Some people think that the most exclusive men’s club in Melbourne is the Melbourne Club at 36 Collins Street. They are wrong. It is the Melbourne Fire Brigade. I have been a member of both clubs, for more than ten years in each case, and I should know.
I got the pink slip from the MFB the other day after about 13 years as their disciplinary officer hearing charges under their act of Parliament. I acted as the delegate of the CEO in the powers granted to him by that act to hear and determine disciplinary charges. In a similar fashion, I had for about 18 years acted in the place of the taxing authorities of this state to hear and determine objections to assessments of tax under Acts of the Victorian Parliament. Tribunal members do not have the protection of life tenure under the Act of Settlement, and this is the second time I have been reminded of that.
In a memoir I wrote about my professional life, that has been published on both Amazon and Apple under the name ‘Confessions of a Barrister’, I said:
That left the Fire Brigade. Their statute left the CEO to hear disciplinary charges. The CEO wanted to be involved in laying them, not hearing them. No one had been successfully charged for years, if ever. I advised him to delegate those powers. His lawyers said that he could not. I gave different advice, which the Brigade accepted. They asked who should do it. I asked a retired County Court judge. He accepted, but then declined when the government said that it would affect his pension. The Brigade asked me to do it, and I accepted.
There was a far bigger mess than I had inherited in tax cases. There was a kind of institutional industrial disease. No one ever got to trial. They would just put up some nonsense from a tame doctor. They had to learn that nothing short of a vigorously cross examined doctor would get an adjournment. As for ‘stress’, if someone was too stressed to come to us, we would go to them – I could just imagine pairs of eyes peering through the venetians as a cavalcade of police cars and fire trucks rolled up a street in Broadmeadows.
The other problem was the lawyers. I was copping the bush lawyer component of the industrial bar and the criminal bar. I wrote a paper called ‘Bush Lawyers’. They have an answer to everything except the question. The industrial people were just away with the birds talking juristic nonsense. The criminal people were into game-playing and head-kicking, and both blow up in your face in a disciplinary tribunal.
But the worst problem was the class war, something from another time or another place. Sharan Burrow, then the President of the ACTU, and a most impressive woman, gave evidence before me in one case. I was very relieved when she said that this was the most poisonous industrial relationship she had seen.
One case involved an allegation of ‘scabs’, the most lethal word in the industrial lexicon. We got into the third day – two too many. Counsel for the union was cross-examining the investigating officer about the investigation. How was this relevant? The act says there has to be an investigation – before someone was charged. That is hardly surprising. Then the horror of it struck me – if counsel could show there had been no real investigation, he would then submit that the charge had not been properly laid. This was the sort of nonsense that was being spruiked. Pure bullshit.
During a break in play, I ran into the union secretary. I said I could give him a quote. He asked what I meant. I said that if his bloke went down, I would not fire him. The matter was all over an hour or so later. I understand there may be problems with quotes, but something had to be done to stop this effusion of public money.
I told the Brigade that I would talk to the Union. I thought that they should get to meet someone who had such power over their members. I thought that management might try to nobble me and that fairness required that the union have an equal opportunity to try to do the same. I had the secretary and president home to dinner, in what became a very boozy affair. The secretary had a very big public profile, but he wanted me to be inspected by Sharan Burrow and a big mover in the Labor Party.
In the upshot, the union bought into the process and managing the problem, and I felt as comfortable in talking to them as to management about general issues before the tribunal – such as trying to reduce the role of lawyers, and trying to stop ‘lawyerising’. I told the union secretary at the beginning that there were only two rules – no verbals, and no discussion of individual cases. He has observed both of those rules.
I was invited to the annual dinner dance of the union at the San Remo Ballroom in Carlton after the then CEO had been dropped off the list. He then rang me while I was in the bath listening to Haydn’s Nelson Mass. He asked me not to go. I said that I had accepted and that I had arranged to take a former articled clerk. This was Karen Knowles who was also a singer. This did not improve the humour of the CEO. I later wondered why the firies were asking Kas for her autograph but not me. Since then I have got on very well with both sides, which is as it should be.
The relative peace did not mean that I was not appealed from as well as getting sued in the Federal Court, the Supreme Court, and some curious industrial outfit, but nothing much seemed to come from any of my beneficence to the bar.
We got through the backlog, and established sensible ways to get through the business. One morning I actually had a case with no lawyer on either side, and I am sorry that there is not more of this. From time to time I would hear mutterings that I was not being hard enough. I will just mention one case.
A fire truck on display at a charity day for kids dying of cancer rolled over on TV and there was embarrassment and anger at Brigade HQ. They charged the man driving – who had surrendered the wheel to a mate – and the officer in charge – who was nowhere near the vehicle when it fell over. I saw no case against him and I dismissed that charge at the close of the evidence of the Brigade. I had to give a suspension to the man who should have been driving – his name was W.
