The most exclusive men’s club –part II Two black holes at the MFB

 

Recent press reports suggest that some are surprised at the level of warfare within the MFB, and at the hostility of its workforce to being opened up to women.

I started there in 2003 and as best I can see, things have got steadily worse since.  This is serious for us in Victoria.  It is silly to suggest that an outfit that is at war with itself can be trusted to respond adequately to emergencies.  It would also be terrible if the infection is passed on to the CFA.

At the end of this post, I set out a memo that I gave to the MFB in 2003 dealing with a number of real problems facing it, especially the class war.  Since then all those problems look to have got worse.  Certainly the class war is now worse than ever.  Do Australians in the year of Our Lord 2016 believe that they should be paying taxes to support a public utility whose members devote their time to battles in the class war and doing all in their power to exclude women?

Apart from the class war, let us focus on two black holes.

One is the vicious and ingrained discrimination against women.  No decent government of either stripe can tolerate this kind of indecency.  This isn’t just bullshit.  It is an affront to humanity.  The bullshit comes in when those in charge of the club say that they are locking women out to keep us safe.  No one believes that.  Except that they possibly do – they live in their own bunkers removed from the world.  War and conflict to them are air and water to the rest of us.  The connection between the class war and women may not be obvious, but I think the only way of getting out of the inbred madness of the class war is by getting women up to at least 50% of operational staff at the MFB.

Another black hole lies in the employment agreements (EBA’s) that have processes that management should observe before managing the MFB.  If the other side do not like the management, they run off to a federal body and say there is an industrial dispute – management has not followed the process, and therefore the federal body should stop management from managing.  Now, you will protest that this is obviously bullshit, and I agree.  But bullshit works in that netherworld of ‘industrial relations.’

This is where the other black hole comes in.  This bullshit works because of the class war.  It was on this basis that the men have now effectively put out of action and act of the Victorian parliament dealing with discipline.  And it is on this basis that the men want to continue their lock-out of women.  And governments of both stripes have acquiesced in this bullshit – even though this might be a real case of loss of ‘sovereignty.’

I am setting out the memorandum below in full for two reasons.  The MFB does not want any of this aired.  They say that my work was confidential.  I have explained why I do not think that that view is correct or that it would preclude publication. But the preference of an arm of government for operating behind closed doors is worrying – especially where the administration of justice is involved – and especially if they may be thought to have something to hide

The second reason for publishing this note is to show the involvement of lawyers in the trainwreck that is Australian IR.  We lawyers have an awful lot to answer for.  Lawyers do not get paid to sprout bullshit just because they are doing it to the tune of the club song, but I have seen this happening on both sides in all my time at the MFB.  There are times when I despair at the want of professional responsibility in some lawyers that is costing Australians a fortune and that is costing this particular public service group any chance to recover some of its dignity.

*****

METROPOLITAN FIRE BRIGADE

Disciplinary Hearings

The Delegate of the CEO

The First Six Months

Teething Problems

  1. The procedure had not been working properly for some 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. Adjournments
  2. It was soon apparent that adjournments had been sought and granted on grounds that were Guidelines have been provided for requests on medical grounds. Proceedings will not be adjourned to suit the convenience of lawyers. There is a public interest in these issues being resolved quickly and effectively. There is also a growing fear of the damage being caused by legal costs in drawn out proceedings.

Legalism

  1. There is a recurring problem of legalism that I have referred to in a number of 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 1 think is getting through, but it is slow.

Legal Representation

  1. Both sides have in the past customarily been represented by On one straightforward plea the defendants were represented by the union secretary. This could well happen in most pleas. Additionally, if proper notice is given, the charging officer may not need legal representation if there is no legal representation for the defendants and the case is in substance a plea. If I think this gives rise to a problem, which I doubt will be the ease, I can say so. Otherwise the nature of representation needs to be the subject of continuing consideration. It is obviously in the interests of both sides to try to keep the costs down. If this happens, it may well be reflected in the penalty.

Industrial Issues

  1. A number of the disciplinary proceedings arose out of a context that could be characterised as In truth, every disciplinary proceeding can be so characterised 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.

Functions

  1. The primary function of the Tribunal is of course to enforce the law relating to discipline and to enforce and, as required, set It is part of this function for it to declare standards in the sense of saying what has to be done for standards prescribed by the law to be met. The Tribunal has I think been of use on a couple of occasions in being able to declare what the position is in respect of standards, for example, the proper response to an alarm of fire. In this way the Tribunal acts as a kind of audit on the processes in place. The Tribunal itself may not be able to contribute much it will all depend on the quality of the contributions it gets from senior officers. It can also assist in monitoring these processes. For example, issues have arisen in relation to counselling of members after traumatic incidents and protocols in relation to attendance at charity functions that I think received some useful examination. Additionally, the Tribunal is in a position to lay down general guidelines in relation to the need for discipline in an emergency service which is subject to a command structure. These are I think positive contributions that can be made by a tribunal which is seen to be independent.

Duration of Hearings

  1. Some of the hearings went on much longer than they should have The longest was six days because of agitation about industrial issues which in my view were not relevant. What we should be aiming for is to get to the position that I have for the most part in the Tax Division of VCAT. I undertake to hear cases within six weeks of their referral on the footing that the lawyers will endeavour to assist me to dispose of the case in the morning in return for their getting a decision in that afternoon or the next day. There is no reason why we should not be able to work towards that conclusion here. I may say that the only case which has given me any substantive difficulty on reflection has been the penalty that should be accorded to Mr. W (the man in charge of the unit which turned over). Most of the tax cases are a lot more difficult (but any attempt to introduce a political overtone is ruthlessly put down).

Transcripts

  1. I have never had a transcript for a hearing in eighteen years of hearing tax I think the position in future should be that if a party wants a transcript it should make its own provision for it on the footing that it provides a copy of it to the tribunal.

Privilege

  1. Members have in the past been advised that they have a privilege against self- incrimination in respect of questions directed towards disciplinary I do not believe that is the case. The Fire Brigade has an opinion contrary to that held by the union. I have expressed the view that in future members who refuse to answer questions on this ground will be conducting themselves in a way that will be taken into account adversely. This question should be resolved. I would hope it can be resolved without someone being charged for refusing to answer a question. The privilege does of course remain in respect of answers which might lead to prosecution for a substantive criminal offence rather than a simple breach of discipline. The issue is important in terms of operational efficiency. It is in my view quite unacceptable that members involved in a substantial incident can decline to explain themselves to their employer simply because they may be subject to a disciplinary proceeding. It is unacceptable that a firefighter whose apparent lack of discipline has caused serious damage to life or property can decline to account for himself to his superiors because he may get demoted or sacked for what he has done if he does. Additionally, it is plain that this refusal has led to proceedings being taken which may well not have been taken, or to proceedings being very substantially shortened because the charging officer knows what the response of the defendant is. In my opinion, firefighters are demeaning their very significant office by maintaining that they cannot be required to account for themselves.

