATION

[36] The nature of the alleged dispute and the findings sought by the Applicant require consideration of whether the Commission has jurisdiction to deal with the matter and, if so, the correct approach to be taken in relation to deciding upon the relief sought by the MFB.

Jurisdiction to deal with the dispute and its characterisation

[37] Clause 19 of the Agreement sets out the dispute resolution procedure. The scope of the clause is expansive, with the procedure applying to “all matters arising under this agreement” with the clause then specifically identifying that such category includes “all matters for which express provision is made in this agreement”, “all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement” and “all matters pertaining to the relationship between the MFESB and UFU”.

[38] Clause 19.2 then sets out a procedure which “shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance”. The last element of the procedure allows for disputes to be brought forward to the Fair Work Commission provided the dispute is not settled through progression through earlier steps in the disputes procedure, in which case the Commission “may utilise all its powers in conciliation and arbitration to settle the dispute” (cl. 19.2.6).

[39] As referred to earlier, the parties agree the MFB’s application is properly before the Commission.

[40] The MFB, through its application form and submissions, advance that the dispute has been resolved and that there has been no failure by the MFB to follow any process mandated under the Agreement in relation to Mr Duggan’s employment. Further, the MFB have put that, because that is the case, and consistent with the Agreement’s dispute resolution, termination of employment and consultation clauses, the decision to terminate Mr Duggan’s employment can now be implemented. In effect then, the MFB characterises the dispute involving the Commission’s utilisation of “all its powers in conciliation and arbitration to settle the dispute” (provided for within clause 19.2.6, step 5) as being a determination pursuant to clause 27.1.3 that “any dispute notified by the employee or the union has been resolved”.

[41] The MFB’s Draft Determination for consideration by the Commission is in terms similar to the content of the original application form.

[42] The dispute as notified by the UFU to the MFB, initially on 30 April 2016 and reiterated in its formal correspondence on 10 May 2016, is about a “failure to undertake the proper process in the enterprise agreement, consultation, change, policy and determination”. 39

[43] On the basis of the foregoing, and having regard to the contentions of both parties, as well as the MFB’s Draft Determination, I consider that the proper characterisation of the dispute before me is as set out below;

The Commission’s approach to dealing with the dispute

[44] When the Commission deals with disputes under s.739, it does not undertake an exercise of judicial power but instead exercises a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third-party. The resultant arbitrator’s award is not binding of its own force, but instead its effect depends on the law which operates with respect to it. 40 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.41

[45] A useful summary of the applicable considerations in matters of this kind, and of the powers to be exercised by the Commission and their boundaries, was articulated by Commissioner Saunders in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd; 42

[46] The same matter considered the Commission’s role as a private arbitrator;

[47] In Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 57 decided shortly after Commissioner Saunders’ analysis in CFMEU v Mt Arthur Coal, the Full Court of the Federal Court of Australia considered in detail the Commission’s role under s.739. The Full Court’s judgment in that matter held the following matters of relevance;

[48] In relation to the matter of determination of the meaning of the disputed aspects of the Agreement it is noted that such task requires construction of the words of the instrument. In relation to that task, the Full Bench laid out in AMIEU v Golden Cockerel Pty Ltd 60 (Golden Cockerel) the principles for interpretation of an enterprise agreement. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way;

Has the MFB followed the processes mandated by the Agreement?

[49] In accordance with the characterisation of the dispute set out earlier in this decision, it is first necessary to consider whether the MFB has followed the processes mandated by the Agreement in relation to its intention to dismiss Mr Duggan.

[50] The nature of the evidence requires consideration of whether the MFB has complied with the mandated processes in respect of a desired change to the Police Check Policy and whether it has followed its obligations in relation to Mr Duggan, being on “probation” and a “probationary employee”.

The MFB’s application of its Police Check Policy

[51] The argument is made by the MFB that its decision to dismiss Mr Duggan is consistent with the Agreement and, moreover, it maintains that the reasons for doing so within his period of probation are those set out in its “Termination of employment” letter to him dated 24 May 2016, referred to above. That letter includes the views that his role as a firefighter meant that he “would be in a position of power over vulnerable members of the public”, that NCAT had found Mr Duggan “guilty” of professional misconduct with a consequential prohibition from being registered as an osteopath for 6 years and had “expressed concern about any one-on-one assessment or treatment undertaken by you ‘in any health field requiring a consent process’. (Health Care Complaints Commission v Duggan (No.2) paragraph 113).” The correspondence concluded;

[52] The MFB submits that it has made no change to the Policy and nor has there been any breach. Further, because there was no change to the Policy there was no need to consult with the UFU under the Agreement with respect to any change to the Policy. 64 The MFB also submits that since there is no process mandated under the Agreement that has not been complied with, the dispute must come to an end and be resolved by such a finding leaving it free to implement its decision to terminate Mr Duggan’s employment.65

[53] Counter to these arguments, the Respondents submit that the MFB was not entitled to terminate for its articulated reasons because to do so is contrary to the Police Check Policy. 66

[54] The Respondents also contend the MFB has unilaterally amended its Police Check Policy by introducing a new and additional criterion that adverse findings by an occupational tribunal can render a person unsuitable for employment as a firefighter. The MFB contends that such is not the case and that there has been no such amendment to its policy.