During the hearing, I got them to take me for a ride on one of these vehicles with both counsel. As we got going, we passed a handsome woman who had been in the tribunal room. I was told that she was the wife of the officer who had been charged – and the mother of nine children! When the hearing resumed, I asked counsel for the Brigade what penalty he would seek if the charges were proved. Dismissal. For both? Yes. I wondered how this would go down in the people’s daily – a fire brigade officer, with a stainless record after 20 years, and the father of nine children, had been fired for giving of his spare time to attend a charity for kids dying of cancer, for an accident that he had nothing to do with. I also wondered how long it would be before the comrades returned to work.
The case of Mr W was hardly less interesting. He had grown up with the guy that he gave the wheel to. They had been garbos together. They had both therefore had experience in driving large heavy vehicles. But while W went from being garbo to firie, his mate went into business and became very successful and very rich. He also became committed to charities. He gave evidence before me, and he was very impressive.
I met both these guys twice later. One was at a football presentation that the union had invited me to. (It was a VFL function; the comrades are not toffs.) The secretary was late – as usual. I was directed to a table. The guy next to me asked if I knew who he was. No, mate. It was Mr W! I cursed the secretary for being late, but Mr W and his mate (the charitable ex-garbo) and I got on very well.
The second meeting was at the greatly favoured San Remo. It was a packed house. It was a living wake held in honour of Mr W before his expected death from cancer. I told him that I was honoured to have been invited, and I meant it. It was a very generous and decent gesture of both Mr W and his mate – and the union.
The pink slip arrived by email on a Friday afternoon. Someone must have told the senders that that is the best time of the week to go shooting. I replied that day asking who was taking my place, and a week or so later, I sent another letter to the CEO asking the questions set out at the end of this note. The only reply I got was an attempt to gag me – except that they did say that they had ‘not made any decision as to a replacement but have instead decided to appoint a delegate on a case by case basis when the need arises to assist the organisation.’
It is curious that they have discontinued a process without deciding on a replacement – and without giving any reasons for their decision. The inference may be open that they have done what was required of them by firing me and that they will worry about what to do with an act of our Parliament later – or just let it rot. You might care to ask them what they had in mind.
To enter into the men’s club of the MFB is a far more unworldly act than entering into the Melbourne Club. It is somewhere between Alice in Wonderland and One Flew over the Cuckoo’s Nest, although here there is a real issue about who constitutes ‘the Combine’ here. When I started hearing these cases in 2003, I used to go back to my chambers and collar a colleague at random to ask them to assure me that it was not I who was mad. It really was that unnerving – and, sadly, it stayed that way most of the time later. People who have not been in it can never know what it is like. People who have been in it can take a long time to get over it. If you think I am joking, or laying it on too thick, you are wrong.
The members of this club enjoy privileges beyond the dreams of most Australians, and the club holds enough reserves of money to pay lawyers to defend those privileges and keep the men in the style of life to which they have become accustomed. The UFU has been a major benefactor of the Victorian legal profession for generations. It is ironic that the lawyers are then instructed to portray the members of this club as poor, silly people who are quite incapable of thinking for themselves – without prejudice to their God-given entitlement to pay rates that would not be possible outside the public sector.
Let me give you as an example of the unworldliness of it all some idea of what happened in the last case that I heard.
I had not been asked to hear a case for years. Was discipline at the MFB so tight? A highly ranked officer – that of Commander – was charged with having obscene material on his MFB computer. There was no doubt that the material was on his computer, and after less than a minute looking at it, the average member of the community would have had no doubt that a lot of it was obscene, if not worse. A lot of it was simply an offence against humanity. I never heard anything resembling a defence on the merits. There wasn’t one. Even though the man’s job was on the line for this kind of offence, a properly presented plea would have disposed of the case in about an hour – and for the best kind of result that a person in the position of this accused could have sought. At least, that is what would have happened in a sane court or tribunal.
Instead, the case went clean off the rails at the start. During the interview process, the accused – I will call him Smith – was assisted by another commander who, as it turned out, had committed a similar offence some time back. The commander assisting Smith told the charging officer that Smith was not a member of the union (the UFU) and since Smith had no other advice, he would assist Smith in the process. This other commander apparently had a law degree. Neither he nor Smith was inclined to concede that Smith had breached any relevant obligation. The record of interview was a farce, and an embarrassment for all involved. God only knows what the public would think if they found out the kind of nonsense put on by people of supposed rank.
Later Smith apologised in writing for having breached a written Policy of the MFB. That of course did not mean that he was making any admission, much less that he would accept responsibility by pleading guilty. As commonly happens in that tribunal, one party wanted to have his cake and to eat it.