Venue

  1. There were logistic difficulties with the rooms at Eastern Hill and by and large I thought it may be preferable to get a hearing on neutral This has now been achieved at the premises – which are, for that matter, rather comfortable and spacious – used by the Psychologists’ Registration Board. On the whole I think that move has been a success. There is a relatively low cost attached to the exercise, but I think it is worth it (although I miss some of the personal contacts at Eastern Hill).

Formality

  1. So far I have thought it appropriate for the proceedings to be conducted with a minimum of formality in order to try to get people involved in and accepting the I think it is now time to get back a little formality into the process. We are after all dealing with cases which can have a serious impact, sometimes a terminal impact, on the career of a member. I also think that, perhaps paradoxically, some people may be more at case if there is some more of the formality that people associate with hearings that may have a significant effect on the lives of those involved.

Penalties

  1. Because of the history of these proceedings, and the fact that they have not been invoked much of late, I have in a number of cases felt constrained to say that although these particular defendants would not get the maximum appropriate penalty, the next ones It is important that people understand that I meant those observations. As an example, and it is only an example, someone found guilty in the future of refusing to obey an order would almost certainly be facing dismissal and could on no account expect anything like the extreme leniency shown in the only case to have come up so far.

Publishing

  1. I need to discuss with the appropriate people the way in which the effect of these decisions can best be I have on at least one occasion said that I am proceeding on the express basis that members of the Fire Brigade or the Union – have been expressly told of the effect of a decision. It would seem to me to be absurd to suggest that any rights of privacy might stand in the way of the imperative need for the Fire Brigade to ensure that these proceedings are transparent and also that their effects are properly learned. Otherwise, a large part of the process will have become worthless, even though its processes are open to the public (subject to the right of the presiding member to control its process). It is in my view clear that the Tribunal operates as a statutory tribunal of what used to be called, in the old language, a quasi-judicial nature, and therefore in my opinion it is clear that no rights of privacy can stand in the way of the obligation of the Fire Brigade to discharge its statutory duties by ensuring that the statutory processes relating to discipline in a public body are properly earned out to the best effect. Something needs to be settled about this as soon as possible. I do not see that there is any real issue. In R. v. White (1963) 109 CLR 665, the Full High Court ruled that in performing its duties to hear discipline cases imposed under the Public Service Act, neither a chief officer nor an appeal board acts as a court of law exercising a judicial power of the Commonwealth-each sits as an “administrative tribunal” maintaining the discipline of the Commonwealth Service in the manner prescribed by the law. That judgment (of Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ) is clear authority in my view that the CEO or his delegate healing disciplinary charges under the MFB Act sits as an administrative tribunal to maintain the discipline of the Fire Brigade. Such a tribunal must come within the quasi-judicial category referred to in the privacy legislation.

Compelling Evidence

  1. In one case I was asked to issue summonses to compel The MFB made the request which was opposed by the defendant. (I indicated that the union should be slow to oppose this kind of thing because they may need it in the future.) I ruled that there is no power at this level to issue subpoenas although it appeared that there was such a power in the appeal body. This is plainly an anomaly, and plainly a bad anomaly as it may seriously affect the capacity of this Tribunal to carry out its function. This  was  shown  by  the comical difficulty in obtaining what was critical evidence from the police in one case (although  the  delay  in  obtaining  that  evidence meant  that  other  forensic evidence of even more importance was obtained). In my view it is vital that the Tribunal be able to compel evidence – otherwise it may well be involved in the administration of an injustice. We customarily apply that kind of phrase to what happens if an accused person cannot get proper assistance to protect their rights, but it must also apply where those in charge of administering an essential service which may have an effect on the lives of many hundreds of people, do not have the appropriate equipment to do their job. If we talk of firefighters not having proper fire-fighting equipment we would be talking about a very serious issue. We are talking about an issue that is no less serious in saying that this Tribunal does not have the right equipment to do its job.

Appeals

  1. It would in my view be appropriate for the Fire Brigade to have a right of appeal as well as for the defendant. As I have remarked in the course of a number of cases, we are all capable of making mistakes – even CEOs and their delegates. Even putting mistake to one side, some of these issues might provoke clear differences of opinion and where it may be appropriate to have the issue tested on appeal. At the very least the appeal body should have the capacity to increase the sentence. This is now a commonplace in appeals in the area of the criminal law and for obvious reasons it should be available here to the appellate body.

Familiarization

  1. I have been much assisted on two occasions by observations or evidence of Mr. M [charging officer]. I also learnt something from what Mr. A [a union official] told me about the psychological effects of traumatic incidents on members. I think I could do with some more familiarisation with the operations and processes of the Brigade and I will discuss this also with the appropriate people. I might also say that I think it might be appropriate from time to time if some officers of the Brigade attended at parts of the hearings to see what the process entails, and with a view to putting some backbone back into the process.

Rulings of Substance

l7. I am setting out in the Schedule to this memorandum verbatim extracts from various decisions or notes which in my view are precisely the kind of matters that need to be given full publicity within the Fire Brigade-if for no other reason than to try to ensure that the discussion of these matters is at least informed. It is also necessary for members to know what is going on because a tribunal is entitled to proceed on the footing that they have been told of what the attitude is to certain matters-for example, that pornography on computers is clearly a sackable offence. The verbatim extracts from the decisions are under the following headings:

Nature of Proceedings

Functions of Brigade

Discipline in the Brigade

The Role of Lawyers

The Need for Discipline

The Responsibility of Rank

No Settling Disciplinary Charges

A Command Force

Firefighters Hold Positions of Trust

Conflicts of Interest

Dismissal

Principles of Penalties

Industrial Issues

Relevance Wording of Charges

Duty of Integrity

Sentencing

Nature of Disciplinary Proceeding

Fixing Penalty

Co-operation Unions

Orders

Misconduct Off the Fire Ground

Free Speech

Industrial Consequences

Divided Loyalties

The Class War

Dismissal for Disobedience

Playing Games

Fixing Penalties.

  1. It remains I think for someone to prepare short summaries of the decisions with key I will endeavor to do this for the future.
  2. I am happy to discuss any of the above with representatives of either side, either together or separately.

Geoffrey Gibson

17 September 2003

METROPOLITAN FIRE BRIGADE EXTRACTS FROM DECISIONS

NATURE OF PROCEEDINGS

The hearing takes place under an act but it is not a court process. It is not a criminal hearing or trial.

A member of the operational staff is responding to an allegation made by the charging officer. They are the people who matter in the process. The lawyers are there to assist. They should try to keep out of the way and they should avoid ‘Lawyerising’. Lawyers have a statutory right to represent members or the charging officer; they do not have the right to hijack the process.

They are encouraged to be up-front, direct, and to get on with it. Repetition and circumlocution are not welcome.

The rules of procedural fairness (or natural justice, or due process) mean that the member must get a fair go.  Most Australians understand what this means and it should not be necessary to refer to what the judges have said about it. (The one thing the judges have made clear is that what amounts to a fair go depends on all of the circumstances in each case.)

When a date is fixed for hearing, the lawyers for the charging officer and the member should confer about ways the hearing might be shortened or expedited. They should also discuss, off the record, what range of penalties the charging officer will recommend if the charge is found proved.