[55] The Policy, set out in the attachment to this Decision, requires an employment applicant to provide a National Police Certificate, which is used to assess compliance with the MFB’s Prior Offences criteria. Candidates are informed through the Policy that “where the National Police Certificate shows a record of found guilty/charge/s proven this may be deemed to be a noncompliance with MFB's Prior Offences criteria. This is irrespective of whether or not a conviction has been recorded”. The criteria themselves are set out in the Policy in the following manner;

[56] Mr Duggan’s history does not fit the “permanent disqualification” criteria; he has not been found guilty or had a charge proven on any of the listed matters. His conduct also does not fit any of the “interim or temporary disqualification” criteria; again not having been found guilty or had a charge proven on any of the listed matters, and there is no evidence before me of a current intervention order of the listed type, and there is no evidence of an outstanding warrant, or that he is currently under investigation or has been charged and awaiting trial on any criminal proceedings. While the “other matters” sub-criterion refers to a person subject to “court orders” being someone who may be subject to an interim or temporary disqualification, the MFB did not argue that the NCAT orders are of that type.

[57] The Police Check Policy records the MFB retains “a discretionary power to consider applicants with all other offence histories”. In context, that discretion is a power for the MFB to say that even though a candidate’s history as supplied in accordance with the Policy does not strictly lead to permanent, interim or temporary disqualification, there may be some other factor within the information disclosed that causes the MFB not to offer employment. Within the context of the MFB’s status as a public authority, and the work of firefighters entering homes and businesses to fight fires, and to render emergency medical assistance to members of the community, such is entirely proper and logical. The Police Check Policy fully allows a discretion to be exercised as it stands, and no criticism of the type advanced by the Respondents could attach to such an exercise. To put it another way, a decision not to employ a person because of their personal conduct years ago, or because of their professional misconduct in an earlier career, would likely be consistent with the Policy. There would be no need to consult over a change to the Policy in such a case, because there would not have been any change, intended or actual, to the Policy.

[58] Practically speaking, exercise of this discretion would most likely be on the basis of information obtained through the MFB’s pre-employment inquiry processes. Normally one would expect those processes to comprise interviews, reference checking, and follow-up questions to any documents received, including an application form enquiring about arrest and charge history, or a National Police Certificate.

[59] Plainly though in Mr Duggan’s case, insufficient pre-employment inquiry was undertaken, even though it probably should have been because he disclosed that he had, since turning 18 years of age, been arrested and charged with committing a crime. When the National Police Certificate returned with the report of “no disclosable court outcomes recorded”, the inconsistency with his other answers should have been noticed, and the questions “why?” and “what does this mean?” or “what were you arrested or charged over?” should have been asked. That they were not asked can only be regarded as a significant and remarkable failure within the MFB’s human resource management systems.

[60] These questions, and a decision to exclude Mr Duggan from further consideration for employment, were entirely open to the MFB under the Agreement, and inquiries to elicit further information or the making of a decision to preclude him from employment would have been entirely consistent with the Agreement and the Police Check Policy. No criticism under the Agreement could attach to the MFB for seeking information of this type, or a consequential decision not to employ him. By undertaking insufficient enquiries into Mr Duggan’s suitability as a firefighter, the MFB offered him employment, but essentially now wants to find a way to end the contract into which it has entered.

[61] The evidence does not lead to a finding that the MFB sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion that adverse findings by an occupational tribunal can render a person unsuitable for employment as a firefighter. Instead, the evidence leads to findings that Mr Duggan was asked to supply information consistent with the Policy, which he did; that the MFB considered the information he provided and, notwithstanding what it received, made no election to exercise its discretion not to employ Mr Duggan.

[62] Instead, the evidence leads to a finding that, when the MFB characterises Mr Duggan as not being “a person in which it can have the level of trust and confidence that is required of a firefighter” and that he should thereby be dismissed, 68 it seeks to dismiss him because information it only learned of after he commenced employment calls into question his ongoing employment beyond the probation period.

The MFB’s obligations in relation to “probation” and “probationary employee”

[63] While the MFB does not say to Mr Duggan in its “Termination of employment” letter that he has been terminated within his probationary period or that its termination of his employment is for reason of a failure to pass his probation, it refers to the expiry of his probationary period with the MFB as being part of its consideration in its preliminary views communicated to him by letter dated 5 May 2016. That letter, entitled “Expiry of your probation period with the MFB” confirmed that “the MFB had formed the preliminary view that it is not appropriate for it to continue your employment beyond the expiry of your probationary period on Monday 9 May 2016”. 69

[64] The evidence leaves little doubt that the MFB proposes Mr Duggan be dismissed as a probationary employee because the MFB believes it is entitled to do so. There is also little doubt that, despite the MFB’s hesitation on the matter, that it wishes to do so because it considers Mr Duggan’s professional misconduct as an osteopath to be an unacceptable background for a firefighter.