When the case was called on, Smith did not appear. This, to put it softly, is an unfortunate occurrence in hearing a disciplinary charge against a member of a uniformed force that is called on in emergencies. There was no evidence as to why Smith was not there, but it was quite clear that he was aware of the time and place of the hearing. We therefore proceeded in his absence. Then I was told that Smith was not there because he had been on night shift. It is about this time that you can feel the descent into Wonderland starting. Then I was asked by counsel for the MFB to put the hearing over to the following day to allow Smith to appear. I reluctantly agreed to that course.
The following day Smith was again not present in the William Cooper Justice Centre – although I had passed him serenely sunning himself on the steps of Owen Dixon Chambers on my way to court. Instead of Smith, there was a letter from lawyers threatening Supreme Court proceedings and there was correspondence with the union talking about proceedings before the Fair Work Commission. Although Smith was not there, he was represented by threats of legal action in at least one state or one federal jurisdiction or both. In the absence of an injunction from a court, I wanted to proceed. The matters were serious and there was simply no evidence that might in some way justify the absence of Smith.
I was then told by the MFB that it agreed to a further adjournment – and for some weeks. Then the matter had to be put over for procedural reasons, some of which related to the work schedule of Smith. By now the familiar Wonderland feeling was becoming oppressive and I was not getting any help from the Brigade.
The solicitors for Smith then said they would apply that I should step aside from hearing the case because of comments I had made about the seriousness of the case. The application would be made on the basis of apprehended bias. They also said that they had applied to the Fair Work Commission to ‘determine the proper forum for the determination of disciplinary proceedings brought against’ Smith. I scheduled the hearing of the bias application for 8 AM on the footing that the hearing date would stand, but that the lawyers for Smith could go to the Supreme Court and seek an injunction against me if they lost their bias application.
When this application came on at 8 AM, Smith was again not there. But this time he was represented by one of Her Majesty’s Counsel and a solicitor. They were two of the nine lawyers in the court room that morning. NINE. For a matter that could and should have been disposed of in an hour in an office at the MFB – preferably with no lawyers involved at all.
The bias application was competently argued by both counsel in less than an hour, as I recall, and I gave an extensive ruling rejecting the application the next day. (I had of course been handed folders of cases.) So that you can understand how unreal all this forensic posturing was, I will set out some extracts from that decision.
The charges allege that the material is offensive, sexist, racist and obscene. One set of photos shows a man whose genitals have been removed and stuffed in his mouth. The email comment is ‘Ouch!’ One shows a woman apparently trying to effect vaginal penetration with a form of fire extinguisher. One shows the rescue of a man whose car had gone down a well in, I think Saudi Arabia, and as I recall the conclusion is to the effect ‘That is why Allah gave them fucking camels.’ One asks: ‘What is the race that stops a nation.’ ‘Aboriginal.’ No one would want to spend time on this material, but it is difficult to think of any interest group or minority in this country that would not be seriously affronted, and possibly provoked.
So, the evidence raises serious issues about the conduct of an officer of the Brigade. Then there is the significance of the rank of Mr [Smith]. In a case heard three years ago, I said of another commander:
A commander is a very high ranking officer in the MFB. There are only two between him and the top. This one told me that he had been paid more than twice the average wage and twice what this nation pays its secondary teachers in government schools. He finally accepted that the average taxpayer would be appalled to hear that someone in his position had collected $1300 for not turning up – and was sitting on the money. He had not considered refunding the money…
If a real question arises as to the conduct of someone in a position of trust, that person should say candidly what happened. If you want to put that as a legal proposition, the person trusted must respond in good faith.
Commander X did not do this. He behaved as if he saw the investigation as a kind of game, and as if his integrity were just a kind of bargaining chip. In his reaction to investigators, and in his evidence here, Commander X demeaned his office and rank and risked damage to the standing of the Brigade.
… any member of the MFB who prevaricates or plays games with investigators or in here can expect to be dealt with very firmly. If the initial conduct of this commander was bad, his response was worse. It suggests what might be called an attitude problem.
This question of attitude is the most troubling. These people work for terms and conditions beyond the dreams of most Australians, let alone people elsewhere. This man gets paid an amount beyond the comprehension of a meat-worker at the back of Kyneton, let alone a Sudanese migrant newly come to Melton. But this commander looks unable to accept the responsibilities that come with this high rank and great remuneration. The traffic looks one way. It is as if firefighters like this commander have been seduced by their own success.
A commander is therefore a person of high rank. The higher the rank, the higher is the sense of duty expected and required of the person on whom the rank is conferred. That person stands in a position of trust and confidence to their employer. Any employee is legally obliged to do his or her job loyally and honestly. That means that they cannot use company property for private purposes, unless that use might fairly be characterized as incidental, or for improper purposes.
This matter boils down to a simple issue of trust. In the light of the evidence of what was on the computer, and the response of Mr [Smith] to the charges he now faces, can he be trusted to discharge the duties owed by him to the Brigade as a commander?