In most cases the parties should not need a ‘directions’ hearing.  The lawyers should co-operate to resolve the kinds of issues that excite other lawyers in court proceedings. The hearing officer will usually be available to hear the parties or their lawyers in his room on the day on which he is notified of any dispute the lawyers wish to refer to him.

Once a matter is scheduled to be heard by the hearing officer, it should not be compromised without his involvement and approval.

Lawyers should assure themselves that they are fully and directly instructed so that they can properly represent the interests of their client. Lawyers for the member should be assured that the member understands the possible consequences of the various courses of action open.

Although the proceedings are not criminal charges, counsel has suggested that they are like criminal charges. It may be argued that the principles of sentencing developed for the criminal law should apply to determining penalties here. For example, the penalty may be reduced if there is a plea of guilty. Putting to one side the contractual obligation of the Brigade and members to co-operate in the performance of their duties, there might be thought to be obvious forensic advantages from a member being seen to assist both the investigation and the hearing process – or at least not being seen to hamper it. If a member has either a complete answer, or no answer at all, is there any point in getting off side with the investigators or the hearing officer?

One legal approach to be avoided is that of undue legalism. ‘A strict and complete legalism’ was the famous description given by Sir Owen Dixon to his approach to the technique of the High Court. There are at least three things to note.  First, this forum is about as far removed from the High Court as you could get in this country. Secondly, its object was to keep politics out of that court; the reverse result may apply here when strict legalism is invoked. Thirdly, it has now been repudiated by the High Court – they say they have to face facts and not pussyfoot around. However that may be, the technique of Sir Owen Dixon, the most refined jurist this country has produced, will rarely be appropriate for this disciplinary process.

(A Guide to Disciplinary Proceedings for Members and Lawyers, 27 February 2003.)

FUNCTIONS OF BRIGADE

Quite apart from its place in the statute books, the Metropolitan Fire Brigade of Melbourne has a long and proud history. So it should. It has a very big job to do. It is there to look after a lot of people. It is an essential part of a large modem city. At any one time there might be three million people depending upon it.

The people of Victoria are entitled to expect that the Brigade and its officers and firefighters will carry out their functions properly. This is not less so when the City of Melbourne, in common with the rest of Australia, is subject to the threat of terrorist attack. We do not know if this will happen, but if it does, it is likely to require the Brigade to perform to the very optimum of its capacity. In addition, rural firefighters are currently looking to the end of one of the most difficult and dangerous summers ever. Not just by tradition, but by force of circumstances, firefighters are used to living on the footing that they may have to confront a crisis at a moment’s notice.  The truth is that a firefighter holds a-position of trust. People put confidence in their fire brigade, and that confidence must be respected.

DISCIPLINE IN THE BRIGADE

The Act is very strong on the subject of “Discipline”. The Parliament has made guilty of an offence members of the operational staff of the Brigade who are either negligent or careless in the discharge of their duties or who are inefficient or incompetent (where that inefficiency or incompetence arises from causes within their own control). It is not often that people are subjected to prosecution under the criminal law for carelessness or inefficiency, but the need to maintain the operational efficiency of the Brigade is distinctly recognised by the Parliament. These are statutory obligations.

It is well known that legislation relating to Occupational Health and Safety is designed to impose serious sanctions on a wide range of conduct. This is because the legislation is concerned with health and safety. Health and safety are prime concerns of the Metropolitan Fire Brigade and it is for that reason that legislation relating to the Brigade’s efficiency and competence contains the sanctions that it does.

It is very important that these duties arise as a matter of law – they arise by act of Parliament. They are not matters for contract, much less negotiation.  They are not to be set at nought by some bargain, pact or award. They can only be varied by the Parliament that created them (and some would find it hard to see in the present climate any ground on which a government might ask the Parliament to reduce these duties).  The Metropolitan Fire Brigade is not the -Australian Anny, but nor are we talking of an entity like BHP or Coles Myer, a mere public company run for profit that can strike what deal it wants relating to disputes with or complaints about its employees.  We are talking of a statutory body which owes statutory duties to the people of Victoria.

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 disciplinary 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.

THE ROLE OF LAWYERS

One great principle of the English law, said Dickens in Bleak House, is to make business for itself. That principle is certainly alive in this jurisdiction.

Certainly I would have thought a competent Magistrate would expect to deal with three or four of these types of case in a morning and two or three in an afternoon. I would expect that with assistance from lawyers wishing to get to the point, rather than debate legal issues at the periphery, we would have a good chance of getting through all of these matters in a day or not much more. We could certainly do everything we could to alleviate the concern of those firefighters that arise because these issues are still alive.

I should say why I am concerned about this and other adjournments.  As I said, I have yet to see a defendant. This is an appalling reflection on this organisation. It should be crystal clear, if it is not now, that defendants should be present at their hearing unless they are specifically excused by me in advance or have good evidence that they are incapable of attending. The requirement to attend the hearing constitutes a direction given in the course of employment and a failure to obey that direction could lead to serious consequences. Part of the problem, as it seems to me, is that there has developed a culture that firefighters can leave these things to their lawyers and not bother to show up themselves. These proceedings really are between the charging officer and the officer or firefighter who is under charge. The lawyers arc only there to assist. If firefighters think the lawyers are principals in what goes on, they should try asking them to pay the penalty or accept the pink slip when it is imposed.

More importantly, we are yet to get anywhere near an inquiry into what these cases are about. Lots of money is being spent on lawyers but little is being done to advance the process of getting rid of the list. It is the experience of most people that a picnic for lawyers is bad news for everyone else and nothing I have seen suggests that any of these cases constitutes an exception.

THE NEED FOR DISCIPLINE

Most importantly, we are talking about discipline within the Metropolitan Fire Brigade. Those reasons can be taken to be incorporated in these. The following propositions appear to me to clear enough.  We are in some sense I have never fully understood already involved in a war, a war against terror. It looks like we will shortly be involved in a shooting war.  However that may be, it looks like the risk of our being the subject of a terrorist attack is increasing and will increase. Certainly I do not think the Board could proceed on any other basis.  The MFESB will play an essential part in responding to any terrorist attack, as it does in respect of other emergencies.  Discipline is essential to the proper operational efficiency of a body like the MFESB.

The MFESB has to have a discipline enforcement process in order to maintain discipline.  The discipline enforcement process at the moment is simply not working at all because of the matters 1have referred to above.

It follows, I think, that the ordinary member of the public might think that until this disciplinary process is made to work, there is a real risk that the operational efficiency of the MFESB will be reduced, as will be its capacity to respond to the kind of threat for which it exists. These are things that worry me very much. I do not wish to labour the point I made [elsewhere], but these procedures are set out in an Act of the Parliament of Victoria. By reason of my appointment, I have the responsibilities of the CEO. We are talking about statutory obligations, both of the CEO and of all operational staff. As I said, statutory obligations are not matters for contract, much less negotiation. Gone are the days when this kind of thing could be swept under the rug or put to sleep with a deal. The process laid down by the Parliament must be executed; furthermore, it must be, and be seen to be, transparent. Once the jurisdiction of the CEO or his delegate under the Act is invoked by the notice of the charges and their hearing, it is not possible for those charges to be in any way compromised except with the sanction of the CEO or his delegate after an appropriate hearing.  There is no such thing as an adjournment, withdrawal or dismissal by consent.