[65] Counsel for the MFB avoided characterising Mr Duggan’s failings that will lead to his dismissal as being conduct that arose after he was employed, with this exchange with Counsel for the MFB in the course of the hearing;

[66] In the absence of an affirmative response by Counsel to the question posed by me about Mr Duggan’s conduct after he was employed, the Commission could be expected to form the view that the MFB is not critical of him for his failure to bring the NCAT findings to their attention once they became known to him. However, after viewing the evidence in totality, and especially that of Mr Leach, the conclusion that such criticism was present is unavoidable.

[67] On the one hand, Mr Duggan disclosed prior to being offered employment that he had both been arrested and charged for criminal offences since turning 18 years of age and, in response to the MFB’s Police Check Policy, provided a National Police Certificate in standard form and over which there is no dispute that it is other than factually correct. On the other hand, Mr Leach told Mr Duggan at the time that he informed him he was to be dismissed that continued employment of someone such as him would not be a “good look”, with this response in the course of the Applicant’s examination-in-chief;

[68] As developed by the MFB through the mechanism of Mr Leach’s evidence, the ultimate question for consideration in this dispute is not whether the MFB complied with the Agreement by complying with the Police Check Policy, but whether the MFB has good reason to dismiss Mr Duggan because of things it learned about him after he was employed, or because of his conduct after he was employed. The dispute as it has evolved before the Commission therefore involves a consideration of whether dismissal for either reason is permissible because of what the Agreement has to say on the subject of “probation” or “probationary employee” or because of the ordinary and grammatical meaning of the terms.

[69] While it could be argued that the NCAT decision has no adverse impact on Mr Duggan’s employment relationship with the MFB, I consider it does for reasons articulated below, including as to whether he can perform the EMR function while employed by the MFB. However, while that consideration may be open to debate, Mr Duggan is not able to avoid criticism of his conduct after being employed because he did not inform the MFB of the NCAT decision and waited for the MFB to raise it with him. Failing to inform the MFB deprived it of the opportunity to consider and discuss the matter before it became widely known; to put in place procedures to deal with the concerns of other recruits; and to carefully consider whether the orders may impact on the MFB’s EMR work and what alternatives may exist, if it did impact.

[70] Jurisdiction for the Commission to deal with a dispute about a change in the MFB’s approach to the terms “probation” or “probationary employee” is given by clause 19.1.2 for reason that both the terms and any change to how they are implemented are matters pertaining to the employment relationship.

[71] The dispute as it has evolved before me relates to whether or not Mr Duggan may be dismissed, as a probationary employee, for reason that the question of his dismissal is a matter pertaining to the employment relationship. This conclusion is drawn irrespective of the meaning of the terms within the Agreement of “probation” or “probationary employee”. Arguably, the dispute extends not just to the first and most obvious question of whether he may be dismissed, since that is itself a dispute about “matters pertaining to the employment relationship” (cl. 19.1.2), but also to the question of whether those reasons themselves amount to a “change in matters pertaining to employment relationship” (cl. 15). In relation to consultation over proposed changes to the employment relationship, the Full Bench has held that it is not the changes themselves which must pertain the employment relationship, but the matters the subject of the change. 72

[72] The term “probation” or “probationary” is used in only one place in the Agreement and that is in clause 69.1.1 which sets out the classifications of the employees working under the Agreement. In the definition part of the clause, the term “recruit firefighter” is given this meaning;

[73] Consistent with the Commission’s authorities in respect of the construction of enterprise agreements, 73 I consider that the term “probationary employee” as it is used within the Agreement is not one that contains an ambiguity. The Agreement intends for the term to have its ordinary and grammatical meaning. In forming that view I have not had regard to the provisions of the Acts Interpretation Act 1901 (Cth). While I have had regard to whether there is any evidence of surrounding circumstances to assist in the formation of that view, I find that there is not. There is no admissible evidence before the Commission regarding how the term is to be construed.

[74] The context within which the Agreement was formed includes the provision of the MFB Act, which does not assist the task of construction for the reason it also does not define the term “probation”. The MFB have confirmed in supplementary submissions to the Commission, following a question put by me, that the relevant explanatory memorandum sheds no light on the Parliament’s intention when the reference to probation in s.25B was introduced. That section provides that “[e]very appointment or promotion of a member of the operational staff is to be on 3 months' probation”.