Later, I referred to a memorandum dated 17 September 2003 that I sent to the Brigade and the union reflecting on the first six months of a jurisdiction that had fallen into disuse. It contained some shockingly bad prophecies:
‘The procedure had not been working properly for some time. It is not surprising that there were some problems in getting it cranked up. People on both sides had to come to grips with a new kind of procedure. So did the Tribunal. The union wanted to test some questions in the AIRC and the Federal Court. Most of these issues have now been ironed out. In the past, disciplinary processes have stalled when ‘industrial’ issues led to an application to the AIRC or the Federal Court. It is most unlikely this will ever happen again.’
So much for hope. And then this:
‘There is a recurring problem of legalism that I have referred to in a number of contexts. These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers. There has been too great a tendency – at times on both sides – to leave matters to the lawyers. Bush lawyers are to be discouraged whether they are qualified as lawyers or not, and reliance on technicalities is not encouraged either. Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings. This message, I think, is getting through, but it is slow.’
‘A number of the disciplinary proceedings arose out of a context that could be characterized as industrial. In truth, every disciplinary proceeding can be so characterised if it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements. It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole. We can I think forget the industrial mantra.
Well, we now appear to have undergone a generational regression, but I set out those remarks so that people outside will understand the sense of déjà vu that those running the Brigade must undergo when the statutory process has to be cranked up again after a period of inaction. These problems were adverted to in Measure for Measure, but that happy ending looks a long way back now.
Perhaps I might make a further reference to the obvious need for discipline in a uniformed force that may be called upon to respond to a terrorist attack. I also refer to the obvious need for the Victorian statute to give the CEO the power and duty to enforce discipline in his Brigade. Until yesterday, I had thought that it was axiomatic that only the Victorian parliament could alter that dispensation.
‘I have referred to what the principal Act says under the heading ‘Discipline’. This case is being dealt with under other provisions of the same law. We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies. It is difficult to envisage a fire brigade where this is not the case other than a fire brigade run by the Marx Brothers.
It would simply not make sense to talk of an undisciplined readiness for a fire or emergency. It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want. Terrorists prey on unreadiness and thrive on indiscipline.
It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively. This is very important. If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?
By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no‑one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters. Since the process derives from the parliament, it can only be changed by the parliament. It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence. I would expect each party to be equally interested in obtaining a determination of issues with all due expedition. However that may be, the people of Victoria are in my view entitled to no less.
That is the background to the present application. I apologise for its length, but I do not want anyone reading this to have any misapprehension about what is at stake in this proceeding.
I then made some comments about the differences between the Fair Work Commission and the Victorian statutory tribunal.
Because I am not an industrial lawyer, I know very little about the Fair Work Commission, just as they know very little about me. This tribunal is of the state; that is of the Commonwealth. They occupy different worlds, in my opinion, as I have endeavoured to show in my remarks above about the irrelevance of the ‘industrial’ mantra. The Commonwealth body focuses on the rights of employees, and the duties of employers. The state tribunal focuses on the duties of employees and the corresponding rights of the employer. One looks at obligations founded primarily in contract and regulated by statute; the other looks at obligations at common law attracted by statute. One is concerned with regulating employment at large and achieving industrial peace; the other is concerned with providing an essential service through a uniformed force.
Above all, the Fair Work Commission seeks to arrive at agreements and settlements, and they encourage off the record discussions for deals. This tribunal is here to make findings of fact and decisions of law to maintain discipline not peace. To the contrary, our act envisages that the CEO will make a binding determination to resolve issues relating to discipline. That is why I said in my memorandum that you cannot in this tribunal have a ‘settlement’ as such and that the only way you can achieve a ‘satisfactory resolution’ of the issues raised by a charge under the act is for the statutory officer to hear them and determine them as expeditiously as possible. All this has been dealt with here before. The differences between the state and federal bodies, with all respect to those who contend the contrary, seem to me to be both inevitable and irreconcilable.
In short, industrial peace and the role of a uniformed force protecting public safety are very different things. That is why I say that the two tribunals are in different worlds – different universes. It would in my view make as much sense to ask me to sit on the Fair Work Commission as it would to ask one of its members to sit here. Neither of us would know what to do.
As a result of what I am now told by Mr Grace, that opinion of mine may need some correction. At an appropriate time therefore, we need to consider the consequences of the overlap, to use a neutral term, between the two bodies, and the impact of that overlap on the due administration of justice under an act of the Parliament of the State of Victoria. I cannot help thinking that some industrial lawyers are prone to forget that the public has rights too. (Some see a similar tendency in some tax lawyers.)
Later I said:
Without wishing to harp on the point, it is a little difficult to envisage the Fair Work Commission performing those functions. What if a firefighter belts an officer, or vice versa – can the culprit avoid being dealt with by the CEO under the act by invoking the powers of the Fair Work Commission? Who decides what cases the CEO can take? I was originally appointed as the delegate by a CEO who said that it was more important that he was ensuring that charges were in fact laid than that he personally should hear them. I can now better appreciate his prescience.