THE RESPONSIBILITY OF RANK

What is pornographic or obscene may be a matter of impression. As I remarked at the hearing, on the day when hostilities commenced in the second Gulf War, a lot of people working in the city would be going home that night to stay glued to the television watching the fruits of western civilisation and technology deployed, as some would see it, in the inevitable destruction of innocent people, about as obscene an exercise as you could get.

But some of the material was on any view pornographic, and we are not really talking about pornography. The real issue is trust. As I said, the offences took place over a prolonged period and contrary to express instructions given and acknowledged. The conclusion drawn by the Board is that Mr X is not to be trusted in his present position and should be dismissed.

There is obviously a lot of force in this position. Mr. X is at a level – that of Inspector – where he cannot, as his counsel acknowledged, say this was mere recklessness. Mere recklessness may well be enough to get an Inspector dismissed. But I think what we are looking at are errors of judgment and the question is whether they are such that there is no alternative but for Mr. X to be dismissed.

I should be careful about this. We all make mistakes.  Lawyers make mistakes.  That is why they have insurance.  Judges make mistakes.  That is why there are courts of appeal. Dictators make mistakes. That is why there are firing squads. And I might add that Presidents and Prime Ministers make mistakes – but when you get that high up, what you can get in return is a war.

I have to consider, therefore, the significance of this sustained error and the appropriate punishment. As I have said, it is of much greater significance because of the rank of Mr. X. The higher the rank, the more judgment is called for. The higher the rank, the higher the penalty if the officer is involved in misconduct.

But dismissal in the context of employment is like gaol in the context of crime. You do not go to gaol on a first offence that does not involve violence or dishonesty or a threat to safety. The offences Mr. X has been guilty of rank well under such offences and in my view, for the most part, they would rank under offences involving discrimination against a person on the ground of sex or political belief or membership of a trade union.

In terms of deterrence, I  do  not  think  that  there  is  a  significant  risk  that Mr. X will offend again. I have warned him in terms that he understood that if anything like this happened again he would be out of here so fast his feet would not touch the ground, surrounded by people in uniform of a different type.

Then there is the need to deter others. Let me make it clear, if it is not already clear, that any kind of abuse of computer facilities, particularly one involving pornography, is a sackable offence, and that the next person found guilty of this kind of conduct will be on express notice that dismissal is the most likely result. I recommend that something to this effect be placed on the warnings.

NO SETTLING DISCIPLINARY CHARGES

I accept the submission of senior  counsel  for  the  Board  that  the  statutory scheme evidences the view of the Parliament that the maintenance of a competent, efficient and disciplined operational force  is  vital  to  the performance of the functions of the MFB and to the maintenance of public confidence in the whole fire prevention and response system. I refer to what I said in [another case] on 26 February 2003 on this issue on the need for discipline generally. The scheme also shows, in my opinion, a clear intention on the part of the Victorian Parliament that issues of discipline in the operational staff be dealt with at the highest level within the MFESB – by its CEO (or his delegate). – with immediate access to all of the levels of knowledge required properly to determine issues of discipline in the fire service. The CEO has his own designated statutory accountability and in this legislative scheme, it is not all surprising that the Parliament has made the CEO responsible for the enforcement of discipline.

In my opinion, when you interpret the dispute resolution clause according to the usual rules of interpretation, the result is that any disputes or grievances that may arise from the bringing of a charge under the Victorian Act are not disputes or grievances within clause 12.1. The clause indicates in its terms that the procedure it is laying down “shall   be followed dispute or grievance. In other words, the idea is to get a settlement. In a loose sense, but only a very loose sense, disciplinary proceedings may be compromised by some agreement between the, but rules on the proposals by making findings and giving directions to dispose of the charges. You cannot have a “settlement” of the “dispute” as such.

In my opinion, the only way you can achieve a “satisfactory resolution” of the issues raised by a charge under these provisions is for the statutory officer to hear them and determine them as expeditiously as possible. It is the evident object of this kind of scheme that these matters be determined properly, transparently, and at a high level, and so that efforts to dispose of them by deals or sweeping them under the carpet are put to rest. In my view, as a matter of ordinary construction, clause 12.l is inappropriate to deal with any dispute that may relevantly be said to arise from an invocation of the discipline provisions of the Victorian Act. I might also refer to s.l70LT(8) of the Commonwealth Act. If it is hard to “settle” this kind of “dispute”, it is even harder to “prevent” it.

A COMMAND FORCE

In the course of argument, Mr. Bell QC reminded me that the Board is a statutory body with statutory duties.  He said that there has to be a force under command; the command system has to be enforced; there has to be a clear and efficient system of discipline.

Mr Bell submitted that the contentions of the defendants would impede the proper working of the discipline system and ultimately impede the Board from discharging its statutory duties. I have a very clear view that no statutory corporation in the position of this Board – someone running a fire brigade – could responsibly allow responsibility for discipline to be taken from the CEO and left up to negotiation case by case. Democracy and anarchy may be bliss if you could afford them, but a fire brigade cannot.

FIREFIGHTERS HOLD POSITION OF TRUST

In my opinion, there was no evidence adequate to warrant a finding that Mr. B was unfit to work, much less unfit to appear in answer to these charges, on 21 March 2003.  Indeed, if he was fit enough to make the sort of charge he did, he should not be heard to say he was not well enough to back them up, and to participate in this process and in his work. Some of the medical “certificates” produced to me have not been worth the paper they are written on. I have to be impartial; I do not have to gullible.  People have been putting propositions to me that indicate they think I have come down in the last shower. (Imake that observation about lawyers as much as firefighters.)

It had been apparent throughout to Mr. B that this case is a serious one for him.  On the first hearing day his counsel said, “This is a very serious charge,” and that “my client faces the possibility of being dismissed” (even though Mr. Langmead had said he was not instructed about the case itself.) It had not yet occurred to me that this might be a dismissal case, but when Mr. Langmead said this I understood why. Firefighters hold positions of trust and a conviction for dishonesty must immediately raise a serious issue; some would think that the failure to notify raises an issue that is no less serious.  (I refer to what I said in [another case] on 26 February 2003). The conduct of Mr. B had not made any of these charges any less serious.

However, it should also be said that the fact that the charges are serious does not mean that they should take a long time to be dealt with, or that either party has to engage in a form of trench warfare to get there.  Mr. B has had full access to the best legal advice that money can buy in this country.  On the basis of simple allegations that it would be difficult to refute, and which were not refuted in the record of interview – namely that Mr. B was convicted and did not report the proceedings, the appropriate legal advice – I am talking about the criminal law, not industrial law — would have been to give a complete explanation of the past and complete assurances for the future.  A plea to that effect would have taken an hour or two, or longer if required.  Depending on the quality of the explanation and assurances, Mr. B would have had a reasonable chance of retaining his employment.  Mr. B apparently chose not to adopt that course.