[75] The terms “probation” or “probationary employee” are, of course, commonly used terms in relation to employment, which have been the subject of consideration for their ordinary and grammatical meaning. There is nothing before me that would suggest that the parties, when framing the Agreement, intended for the terms “probation” or “probationary employee” to have anything other than their ordinary and grammatical meanings.

[76] Those meanings, invariably, are to do with an initial and limited-term assessment of an individual’s suitability for ongoing employment carried out at the start of employment;

[77] It is apparent from this analysis that “probation” or engagement as a “probationary employee” is an examination of how the employee presents themselves once employment has commenced, being “a time of testing or trial”, “a process of putting to proof ...investigation and examination”. After training an assessment can be made of aptitude or capacity. If a person has not been satisfactory in their position, “the employment relationship can be easily terminated or the probationary period can be extended”. Nowhere, does it seem, do the well accepted meanings turn to the consequences of uncovering after employment some fact from things prior to the commencement of employment. Instead, those matters are likely to be protected through the ability to dismiss for serious misconduct.

[78] In Mr Duggan’s case, the matters which are the subject of HCCC complaints to the NCAT occurred before he was offered employment and were the subject of tribunal sanction in March 2016, after employment had commenced with the MFB. He evidently truthfully answered the questions that were put to him in the recruitment process and complied with the Police Check Policy. However, Mr Duggan did not let the MFB know about the NCAT decision. His evidence on the subject was brief; merely that “I wasn't aware that there was any requirement for that”. 81 Mr Duggan was not entirely candid with the MFB and cannot avoid criticism for his actions because he did not come forward to the MFB about the NCAT decision once he learned of it. That fact diminishes Mr Duggan’s ability to make a claim of exemplary conduct after being employed.

[79] After he was sent the MFB’s 5 May 2016 correspondence, “Expiry of your probation period with the MFB”, Mr Duggan responded in writing to the invitation to address the issues set out within the correspondence. The response included noting the misconduct pertained to the period November 2009 to February 2010; that the trial in the District Court was in September 2012, with Mr Duggan being subjected to cross-examination and that “[s]ome of the charges were withdrawn and Mr Duggan was acquitted on all remaining charges”. His response also made these submissions;

[80] After being informed in 2015 that the NSW Health Care Complaints Commission was to bring proceedings in NCAT;

[81] Mr Duggan’s explanation for not participating in the NCAT proceedings in February 2016 is that the hearing was during his recruit training and he had received legal advice that it would have no impact on his position as a firefighter. 84 He also lacked the financial means to contest the complaints.85

[82] By seeking to terminate Mr Duggan’s employment within his probationary period of employment for events that occurred prior to employment, and which came to its notice after employment had commenced, and which were not reported by Victoria Police in the National Police Certificate it issued, the MFB seeks to depart from the well accepted meanings of “probation” and “probationary employee”. Further, by making no substantial complaint of misconduct on Mr Duggan’s part about not informing them of the NCAT findings, the MFB makes no effort to connect that conduct with his suitability as an ongoing employee.

[83] A desire on the part of the MFB to depart from the accepted meaning of probation is a matter pertaining to the employment relationship. A matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, 86 and, in relation to whether consultation is required, it is not the changes themselves which must pertain, but the matters the subject of the change.87 In this case, a desire to dismiss an employee during probation for conduct prior to employment and discovered after employment commenced is a matter over which clauses 15 and 13 of the Agreement will require consultation to be undertaken prior to any decision.

[84] On the basis of the foregoing analysis, I would answer the first element of the dispute as characterised by me in the following way;

Whether the dispute is resolved; Whether Mr Duggan’s employment may be terminated

[85] The second and third elements of the dispute as characterised by me are;

[86] I consider that the dispute is not resolved, with there being a need either for consultation over changes to the MFB’s use of “probation” and “probationary employee” or, if that is considered not appropriate, for appropriate action to deal with Mr Duggan’s conduct after employment commenced.

[87] A threshold issue is whether Mr Duggan’s conduct, at any stage, warrants dismissal. I consider not. Dismissal at this time, for reason of him being under “probation” or a “probationary employee”, would not be consistent with the well accepted meanings of the terms. While perhaps he should not have been employed in the first place, no warrant exists from his pre-employment conduct to now dismiss him. Mr Duggan’s conduct after employment commenced, while not to be condoned, is not sufficient to dismiss him, for the reason it does not undermine his suitability for ongoing employment or the viability of continuing the employment relationship.

[88] In some circumstances, such as where conduct prior to employment was hidden or lied about and thereby amounted to serious misconduct, the MFB would be justified in summarily dismissing an employee, relying on the provisions of the Agreement’s clause 27.2.5, which enables the MFB to dismiss “for conduct that justifies instant dismissal, including inefficiency, neglect of duty or misconduct”.

[89] The MFB has not argued to the Commission that Mr Duggan’s conduct after being employed justifies termination of his probationary employment, although it does say that it “is concerned with its right to determine that an employee is not suitable to continue in his employment beyond his 3 month probationary period.” 88 This situation avoids making criticism of the failure of Mr Duggan to bring to the MFB’s attention the NCAT findings and Order.