At the end of the decision, I said:
Only God knows what the hypothetical observer might think if told what I have now been told. The tribunal got cranky with Mr [Smith] for not being there on day one, but Mr [Smith] was apparently under the impression that his federal application had sterilized the proceedings brought by the Brigade. Then on the second morning, the tribunal member breezes past Mr [Smith] standing on the steps of Owen Dixon Chambers and thinks that he is looking remarkably serene for a man who has just a sabre rattled before him, but Lo!, Mr [Smith] was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned. So the tribunal member gets even crankier with Mr Smith, and this time with the Brigade also. And all because wires got crossed. It does not bear thinking of how the man on the Storm terraces would respond to this sad tale. It would not be printable here. If he were told of the costs and the lawyers involved, then, in NRL terms, things could get really ugly.
I have indicated that if I reached the decision that I have now reached, and Mr [Smith] wanted to challenge it in the Supreme Court, then I would expect to proceed with the hearing on Wednesday 13 May unless I was directed otherwise by that Court. It hardly becomes me to invite such a challenge, but it would subject a struggling and beleaguered statutory process to the cauterizing glare of public scrutiny by a superior court, and, if I may be forgiven the phrase, that may be just what the doctor ordered.
It will I think be clear to informed observers that this tribunal, and perhaps this Brigade, has seen better days. This is, I think, the first case for about three years and just the second case in five years. The sound and fury that now meets this rejuvenation of the process bears a sadly eerie resemblance to that which greeted the rejuvenation about twelve years ago. Even some of the faces remain the same. I make no comment on previous administrations, but it is clear to me that the present CEO and his staff are determined to fulfil their obligations under the statute, and to make this disciplinary process work. I am equally determined to do all on my part to the same end, and I would hope that anyone with any interest in the Brigade has the same objective.
Because the issues of jurisdiction between state and federal bodies was important, I wrote to both Attorneys-General setting out what I thought were the major questions. Neither gave a substantive answer. It is frankly worrying when Attorneys-General decline to deal with issues in the administration of justice – which were what I was facing.
Well, Mr Smith did not go to the Supreme Court, and he abandoned his claim before the Fair Work Commission. He was dealt with under the Victorian law that he should have been dealt with under. But he and those behind him – even though he was not a member of the union at the time of the offences – have got their way. I was told other charges were in the pipeline, but it now appears that no more charges will be laid under that Victorian statute.
Does this mean that the Victorian statute has been dispensed with as if by the dispensing power of a Stuart king, and that the people of Victoria will have to rely on the Fair Work Commission to protect them and the discipline in one of their emergency services? Have we seen a kind of casual hijack?
Irrespective of the answer to that question, what was the role of the government in all these events? How is a member of a statutory tribunal expected to react when told by one of Her Majesty’s Counsel that the accused man he passed on the way to court ‘was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned’? What role did that Minister have in this phase of the administration of justice? How and when did ministers of the Crown in this state get the right to dictate or forecast the outcome of legal proceedings?
It is curious, is it not? Over about thirteen years standing in for the CEO, I never see or hear from any member of the Board, and I meet some CEO’s occasionally, and some not at all, but as soon as the Chief of Staff of the Minister gets involved, I am abolished. Pop goes the weasel! Those who think that Spring Street or Treasury Place are places for eunuchs may have to think again. Whether that kind of intervention by government in the administration of justice is appropriate is altogether a different question. As it happens, it is a question that was agitated in the fall of the first Labour government in England as a result of the Campbell Case.
There you have a cameo if you like of the games that people can play with other people’s money. You are not allowed to do that in the Melbourne Club but it happens all the time in the Fire Brigade. Sir Daryl Dawson, formerly of the High Court, told me that it was like this back in the ‘60’s when he was at the bar doing a lot of work in MFB cases. God only knows the truckloads of money that the lawyers have carted home from the MFB. (They get nothing out of the Melbourne Club, whose members I suspect may not be as well off as the members of the MFB.)
Before I go back to Mr Smith, let me refer to three comments in the tribunal on why so-called ‘industrial’ issues have no place in a disciplinary tribunal.
In the absence of some formal statement on behalf of the defendants and what their defence was, I inferred that to the extent to which counsel for the defendants was seeking to lead evidence about these matters as being relevant to the charges, and he did insist they were relevant to the charges, it was with a view to asserting that the level of their culpability should be reduced to nil because of the culpability of the MFB in some respects. In my view a case mounted on that basis had one of the four following prospects of success nil, nix, nought and nothing. As I said at the time, I thought I had an obligation to save the taxpayers the expense of entertaining these mini-inquests. In the end I thought it may be just as well to go along with it, but I wish to make it clear that in the future if I rule on relevance in that way, I will much more strictly enforce the exclusion of material that in my opinion is not relevant. I might say that counsel for the defendant did not refer to any of these issues in closing submissions or the plea. Can I say again that this tribunal is a disciplinary tribunal, not an industrial tribunal, and attempts to send its process off the rails will be dealt with more firmly in the future? Industrial issues have no place here.