CONFLICTS OF INTEREST

The difficulties revealed in this case show why it is essential for the defendant to be present during all of these hearings, no matter how formal the occasion may be.  Defendants are required to be there in response to orders.  Just as importantly, I must be personally satisfied that they know what is going on.  The only times the defendant himself has turned up, the case has been promptly determined and, as it happens, contrary to the express wishes of the Board.

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.

DISMISSAL

Finally, I wish to come back to the penalty in this case. This is the second case to be heard by me on the merits. In each of them, the Charging Officer on behalf of the Board recommended termination, but my job is to hold the line between the Board and firefighters or officers who fall foul of it. Neither defendant has been dismissed. In each case it was entirely appropriate for the charges to be laid – convictions were obtained and very significant penalties were imposed. Moreover, I have indicated that for the future, people found guilty of the same kind of conduct using computers for pornography or being guilty of dishonesty – will most likely be dismissed. That said, it is a very, very strong thing to take away someone’s livelihood. As I mentioned in the other case, it is a little like sending someone to gaol in the criminal context where -that  only  happens  first  up  in  a  limited  category  of  offences. The case for dismissal has to be both clear and convincing.

PRINCIPLES OF PENALTIES

We are talking about penalties for offences rather than sentences to be imposed for breaches of the criminal law, but in my view the law relating to sentencing, set out in the Sentencing Act 1991, does provide guidance. That law says that the only purposes for which sentences may be imposed are:

“(a)                                  to punish the offender to an extent and in a manner which is just in all of the circumstances; or

  • to deter the offender or other persons from committing offences of the same or similar character; or
  • to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
  • to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

to protect the community from the offender; or

a combination of two or more of those purposes.”

There must obviously be an element of punishment in this penalty, but only to an extent and in a manner “which is just in all of the circumstances … “. There is in my view no basis for concern about Mr. W offending in the same way again but there has to be an element of deterrence for others. I do not think we are concerned with rehabilitation or protection of the community from Mr. W, but there must also be in line with the general deterrent aspect, a condemnation by this Tribunal of this sort of conduct. It is common to talk of this last matter as vindicating the law or the victim (as is said to be the case in libel actions where the person making the claim seeks a vindication of their character). But vindication of the law or the MFB must not be allowed to degenerate into vindictiveness against the person responsible for the offence.

In order for the punishment to be “just in all of the circumstances” it must be proportionate to the offence. The essence of the offence is not in my view that Mr. W caused the damage to the vehicle or caused the conduct which made the MFB look stupid. I do not regard the crash as being the natural and probable consequence of his conduct, much less its inevitable consequence. Bad driving leading to an accident may well have been foreseeable but there would still be an issue about causation even in a civil claim for damages against Mr. W. The essence of his offence is that he allowed Mr. A to drive the vehicle, not that he permitted or much less caused the accident. As I remarked earlier, he would have been entitled to think that it was significantly more likely than not that Mr. A and he would have been able to negotiate the course without any significant problem.

We are, it must be remembered, talking about an error of judgment, and not a deliberate act involving greed or malice;  greed or malice were not present  in the heart of Mr. W when he allowed a mate to take the wheel of a fire truck near the end of a long day of looking after kids  with  cancer.  As I remarked at the bearing, we all make mistakes. Lawyers make mistakes, that is why they have insurance.   Judges make mistakes, that is why they have courts of appeal. The High Court of Australia can make the biggest mistakes of the lot but there are problems in doing anything about those.

The MFB sought the dismissal of Mr. W. Would this be a proportionate or fair penalty in the circumstances I have described? Is it fair to a man who has given twenty years’ service to the MFB and still has two children at home, to dismiss him for an error of judgment made while he has been trying to do something  for kids suffering from  cancer,  most  of  them, as I have said, terminally? It does seem to me that people in this country have shown a worrying lack of compassion for those who are suffering, and it would seem wrong deliberately to hurt someone like Mr. W who made a mistake while doing what he could fairly and decently to show such compassion.

The MFB is entitled to be vindicated and I think I am obliged to vindicate the law, but is it necessary to achieve this result to inflict this level of punishment on Mr. W? He is now 44 years of age. I think I may say from my own experience of affairs of the world that that is not a good time at which to be fired. For all I know firefighters might be like lawyers and be useless at anything else at that or any other age. Firing a firefighter at that age might be the equivalent of throwing him on to a scrap heap. That is a very hard thing to do, not just to the breadwinner, but to everybody else in his family, and I doubt whether that level of damage to a life could ever be warranted by any amount of damage to something inanimate like a fire truck.

Of course Mr. W must be accountable for what happened. But what does that mean? It certainly would not mean that it would be sensible in the circumstances  for the  MFB  or  its  insurers  to  ask him  to  pay  for the  damage.  Putting possible statutory intervention to one side, if anyone asserted that sort of right to recover the damage to a vehicle caused by alleged negligence of a firefighter in command of it, the result would I think be that there would be no firefighters on duty the next day. It is plain that Mr. W could not be made to account for what has happened out of his pocket. Does that mean it is appropriate to make him account for it out of his future and the future of his family?

Counsel for the defendants on a number of occasions sought to go into evidence about the practice of the MFB in relation to the attendance of MFB personnel at charity functions and of the practice of MFB on other matters that might be said to bear on this accident. It seemed to me then, and it is even more apparent to me now, that these issues were irrelevant to the charges that were laid and to what was in substance the defence of the defendants to those charges. This Tribunal may not be formally bound by the rules of evidence but that does not mean that I can disregard relevance, much less logic.

INDUSTRIAL ISSUES – RELEVANCE

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.

WORDING OF CHARGES

This last complaint is I think one of dealing with the kinds of tactics that lawyers might employ in this kind of process. I do not think the traffic is all one way. I think something has to be done to simplify the charges. The practice at the moment is to lay as many charges as possible, in terms which used to be called duplicitous, and in language as closely conforming to the legislation as possible. This may I suppose be the result of the kind of paranoia to which all lawyers are reduced nowadays out of their fear of putting a foot out of line on matters of formality.

But I do hope it is clear that this Tribunal is not one that is bound by matters of formality and technicality. I do not think I can readily envisage a charge being dismissed merely because it has not been framed in the appropriate way as long as the defendant has been properly informed of the substance of the charge and has  had  an  appropriate  opportunity  to  deal  with  it.   I would much prefer to have the charges expressed in English with a reference to the relevant law and with as few alternatives as possible.  This is a matter not simply of fairness to the defendants – and we should not under-estimate the suspicion which most people outside the law have for the lawyers and their processes – but in order to make the process of this Tribunal function sensibly and in the interests of the taxpayers. It does not look good that these proceedings start with a blizzard of forensic inconsequentiality.

I should mention two of the windmills at which counsel for the defendants tilted in the course of his pursuit of ways to criticise the MFB. One was the suggestion that the MFB had no protocols in place on how members should behave at charity functions. It is in my view fanciful to suggest that any such protocol may have produced a different result at Avalon  Airfield,  but  I think that management should give careful  consideration  to  preparing  such  a protocol. It is obvious that these events occupy an important place in the calendar of the MFB and its personnel and it would be as well for the future for there to be some charter to which reference can be made if this kind of issue should take place again.