[90] Objectively considered, Mr Duggan’s conduct since being employed by the MFB is not such that it would cause him to fail the well accepted view of probationary employment, being a “period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment”, and the MFB has not argued that his post-employment conduct is of that nature. In addition, while Mr Duggan’s failure to notify the MFB of the NCAT decision is to be deprecated, and is not fully answered by his candour after being approached on the subject by the MFB, his failure is unlikely to be either “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” or “conduct that causes serious and imminent risk to … the reputation, viability or profitability of the employer’s business” 89, and the MFB does not argue that it is. While Mr Duggan’s conduct in not advising the MFB of the NCAT decision and Orders was not serious misconduct, it was, however, likely misconduct.

[91] It is no answer to those failings for the Respondents to point to the fact that Mr Duggan took no part in the original NCAT proceedings, or that he has now commenced proceedings to overturn the original findings and Order or to point to the contention that the Tribunal was in demonstrable error when it made the findings it did. Until overturned, the decision, its findings and Order are binding on all concerned, and especially Mr Duggan.

[92] All parties are plainly in a difficult position.

[93] The MFB failed to ask pertinent questions of an applicant about matters disclosed to it prior to employment. Those questions, had they been asked, would probably have elicited relevant information. There is hardly a lot of point to asking an applicant for public sector employment whether they have been arrested since turning 18 years of age or charged by the police with committing a crime and then failing to follow-up with the most basic and obvious further question before employment is offered – what were those arrests and charges? Had it asked that question, and the evidence is that the MFB did not, it may well never have employed Mr Duggan. Instead, it appears to have simply accepted the statement of “no disclosable court outcomes recorded” on his National Police Certificate to be the end of the matter. Perhaps that would be so in the majority of cases. However, it now apprehends, no doubt fairly so, that it may not pass the test of public perception about its decision to employ Mr Duggan. 90

[94] Mr Duggan’s work as an osteopath was demonstrably professionally unsound. He was charged with criminal offences in relation to his professional conduct. Some of those charges were dropped in the course of the trial and he was acquitted on others. He was not found guilty of any charge. Even so, the relevant professional licencing tribunal found certain particularised complaints were proven in accordance with the civil standard of proof. Those complaints were laid some years after the original criminal charges but arose from the same events. The consequence of the professional licensing proceedings is that Mr Duggan may not work as an osteopath and may not make application to do so for 6 years. It is not relevant that he contests the NCAT findings and is in the process of appealing them. The findings have been made, and are binding until reversed.

[95] Significantly, Mr Duggan may also not provide any “health service” until such time as a reinstatement order is made by NCAT. The MFB contends that the nature of these sanctions is that Mr Duggan is prevented from providing health services in Victoria. 91 In short, the MFB’s submission is that NCAT orders have effect in Victoria because of Victoria’s participation in a national registration scheme for health practitioners and that, because the MFB’s EMR function is a “health service” for the purposes of relevant Victorian legislation, he may not undertake those duties while employed by the MFB until such time as a reinstatement order is made. The Respondents take a different view, submitting that the order “prevents Mr Duggan from practising as an osteopath in Victoria but does not generally prevent him from providing other “health services” within Victoria”, and that the MFB is neither a “health service” nor an “ambulance service”.92

[96] The Agreement provides for Emergency Medical Response work in detailed provisions within clause 87, which relevantly provides;

[97] While clause 87.4, which defines Priority “O” cases, is not reproduced in this decision, it is noted that the clause provides that “Priority O cases are those event types, which constitute the highest probability of cardiopulmonary arrest. Only a limited subset of Priority “O” calls will be responded to as part of EMR”. The definitions within the clause deal with life-threatening matters such as “Breathing problems, not alert”, various categorisations of “Cardiac or respiratory arrest/death”, convulsions, drowning and electrocution. Plainly the definitions relate to very serious medical emergencies.

[98] The MFB’s submissions on the subject of the effect of the NCAT Orders in Victoria, which is developed through an analysis of applicable legislation as part of a “national scheme”, may be summarised with the following extract;

[99] I accept that submission. The NCAT Orders have application to Mr Duggan in Victoria.

[100] The MFB submits about its EMR work;

[101] While the foregoing passage refers to an “attached MOU”, being a 2005 Memorandum of Understanding between the MFB and Ambulance Victoria, that document is not reproduced in this decision.

[102] I also accept the MFB’s submission that it provides a health service in Victoria. Because of the NCAT prohibition on him from providing any “health service”, Mr Duggan may not perform EMR work for the MFB either now or in the future, unless and until the NCAT order is amended or revoked.