Then there is the obvious problem of a conflict of interests if others want to use the accused as a vehicle to pursue some ‘industrial’ agenda.
One conflict of interest has been detected in this case. Someone wishing to promote a policy of obstruction or delay may be acting against the interests of an individual defendant who would otherwise be advised to co-operate with a view to keeping any penalty down. Doubtless the lawyers will be astute to detect this issue for the future. It is always unsettling to see someone hit the fence because of a problem in our system – and they happen every day -but this nearly happened to Mr. B in this case. It is ironic that those involved in ceasing to represent Mr. B were saying he would certainly get sacked here.
Then there is the class war.
In the course of the hearing I heard a degree of evidence – again with misgivings about its relevance to me – about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade. Since I have heard all this evidence, I am going to say something about it. It was not good to listen to. The secretary of the union accepted that there had been a class war going on for ten years. He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.
Sharan Burrow does of course have the experience and standing to see this problem in its context. You could not but be impressed by her conviction and her concern. She said that the relationship between the MFB and the UFU is dysfunctional. When I asked her what she meant by that, she said that there were elements of hatred that she had rarely seen – the word used was hate – although she thought that the contact was better at the operational level.
It is not surprising that things are so bad if as a result of a class war people carry brands to their grave. They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light. Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis. In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.
But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions. That is a proposition which, despite its august proponents, defies belief.
All of those observations were made in a memorandum made in 2003 after the backlog was cleared. The hostility – the hate – has since got worse in the succeeding thirteen years. That hostility is now both addictive and compulsive.
The trainwreck of litigation involving Commander ‘Smith’ must have cost hundreds of thousands of dollars. Since union dues come out of wages funded by the taxpayer, you and I get to pick up the tab at both ends. And all this was in a case that could have been dealt with by two lawyers before the tribunal in a morning – and for a man who was not a member of the union when he committed the offences. Instead we got the whole disaster – folders of documents, and trolleys to ferry them, and lengthy written submission and hours of expensive submissions and hearings. About a dead man with his genitals in his mouth. This must surely trump all previous triumphs of the IR Club.
So why was there all the fuss over the first case under the statute for years? It was all part of the class war that I have described in a number of cases. It was a repeat of what happened when I first started in 2003. The men just refuse to accept the law. I have little doubt that that is also the reason that I have been fired. All that money was spent to bring pressure on the MFB to drop the statutory process and those spending the money and those supporting them elsewhere have got what they wanted. It cost a fortune, but it was worth it. You will recall that the express reason for all the delay and agitation was the suggestion that the case should have been dealt with by the Fair Work Commission.
If there are to be any sanctions, they will presumably come from the Fair Work Commission. For the reasons I have given, that suggestion is worse than absurd. It is, frankly, revolting. If you ask who is running the MFB now, the answer appears to be a combination of the Chief of Staff of the Minister, the union, the Fair Work Commission, and a floating panel of about forty or so lawyers – in whatever configuration you choose. Why not just abolish the office of the CEO and the Board – if it exists? Well, I suppose that if the State of Victoria is now run by Ministerial aides and union representatives, we might be grateful that one of those offices is elective. But what is incontrovertible is that backroom deals are poisonous in this set-up – what the MFB needs more than anything is a ruthlessly independent investigation into its darkest secrets conducted on a regular basis.
This men’s club, and the class war that drives it, are sad and corrosive throwbacks to the ‘50’s and the Split. I have never seen a closed shop like it. From time to time, I felt like I had been parachuted on to Mars. I cannot tell you how relieved I was when Sharan Burrow said that ‘this was the most poisonous industrial relationship she had seen’. Count the CEO’s and CFO’s in my time against the African tenure of office on the other side of the war, and ask why the turnover is all on one side.
The class war is related to other failures. I said that the MFB is an exclusive men’s club. ‘Exclusive’ is hardly strong enough. When I go from the bush to Melbourne I am struck, and happily so, by the number of people of Asian or African origin around me. Not in the MFB. Nor any Aboriginals. I have not seen any of them. God knows what would happen if a gay guy came out in there. Men sleep together.
And then there is their attitude to women. That is not just 1950’s. It is antediluvian – or worse – I doubt whether even Noah was so hostile to women as these men are. Psychiatrists or others will have their opinions on the views of these men on women. You get tired of listening to tales of divorce and alcoholism. They are traps for all of us. A doctor gave evidence that men in emergency services are good haters. Whatever the reason, there are far more women in combat roles as airforce pilots in the air forces of rigid if not backward Muslim nations like Pakistan and Saudi Arabia than there are in Melbourne’s Fire Brigade. That is remarkable is it not?