Another issue was that Mr. Burke gave evidence that he was unable to get information about a certain policy of the MFB because it was on the MFB Intranet and he had not been trained to read the Intranet. I suspect that the relevant policy dealt with cars in the fleet of MFB and was even more irrelevant to this case than any other of that kind of evidence. It also showed a tendency of people to say that before they can do anything they have to be trained by the MFB for that purpose. The MFB is not responsible for teaching these people how to read and write. The capacity to deal with the Internet, and a corporate Intranet, is now part of what most people would regard as literacy. Certainly, I think most taxpayers would regard a senior station officer who could not read his Intranet as being functionally illiterate. Something should be done about this immediately because any incident that occurs because people are in substance illiterate could have awful consequences for them and the MFB.

DUTY OF INTEGRITY

It was also said that he had not been given any training, and that there was no protocol for this use of the e-mail facilities.  Mr. Z is obviously adept at mechanically applying the facility and I do not think you need training in how not to abuse corporate property.  The essence of his offence is that he used public and corporate property for private use and to further personal objectives. In an appropriate case, an officer of a public company could be looking at being prosecuted under the Corporations Law for this kind of conduct. But an errand boy knows when he is making a mistake or abusing his position just as much as does a company director – their duties are not materially different.

The Board said that because of his stupid and indulgent behaviour a clear message should be given to the rest of the Brigade and that he should be demoted for six months. His counsel said he would submit to counselling. I have some concern about the utility of that course. After further discussion with counsel I ordered as follows:

Charges 1 and 2 are withdrawn.

On Charge 3  the  defendant  is  found  guilty  and  on  the  defendant undertaking:

To pay $500 to the Metropolitan Fire Brigade to be paid to  a charity nominated by me by payments of $50 a month commencing on 10 July 2003;  and

To be of good behaviour in the meantime;

I adjourn the further hearing of Charge 3 to 10 June 2005.

In effect, Mr. X is on a bond.  It is understood that the charity is a Royal Children’s Hospital charity that the MFB assists.

SENTENCING

That left the question of what was the appropriate penalty for Mr.Y. He has given twenty three years of service. He struck me in the witness box as a conscientious, loyal and dedicated officer. I think he has been worried sick by this experience. I am satisfied on his evidence that he had a genuine belief at the time that what he was doing was in order. I also accept that he now says he would not do the same thing again and that he very much regrets what has happened.  I am satisfied that there is no risk whatsoever to the Brigade or the public in Mr. Y remaining where he is.

The Brigade initially sought a reprimand and a fine. It has been suggested that he might have some counselling and I have asked Mr. M to look after that.  Mr. Y responded sensibly and co-operatively from the beginning. He gave full and frank answers at his interview.  He was equally frank and sensible during the conduct of the hearing, as were his representatives.   They did not seek to evade responsibility.  Those things weigh significantly. In all of the circumstances I think justice would be done if I directed that the proceeding be adjourned for twelve months and, unless something adverse happens in that time, be dismissed at the end of that period.  So that I am crystal clear on this, the effect of this direction will be that at the expiry of that twelve months term, there will be no adverse note on the record of Mr. Y at all.

NATURE OF DISCIPLINARY PROCEEDING

I want to make a couple of comments about the course of this proceeding. This might, in my view, be about the first time this Tribunal has proceeded properly as a disciplinary tribunal. The issue that was raised was one of substance for the proper running of the Brigade. There was a potential legal argument of some significance. Had Mr. Y gone badly in evidence, the consequences could have been very severe. Many witnesses were on call, on each side.

But the proceedings have been dealt with in what I regard as a timely fashion. The incident took place on 4 April 2003. The charges were laid on 10 June 2003. As I remarked, Mr. Y responded fully and candidly during the interview. That meant that the Board and I knew what the case was about before it started. Mr. Y was represented, and I may say supported, by two other officers who presented his case with clarity and conciseness. They were properly keen that the right lessons should be learned from this incident.

In a case like this it is necessary that the Tribunal have assistance at the highest level as to the relevant procedures. I got this from Mr. M, having invited counsel for the Board to have Mr. M address the Tribunal directly. After a clear and emphatic statement of the importance of the case by Mr. M, Mr. Y and his advisers saw fit not to push technical arguments, but rather preferred to face the reality of what he had done, or not done, in an endeavour to get the matter over with. As I have indicated, that weighed significantly with me on the question of penalty. I also think that lawyers tend to forget the strain that this kind of proceeding can create for people, and that most people just want to get it over with.

There is another aspect to this case.  Disciplinary proceedings are not just about  whacking people or pointing the finger. They are about maintaining standards. It will frequently be necessary to get some form of ruling or recommendation. If you wanted to be snooty about it, it might be like getting a ruling from the Ethics Committee  of the Victorian  Bar. This kind of process is not only entirely proper but absolutely necessary in an organisation whose discipline and standards are vital for public safety.

Even apparently trivial “incidents” may have to be investigated (although not necessarily the subject of a formal proceeding at the conclusion of the investigation). About twenty years ago, I acted for the Commonwealth agency responsible for civil aviation safety. They were worried that the Fol legislation would lead pilots not properly to report on “incidents”. An US expert instructed me that unless you get full reports on incidents, you are not able properly to prevent accidents, and that in any event the distinction between an incident and an accident is in itself usually just an accident. It is hard for an outfit like this one to say that it has been too careful.  In truth this Tribunal can be seen as part of an audit process, part of what makes this Brigade accountable to its owners.

I commend all of those concerned in the presentation of this case which was potentially a nasty and tricky case, but which was I think resolved sensibly, and before lunch on the first day.

If there is a moral of this case, it is that firefighters flirt with the rules not just at their own risk but our risk, and that they should never, ever flirt with a rule as fundamental as one about responding to an alarm of fire.

FIXING PENALTY – CO-OPERATION

The impression I get from all that I heard is that these men are very sorry for what happened and have adopted a responsible and sensible approach to the incident to ensure, so far as possible, that they have apologised for it and that it does not happen again. I have not been subjected to any attempt to avoid responsibility or to any “lawyerising” on the periphery. I do accept what their officers have said, that there is a minimal risk of the conduct being repeated. I think a fine of $2,000 would not be proportionate to the offence that has been committed. If this matter were before a magistrate, then those advising them would I think be reasonably confident, and rightly so, that they would be given a bond. I think the needs of the Brigade can be dealt with by proceeding in the way which I propose. I should repeat that if I do get any roughheads here who are found guilty of fighting with no extenuating circumstances, they can be looking to pay a fine of at least the equivalent of what it has cost the Brigade to keep them on duty on full pay. That may well run into thousands of dollars. But, for the reasons I have given, I decided on obtaining the assent of the defendants to adjourn the proceedings for twelve months subject to their giving two undertakings, first that each would pay $250 to the Bluey Day charity, and second to attend such  counselling as may  be  nominated for them by Mr. Z over the next twelve months.