[103] In its 5 May 2016 letter to Mr Duggan, “Expiry of your probation period with the MFB”, it said to him that he does “not meet the standard of personal integrity that is an inherent requirement of an MFB firefighter” and that he is not “able to safely perform the inherent requirement of providing emergency medical assistance to members of the public”. 95 It also characterised EMR as a core function, pointing to the use of that term in Clause 87.1.

[104] The MFB drew oral evidence in these proceedings from Mr Leach about EMR being a core function of firefighters. The MFB’s contentions about EMR being a core function are supported by a reference within Mr Duggan’s 23 December 2015 “Letter of employment”, in which he was informed;

[105] Notwithstanding the function being a core function, clause 87.2 allows some employees, perhaps many employees, to withdraw from performing the work by exercising a choice not to pursue the role. However, on any analysis, that choice is not open-ended, with the choice instead being referable to a reasonably or objectively based situation. It would not be consistent with the clause for a firefighter to simply say they did not want to do the work.

[106] Mr Morton’s evidence about the exercise of choice in clause 87.2 was such that to not pursue the EMR role was a wide discretion for any firefighter to exercise, being voluntary and allowing them to opt out, 97 giving this explanation in examination-in-chief;

[107] In contrast, Mr Leach considered the exercise of choice to not pursue the EMR role as a somewhat limited one, giving this response in cross-examination;

[108] The evidence of the witnesses of both parties on the question of the meaning of the exercise of choice in clause 87.2 is not admissible evidence of the surrounding circumstances. 100 How each of the witnesses thinks the clause was intended to work amounts only to their subjective views about the operation of the Agreement.

[109] The phrase in question that “firefighters may exercise a choice not to pursue this role” is not unqualified and plainly allows a contextual exercise of choice, with the context being that of “firefighters duty of care”. The phrase is within the last sentence of a three sentence clause, with the first sentence making reference to the “the MFESB's duty of care”. Neither of those specific terms, or the more generic “duty of care”, is defined elsewhere within the Agreement. However, when the term “duty of care” is used in other clauses it is with reference to the safety of firefighters (for example, see clauses 34.3, 36.7, 92.10).

[110] Outside of this Agreement, duty of care can have a broader meaning, being an obligation imposed on a person to take reasonable care to ensure that they do not cause another to suffer harm. 101 While that is so, the use of the term throughout the Agreement points to it meaning an obligation on the MFB to take reasonable care to ensure harm is not caused to a firefighter. Support for that proposition is given by the first sentence of the clause, being one of the other places in the Agreement in which the phrase “duty of care” is used, with the recognition being given by the parties to the Agreement that additional assistance may need to be given to firefighters to cope with the demanding role of EMR.

[111] That being so, when it comes to the exercise of a choice not to pursue the EMR role, the Agreement does not set out a process for doing so. It can, however, be expected that any such request or notification by an individual firefighter is through the prism of their exercise of choice for the avoidance of harm of some kind, whether to themselves, a co-worker or to a member of the public. It would be unlikely that an exercise of choice was permissible if it was solely for the purpose of not wanting to do the work. It would unlikely be permissible for the exercise of choice to be indefinite – situations plainly change over time, and harm factors that once existed will often resolve.

[112] While Mr Leach’s evidence of the exercise of choice being a limited one is not admissible evidence in the interpretation of the Agreement, the sentiments he expresses are generally more consistent with the proper interpretation of the clause. That is, the exercise of choice not to pursue the EMR role is limited to a circumstance in which a firefighter apprehends on reasonable grounds and provides reasonable evidence of such that their pursuit of the role will harm either themselves or other firefighters.

[113] Mr Duggan has appealed the NCAT decision, with the hearing set down for 29 September 2016. Senior Counsel for the Respondents submitted that “Mr Duggan is willing to say that at least until his NCAT application is resolved, he will exercise that choice and will not provide any EMR”. 102 The submission says nothing about what happens after the NCAT application is resolved, which is likely informed by the Respondents’ view that the NCAT Orders have no application in Victoria, or if they do, they have no application to the MFB.

[114] In the case of Mr Duggan, being someone now prohibited from providing any health services, which the EMR work demonstrably is, he may not do the work and if he does so in breach of the NCAT Order he risks further punishment. In the circumstances, it is reasonable to find, by advising the MFB that he will not pursue the EMR role, with such hardly being a choice on his part, that Mr Duggan would be doing so to avoid harm, if only to himself. Not being available for EMR work would not be a ground for termination of employment during “probation” or as a “probationary employee”.

[115] While the MFB may not have grounds to dismiss Mr Duggan without consultation because of its wish to depart from the well accepted meaning of “probation” or “probationary employee”, that is not to say there is no sanction available to it under the Agreement.

[116] When Mr Duggan first became aware of the NCAT decision and Order he was aware of the MFB’s EMR role and that it was a “core function” of his new employer. Those things had been said to him when employment was offered in December 2015. It is unlikely he would not have realised that the existence of the Order might be a material consideration for his employer and that he should bring it to their attention.