I have been there only part-time for about 13 years, and for the last five or so I have hardly seen much because of a lock-out imposed from below, but I have seen enough face to face to feel the hate. I have also been involved with organisations in the private sector making real progress on the position of women. I have also raised two daughters and seen at first-hand the evil that this kind of closed mind and closed shop can produce. The standing of women in the Melbourne Fire Brigade is a national disgrace in a publicly owned utility.
There is a simple reason for getting women up to say 50% of the MFB – apart from justice and decency. That is that women will add some sense and reality to an outfit that has lost both, and, most importantly, women will help to get rid of that brutal blokey bullshit where the weasel word ‘mate’ denies all courtesy and decency. If the current regime of the union can achieve parity for women in the MFB, even by opposing it, they will be well remembered. It does look to me to be the last chance for sanity for this outfit.
One of the reasons for the intense devotion of these men to the class war and their hostility to women is that they have so much down time. Anyone who has run a business knows that things get dirty when people do not have enough to do. That is the case here. How much time do they spend fighting fires or doing something useful? The relaxed conditions of work then lead to second jobs and other engagements outside what should be their only work.
That, then, brings me to the Enterprise Bargain Agreements. Whatever good they may have done elsewhere, they have been a disaster here. You should get hold of one. Five times longer than the Constitution and ten times as hard to follow. The management time spent on these would support a battalion in Iraq. The EBA’s have produced three evils.
All the benefits go one way, and the result is a form of manipulation, to use a polite word, to encourage a higher return to the firefighter – and a higher drain on the taxpayer. Anyone in that outfit who suggested that they should try to contain outgoings would be branded as mad – or worse.
Then, the baroque sculpture of these edifices produces a total loss of initiative, and a kind of mindlessness and subservience to regulations that makes Orwell’s 1984 look as out of date as it is. It is hard to think of anything that could be so demoralizing. It is like a nanny state in Fantasyland driven from below. This could not happen in the private sector – no business could afford it; it would just collapse. I repeat – this could not happen outside the public sector. But this outfit staggers on because the taxpayer is there for the plucking.
You get this nit-picking, bush-lawyering nonsense. In a case as simple as that of Smith, you get referred to policies and guidelines and reams of material from the bureaucracy. One of these items of red tape uses the word ‘appropriate.’ So, obviously, counsel asks the accused whether his employer gave him any instruction on what ‘appropriate’ might mean. This is to a commander who has on his MFB computer images of a man with his genitals cut off and stuffed in his mouth and cartoons grossly offensive to followers of Islam. I can recall being told one man had not been able to read an MFB policy because he had not been trained how to access the Internet. You are now at the main entrance to Bedlam. Somewhere between a racket, a riot, and a farce. How do you, the one who is funding it, feel?
Finally, the EBA is the Trojan horse by which the management of the MFB gets handed over to the Chief of Staff of the Minister, the Fair Work Commission, and a busload of lawyers. It was the means for blowing up the Smith case. There are flow charts to show what so-called management has to do before it can do anything – such as charge someone under an act. They are impossibly – laughably – convoluted. They lead to a dispute. Bonzer – off to the Fair Work Commission and the Chief of Staff and Spring Street. And there goes an act of the Victorian Parliament.
What is the result? You get trainwrecks like this case. Or the commander who claimed and got paid $1300 for a shift that he did not do. That is called theft. But he turned up to the tribunal confident that the matter would be dealt with sensibly because he had once been a charging officer. It was quite evident that this man had no idea of why his actions were wrong. He seemed to think that he had done enough in the past to get let off for this. The MFB had not sought dismissal, but after seeing him in the witness box, it accepted his resignation. He still had not repaid the money. The MFB had certainly not sued him for it.
Then there was the member who was charged with theft from the MFB. The criminal case dragged on for years. The accused was on leave – on full pay – for years. YEARS. When the Brigade finally got the nerve to invoke its own act of Parliament, the man’s counsel asked for an adjournment – because he had had not had time to get instructions! There was nothing like a defence ever suggested, but the case went over two or three days. I was told that the accused was too ‘stressed’ to attend. I offered to go to him. Then he was seen downstairs outside the court building, palely loitering with a mobile phone.
And that is before we get to the CFA whose members do it for nothing – and some of whom get killed. God help us if a member of the MFB ever gets killed on duty – and God help those of us in the bush if the class war ever gets to infect the CFA. There should be a close analysis of the rewards paid to firefighters compared to those paid to say schoolteachers or police and of the price paid and the qualifications needed by those on both sides. Are firefighters better paid, less stressed, and less qualified than schoolteachers? Do they work as hard?