Finally, apart from one case where the defendant was unrepresented, this was the first occasion we have had where the defendants have not been represented by a lawyer. That should I think be possible in most straightforward cases of a plea of guilty like this. There is of course a saving to the union if this result can be achieved. It would be good also if in future the parties could liaise with each other sufficiently far in advance of the hearing to see if such a course is being followed on behalf of the defendant and to see if the Charging Officer can also dispense with legal representation. I should say that if that can be done, that would also be a significant factor in the sentencing process.  It would be good to keep legal representation down to  a  decent  minimum  although  I acknowledge that you could get an argument about  what  is  a  minimum,  let alone what is decent.

UNIONS

Trade unions provide essential public services. This has been a recognised part of our legislative history, both state and federal, for more than a century, and has been part of our social fabric for longer. The interest that we all have in the proper functioning of our trade unions  goes  beyond  the  fact that  they  are  there  to  protect  and  advance the interests of their members. Their place in the natural scheme is recognised and endorsed by governments of both colours at all levels. They are essential to the working of this economy and this country as we know them.  Without trade unions, our economy would not work or be tolerated, and would certainly fail.  Too many Australians forget their roots and forget just how essential trade unions are to this country and how essential it is that each of them be properly able to carry out its functions.

Unions, both here and overseas, have historically seen themselves as pitted against corporations or governments bigger and stronger than they are. They therefore call for unity among their members. The claims of faith and the ties of comradeship may not mean a lot at the corporate end, but they are everything at the union end. Disunity is weakness. Unity is strength.  A member who seeks to subvert the United Firefighters Union in its essential functions of protecting and furthering the interests of members is likely to be seen as guilty of betrayal just as surely as someone seeking to subvert the Commonwealth in its essential functions is likely to be said to be guilty of treason. That is why the word scab is so loaded.  No greater charge can be laid against a union member.

ORDERS

This is an organisation whose command structure is recognised in its Act of Parliament, and the charges presently before this tribunal, and symbolised by its ranks, uniforms and customs. The officers were communicating to subordinates, themselves officers, on an issue of obvious importance to the Fire Brigade (and the union).   The discussion was not about footy tipping in the tearoom. Moreover, it took place in the context of an inspection, an occasion where firefighters present themselves so that the appropriate officer can satisfy himself that everything is being done by the book.  It was about the publication of an allegation that the MFB had scabs, an allegation that had to carry, and obviously had to carry, the consequences I have described.

Whatever else the signs I will refer to may have conveyed, they could be seen as evidence that the MFB cannot properly manage its affairs. Its members have turned on each other and they are allowed to show it. It is what the popular press calls a losing football team – a disorganised rabble. If the Fire Brigade cannot get its own house in order, how will it be when Osama Bin Laden calls?

It cannot be the law that an order is not an order unless the recipient understands it to be an order. Otherwise you could have a direction which was an order for one person but, to use the language of one defendant, a mere “ask” to another person. Likewise it cannot be the case that an order is not an order unless that term is used. That was the position of one defendant who then had to face the problem that in sixteen years he had never known the word order to be used to him, which left him with the conclusion that he had never received an order in sixteen years in the Fire Brigade.

As a matter of prudence, if not common sense, and if not courtesy, I would suggest that any officer who is contemplating taking further an incident of insubordination should expressly stipulate that he is giving an order, but I do not think the failure to give that stipulation – and there was a dispute here about whether such a stipulation was given – can be fatal to the suggestion that an order has been given. It would be absurd to suggest that directions given on the fire ground are not orders simply because that word is not used, and I think that absurdity continues through to places outside the fire ground.

We might pride ourselves on being egalitarian but at the end of the day, if push comes to shove, rank is there for a purpose in this Brigade and directives coming from it must be obeyed. The flip side of the counsel of precaution that I have given to officers is that subordinates in doubt about whether a request is an order should proceed on the footing that it is until they have resolved their doubt.

MISCONDUCT  OFF THE FIRE GROUND

It was first argued that the misconduct must be conduct that adversely affects the capacity of those involved to discharge their duties to the Fire Brigade and so assist the Fire Brigade to carry out its functions under its Act. I do not think this is right. I see nothing in the context that requires such a limitation. There are in this statutory provision creating offences express references to efficiency, competence, negligence and carelessness, as well as disgraceful or improper conduct. The example I put in argument was of a crew cruising up Collins Street in a fire truck on New Year’s Eve mooning, perhaps wishing to get home bare-arsed and faithful. That would seem to me to be definitive misconduct that would require an extremely lenient exercise here to allow the culprits to keep their job. While the incident may say nothing about the operational efficiency of the crew, it says everything about their discipline.

One of the reasons why this difficult kind of offence has to be kept, I think, is that it may suggest that there is a problem of discipline that has to be dealt with and it is quite wrong in my opinion to suggest that problems of discipline only matter if they take place on the fire ground – and there were recurrent suggestions to this effect during the course of this hearing.

Let me give other examples. Members of the SAS are drunk while on our time at their base; when charged they say everything will be okay because they will have sobered up by the time they get to the Solomons or Syria or the next sunny destination chosen for them by our government. A nursing sister is, contrary to regulations, smoking a cigar in the hospital car park; when charged by the matron he – they are both males – says everything is in order because he never smokes cigars during surgery in the theatre. As I remarked, breakdowns in discipline outside of the principal theatre of operations may indicate a problem that has  to be dealt with firmly in order to ensure that the organisation as a whole remains ready to respond when it really matters.

FREE SPEECH

It follows, therefore, that members of the union cannot claim anything like an absolute licence to say what they like just because the matter contains a reference to matters that they think are political or industrial. Whatever else the High Court has created in its constitutional right of free speech, it has not created a void in the general law just because the subject of discussion is either political or industrial.

Let me offer some examples of observations which obviously could not be tolerated.

The CEO is a cross between Hitler and Stalin.

Every union official has his hand in the till – their defence is that they cannot spell till.

Officers (Inspectors) of the Brigade are ratbags and traitors — at least Judas had the decency to give up his thirty pieces of silver.

Commissioned Officers of this Battalion have no guts – if you have to face bare steel look for a NCO.

The Superintendent of this Station is not qualified to be in charge – she is a dyke who would not know a crook if she fell over one.

The delegate of the CEO is a galah.  (Well, I suppose, they may have to let this one go through to the keeper for a number of reasons.)

For the reasons I have set out earlier, the charge of being a scab is a very strong one. What is being said here is that a whole rank of Brigade officers are the lowest of the low. In truth, it is my view that what is being asserted on behalf of the defendants here is an entitlement to denigrate and abuse every member of a rank because of industrial unease arising out of the circumstances of their appointment. The signs themselves are evidence of the breakdown of discipline. If you are going to have an offence of misconduct in an organisation founded on rank, then in my view there can be no doubt at all that this conduct would come within that offence. It would be for some a frontal assault on the constitution and integrity of the Brigade.  I should not have to apologise, and I do not apologise, for making this finding of misconduct because I am, after all, applying the law of the land.