[117] Mr Duggan learned of the NCAT decision within a week of 17 March 2016 when it was handed down. There is no evidence that he planned on telling the MFB about it. The decision only became known to them because of the curiosity of his colleagues. By the time it came to the MFB’s attention, more than 4 weeks had passed since the NCAT decision became known to Mr Duggan. His application to set aside the NCAT decision and Orders was only made on 6 May 2016.

[118] In his 8 May 2016 submission to the MFB, Mr Duggan put forward that he had earlier told HCCC that “he had no intention to work as an osteopath or in any health care profession”. 103 Within a week of the NCAT decision, Mr Duggan knew he was excluded from providing any health services. If he had not connected that prohibition, operating at least in NSW, to any work that he may perform in Victoria, he reasonably should have. A reasonable Victorian would undoubtedly say that a firefighter’s emergency attendance to their family’s medical emergency was the provision of a health service; and the same bystander would inevitably expect that they be protected from service provision in their State by a person de-registered in another.

[119] The seriousness of the NCAT findings, the breadth of the Orders, and the fact that from the point at which he was offered firefighting employment he was on notice that the MFB’s EMR work was a core function means that Mr Duggan must reasonably be expected to have drawn the decision to the MFB’s attention at the earliest possible opportunity. He failed to do that.

[120] Publication of the decision was inevitably going to be of interest to the MFB, and it was. Its findings had the potential to affect how the MFB saw him, which it did. The decision had the potential to affect the tasks it could assign to him, which it does. Since it highlights deficient recruitment procedures, the decision had the potential to negatively affect the public's confidence in the MFB, and it may. The decision had the potential to cause the community to worry about the suitability of firefighters for EMR work, and it may. For the reason that it went to the future work that Mr Duggan could perform, it had the potential to impact on his working relationships with other employees of the MFB, and it obviously did.

[121] Mr Duggan’s failure to bring the decision to the MFB’s attention was likely an act to conceal the NCAT decision from his new employer. It is unlikely he considered it to have no relevance to his employer whatsoever, or that it would have no impact at all on the employment relationship. This was not a circumstance in which an employee left one industry completely behind when he pursued employment in another industry, completely unrelated to the first. Instead, this is a circumstance in which an employee has been prohibited by a tribunal from providing “any ‘health services’” and is then employed by an employer who makes it a condition of employment that “Emergency Medical Response is a core function”. The connection is both cogent and inescapable.

[122] I consider that Mr Duggan can and should be sanctioned for failing to have brought the decision and Orders to the MFB’s attention. The MFB has that right under the Agreement and the Respondents should accept that sanctions ought be applied.

[123] The Agreement provides procedures for counselling and discipline (clause 26), and termination of employment (clause 27). While each refer to processes within an Employee Code of Conduct that has never been developed, the processes within each clause are not exclusively associated with the Code, and each clause contains rights and obligations that may be used in appropriate cases.

[124] Mr Duggan’s 3 month term of probation ostensibly finished on 9 May 2016. While that is the case, his employment as a probationary employee continues now for reason of the “status quo” provision set out in the dispute resolution procedure. Clause 19.4 provides the following;

[125] With “status quo” meaning “the state in which. The state of affairs existing now or at some given date”, 104 the plain meaning of the term within the Agreement is to put in place, with the instigation of the dispute, a freeze on there being any changes to the employment relationship, so as not to affect the current and future rights and liabilities or any party until the dispute is resolved. Neither Counsel drew my attention to any decided authority on the term. In the proper context of the Agreement, Mr Duggan may not be dismissed, disciplined or disadvantaged during the snap-freeze of the status quo; but then again, neither may he be confirmed as an ongoing employee. He therefore remains a probationary employee until the dispute is resolved.

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

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

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


COMMISSIONER

Appearances:

P J Wheelahan of Counsel for the MFB.

M R Pearce SC, with D C Langmead of Counsel for the Respondents.

Hearing details:

2016.

Melbourne:

July 11.

Final written submissions:

Applicant, 19 July 2016

Respondents, 18 July 2016

ATTACHMENT – MFB POLICE CHECK POLICY

 1   AE881005.

 2   Exhibit MFB 4, Witness Statement of Gregory Leach, [11].

 3   Ibid [10].

 4   Ibid [7].

 5   Exhibit MFB 4 Attachment GL-10 [11].

 6   Exhibit MFB 4 [11].

 7   Exhibit MFB 4 Attachment GL-3.

 8   Exhibit MFB 4 Attachment GL-4.

 9   Exhibit MFB 4 [12].

 10   Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30.

 11   Ibid [7].

 12   Health Care Complaints Commission v Duggan [2015] NSWCATOD 142.

 13   [2016] NSWCATOD 30 [7]–[8].

 14   Ibid [2]-[3].

 15   Ibid [6].

 16   Ibid [106].

 17   (1938) 60 CLR 336 at 362-3.

 18   Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30 [11].