People who are interested in this kind of folly should ask for copies of all of the decisions and memoranda of the statutory tribunal. You may well be met with a tsunami of bullshit, bluster, obfuscation, special pleading, and personal abuse while panels of lawyers are consulted – at your expense. Good luck. I have had enough for the moment. People in both bunkers have a lifeblood that can only thrive on conflict that murders thought. It gets them all in the end.
I now understand what people mean when they say that economies like Greece, Italy, or Spain need ‘structural reform’ to get rid of closed shops that resemble medieval guilds. It is not just the taxpayers who get clobbered in this class war. You will not find many at HQ who do not look shell shocked – just look at the turnover. I have spent time consoling victims. And I fear that firefighters are being robbed of their own dignity or sense of worth. That I think is a real shame.
And then we have to ask whether the most exclusive men’s club in Australia is now in truth run by the Marx Brothers. The fact that the response of the MFB has been to seek to sweep everything under the rug merely shows how vital it is in the public interest that the enforcement of discipline in the MFB not be buried behind the closed doors of an IR Club closet.
For thirteen years a statutory tribunal inquired into the affairs of Melbourne’s Fire Brigade. That tribunal gave reasoned decisions. Those decisions show serious problems with morale and discipline in the MFB. The MFB does not want people to read those decisions. Why not?
People in Victoria may have at least three questions. What problems of the MFB do those decisions reveal? Why were not taxpayers told of these problems before? What has been done to fix them?
When they get the answers to those questions, people in Victoria will be better placed to know why their statutory tribunal was strangled and then terminated.
And then they may get to what may be the ultimate question. What is it about this outfit that makes these very average Australians so untouchable? Why has neither political party been able to bring to this outfit either sanity or decency?
COPY LETTER TO MFB CEO
I don’t appear to have received a reply to my question of who is taking over. You will recall that no reasons were given for the decision referred to – which some might think unusual.
I am going to write a memoir on my time at the MFB over and above those which you have already seen. I am not sure whether to do it as an essay or a book. One mode would be simply to refer people to the decisions of and memoranda from the Tribunal.
I set out below some of the issues on which I invite your comment.
- Why was the statutory process so little used?
- In particular, why has it only been used twice in the last five years?
- What has been the effect of the hostility between firefighters and management – between the union and the Brigade – on the use of the statutory procedure?
- Do you agree that the style and technique and tactics of industrial lawyers have been unsuitable for use in a statutory disciplinary tribunal?
- Do you agree that lawyers or advocates instructed on behalf of the firefighters by the union may be put in a position of conflict of interests – if, for example, the industrial objectives of the union may conflict with the forensic interests of the firefighter?
- How many firefighters have been dismissed since 2003?
- Do you know if any member of the Board contacted me to enquire how the statutory process was operating?
- Is it appropriate for a body like the MFB simply to discontinue a statutory process without referring to the maker of the statute?
- Was it appropriate for the government to intervene in the statutory process in the manner that it did in the final case?
- What if any part has the government played in the decision to discontinue the statutory process?
- What if any part has the union played in the decision to discontinue the statutory process?
- What if any part have the members of the union played in the decision to discontinue the statutory process?
- How many of the following are currently employed operationally by the Brigade: (a) women (b) people of Aboriginal Asian or African extraction or (c) homosexuals?
- What is the average pay of a commander employed by the MFB?
- What is the average pay of a secondary school teacher employed in a government school in Victoria?
- How would we compare the qualifications and responsibilities of a secondary school teacher with those of a Commander in the MFB?
- One of the cases heard by the statutory tribunal revealed alarming and systemic problems with absenteeism – what has been done to fix those problems? Why was only one such case brought before the tribunal?
- In the last case, the tribunal asked a procedural question that a police prosecutor would have answered off-the-cuff – and correctly; counsel for the MFB asked for time and then to be excused; then six lawyers for the MFB left the courtroom. Was this appropriate?
- In instructing lawyers to appear before the tribunal, did the MFB think to have one of its lawyers instruct a barrister directly – that is, assuming that he or she did not feel up to presenting the case on their own?
- What were the legal costs of the MFB in the last case? What do you estimate to have been the costs of the accused in that case? I am enquiring of the costs incurred in the tribunal, before the Fair Work Commission and in responding to government interventions or queries.
- How many fires on average does a firefighter fight each year?
- How much of the time of a firefighter is on average spent fighting fires?
- How much of the time of a firefighter is spent in active duty in responding to calls?
- For what part of the time of a firefighter on duty would it make any difference if the firefighter was a woman?
- What is the divorce or separation rate among firefighters?
- How much sick leave do firefighters take on average each year?
- How much management time is spent (a) in preparing EBA’s and (b) dealing with industrial issues?
- How much time does management spend on operational issues?
- How many firefighters have a second job or other employment apart from their employment with the MFB?