 19   Ibid [117].

 20   [2015] NSWCATOD 142 [5]–[11], [26].

 21   Exhibit MFB 4 Attachment GL-10 [14].

 22   [2016] NSWCATOD 30 [5]–[8].

 23   Transcript PN 495.

 24   Exhibit MFB 4 [15].

 25   Ibid [17].

 26   Ibid [14].

 27   Ibid [17].

 28   Exhibit MFB 4 Attachment GL-6.

 29   Exhibit MFB 4 Attachment GL-9.

 30   Exhibit MFB 4 Attachment GL-10.

 31   Exhibit MFB 4 Attachment GL-10 [15].

 32   Exhibit MFB 4 Attachment GL-10 [19].

 33   Exhibit MFB 4 Attachment GL-10 [17]; see also Health Care Complaints Commission v Duggan [2015] NSWCATOD 142.

 34   Exhibit MFB 4 Attachment GL-10 [26]-[27].

 35   Exhibit Duggan 1, Short Minutes of Order.

 36   Exhibit Duggan 5, Respondent’s Outline of Submissions, [7].

 37   Exhibit MFB 4 Attachment GL-14.

 38   Exhibit MFB 3, Draft Determination.

 39   Exhibit MFB 4 [18]; Exhibit MFB 4 Attachment GL-12.

 40   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645, [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, at [25].

 41   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 [52].

 42   [2016] FWC 2959.

 43   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 44   SDA v Big W Discount Department Stores PR924554 at [23].

 45   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [23].

 46   Ibid.

 47   MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 48   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [21]-[22].

 49   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 50   The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

 51   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 52   CFMEU v AIRC (2001) 203 CLR 645 at [30]-[31]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].

 53   CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].

 54   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36].

 55   Fair Work Act 2009 (Cth) s 739(3).

 56   Fair Work Act 2009 (Cth) s 739(5).

 57   [2016] FCAFC 82.

 58   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 [85].

 59   [2016] FCAFC 82 [29]-[34].

 60   [2014] FWCFB 7447.

 61   Acts Interpretation Act 1901 (Cth).

 62   [2014] FWCFB 7447 [41].

 63   Exhibit MFB 4 Attachment GL-14.

 64   Exhibit MFB 1, Submissions of the Applicant, [10].

 65   Ibid [12].

 66   Exhibit Duggan 5, Submissions of the Respondent, [13].

 67   Exhibit MFB 1 Attachment.

 68   Exhibit MFB 4 Attachment GL-14.

 69   Exhibit MFB 4 Attachment GL-9.

 70   Transcript PN 83-85.

 71   Ibid PN 135-136.

 72   United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2016] FWCFB 2894 [33].

 73   AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 [41].

 74   Omondi v Flinders University PR969599, at [40], with reference to Yerbury D and Karlsson M, The CCH Macquarie Dictionary of Employment and Industrial Relations (CCH Australia Limited, Sydney, 1992), p 274.

 75   O'Rourke v Miller [1985] HCA 24; 156 CLR 342.

 76   Commissioner of Police v Eaton [2013] HCA 2 [16], per Heydon J.

 77   Mann v Ross and Others [1999] FCA 273, (1999) 97 IR 385, at 390.

 78   Donaghey T, Termination of Employment, (First Edition), Lexis Nexis Butterworths, 2006, pp.103-104.

 79   Tadd v Electronic Services Canberra Pty Ltd, AIRC unreported 1997, Print P5892.

 80   Irving M, The Contract of Employment, Lexis Nexis Butterworths, 2012, p.685.

 81   Transcript PN 496.

 82   Exhibit MFB 4 Attachment GL-10 [10]-[13].

 83   Ibid [15]-[16].

 84   Transcript PN 516–520.

 85   Ibid PN 555.

 86   United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894 [26].

 87   Ibid [33].

 88   Applicant’s Reply to Questions for Counsel, 13 July 2016, [33].

 89   Fair Work Regulations 2009 reg.1.07(2).

 90   Transcript PN 135-136.

 91   Applicant’s Reply to Questions for Counsel, 13 July 2016, [14].

 92   Respondents’ Answers to Questions for Counsel, 18 July 2016.

 93   Applicant’s Reply to Questions for Counsel, 13 July 2016, [13]-[14].

 94   Ibid [22]-[23].

 95   Exhibit MFB 4 Attachment GL-9.

 96   Exhibit MFB 4 Attachment GL-3.

 97   Transcript PN 430.

 98   Ibid PN 396–400.

 99   Ibid PN 256.

 100   AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 [41].

 101   Encyclopaedic Australian Legal Dictionary, LexisNexis, online edition, accessed 29 July 2016.

 102   Transcript PN 63.

 103   Exhibit MFB 4 Attachment GL-10 [15].

 104   Encyclopaedic Australian Legal Dictionary, LexisNexis, online edition, accessed 29 July 2016.

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