INDUSTRIAL CONSEQUENCES

During the hearing, evidence was given of possible adverse industrial consequences of such a finding. I admitted that evidence over objection.  That is a mistake that I will not make again. It is I think embarrassing in the true sense of the tem1for a tribunal like this to receive that evidence. It is also likely to constitute a red rag to a bull or, perhaps, blood to a tiger. A disciplinary tribunal cannot be deflected from its duty by intimations of industrial unrest – but that does not mean that it has to shut its eyes to the whole of what is happening out there in the real world.

DIVIDED LOYALTIES

A couple of witnesses spoke of the divided loyalty of the men. They owe obligations to the Fire Brigade and obligations to their union and their mates. One of the defendants said that a request to bring this sign down put him in conflict with what he saw as being his duty to honour the wishes of his mates. The President of the ACTU referred to a similar difficulty.

Those who take their guidance from scripture might recall the advice to render unto Caesar what which is Caesar’s and to render unto God that which is God’s. This tribunal comes under the jurisdiction of Caesar – heaven only knows that I have no qualification whatsoever to preside over one in the other jurisdiction.

The men may have to face a difficult choice in circumstances like this, and it frequently happens that the obligations of the law conflict with what people see as the obligations of their conscience, but by and large I have to operate by and to enforce the law. (It is said that those sent to entrap Jesus were amazed at him when he distinguished what is due to Caesar from what is due to God, but I do not recommend that union members express amazement and so follow the Pharisees on this point, or, for that matter, any other.)

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.  I do not know why the point

Was pressed, bit was, and I will deal with it.  I reject it.

Secondly, there is the evidence of common sense and common experience. The MFB did not come from Mars. It depends on co-operation. How well do you co-operate with someone you hate? Until recently I was a partner in a firm that had a staff of 1,500 and a turnover in excess of $250 million (compared to a staff of about 2,300 and a budget of about $190 million for the MFB). If I had been told that a whole line of thirty managers was hated by the staff under them, I would have been terrified, not just over the capacity of the firm to deliver its product, but to survive.  I am sure that 200 other partners would have felt exactly the same.

I cannot believe that the officers and firefighters of this Brigade deserve all of this. This Brigade boasts of being a happy family and plainly it is not. The people I have met are all decent people who would not wish to remain the prisoners of history. They must believe that it is time for people on both sides to come out of the trenches dug in another century and to abandon a mind-set

 

about caste that surely has no place in this country. It must be time for the hate to stop. There are, after all, many who still believe that vengeance belongs to someone else; some see that proposition as a major premise of the new part of the major religious text in use in this country.

But even if it is correct to say that there is no evidence that the industrial strife impairs operational efficiency, as the union and the ACTU contend, does this mean that a corporation does not have to worry about industrial strife unless there is a measurable effect on productivity (a proposition not contended for by the union or the ACTU)? Such a response would be a prescription for failure in the public or private sector, and it would in my opinion be wrong – quite possibly unlawfully wrong – for those responsible for corporate governance to proceed on that basis.  Something has to be done.

DISMISSAL  FOR DISOBEDIENCE

I want to stress that whether or not that offer is accepted, it is a once-off amnesty.  If in future any firefighter is presented before this tribunal on a charge of failing to obey an order, he should attend on the footing that he will not be an employee of the Fire Brigade any longer if he is found guilty – out he will go. This is not meant as an empty statement. I have the clearest view that it is essential in this organisation for its officers to be respected and for their orders to be obeyed, and whether the context is industrial, celestial, terrestrial or just bestial, a failure to obey orders will almost certainly lead to dismissal.

PLAYING GAMES

In truth I think that what we have here is another instance of what has appeared to me in my time here to be another cultural problem within the MFB. It is that there is a tendency for people to do things by the book when it suits them. There is a tendency to legalism or literalism or verbalism that you would expect from people who relish performing as bush lawyers. People exult in subtlety. An example was the written confirmation of an order. It was seriously submitted that this could not work because there was no order in the first place. You may or may not be able to interpret a tax statute like that – I do not think you can – but you cannot operate an emergency service by that kind of sophistry.

There seems to be a written protocol for everything:  where there is one there will certainly be reason for argument about what it means;   where there is not, that is plainly the fault of the outfit in not having invented one in the first place. I find all of this sort  of nonsense, coyness or cuteness – to be as demeaning as it is pervasive, but I want to make one thing plain – and that is that the people who  get  before  this  tribunal  because  they  have  crossed  over  the  line  while playing by the book can expect to get the book  thrown right back  at them head high.

FIXING  PENALTIES

Thirdly, as I intimated m my prev10us reasons, I think that the MFB has obtained rulings and declarations that should assist it. There were some matters in  issue  which  in  my  view  will  not  be  in  substantial  issue  again.  Most importantly, I hope that I have made it absolutely clear that people will not be able to avoid in future the consequences of their actions in a disciplinary tribunal simply by intoning the mantra “industrial”. There is no form of apartheid in this country that says there is one law for one lot of people and another law for those who find themselves in circumstances that they may characterise as industrial – whatever that may mean. It is not for me to see that these observations reach those for whom they were intended, but I will proceed in the future on the footing that anyone coming before me has been  at  all relevant times on express notice of what has been said here about these matters.

Fourthly, it is the fact that these disciplinary procedures have, for reasons that do not reflect badly on management, not been properly invoked for some time. Where you have laws that have not been enforced for a period, you can have a serious problem that the law enforcement agency may want to duck when someone says it is time to start cranking up the law again. A guy wrote a play about this. His name was Shakespeare. The play is called Measure for Measure. The duke had let slip the laws regulating hookers and brothels in Vienna.  He said:

We have strict statutes and most biting laws,

The needful bits and curbs to headstrong wills,

Which for this fourteen  years we have let slip;

Even like an o ‘ergrown lion in a cave,

That goes not out to prey  ….

There was a lot of nastiness and ill-feeling when the delegate of the duke came to enforce the laws. All hell broke loose.  The whole point of the play is that the phrase Measure for Measure may not always be the most sensible way of proceeding, as students of the Middle East, or the Melbourne underground, or the Australian industrial scene may have surmised. I have on other occasions felt the need to say to defendants that while the axe was not going to fall on them, it would fall on anyone else in a similar position, and this is a factor which I think is appropriate to consider in this case, not least because of the evidence about the prevalence of these signs at the time of the events giving rise to these  charges.

Fifthly, these men have apologised for what they did. In the context of a decades old class war I regard the giving of an apology as very significant. I have spent a significant part of the last thirty years advising people on giving or receiving apologies in another context, and I know lawyers fret a lot about the words used, but at the end of the day what counts is the fact that someone has been prepared to say, and say publicly, “I am sorry for what I did”, and has given an assurance that they will try to avoid this kind of problem in the future. It did seem to me that these men were logically committed to this course having said that had they believed they were getting an order they would have obeyed it, but experience also suggests to me that logic is not the final determinant of the actions of all of the parties in this arena. I am aware that apologies are invoked as a penal tool in military tribunals and I must say for my own part that I regard them as being a useful expedient here. For the reasons I have given, I think that the giving of an apology in this context was significant and I would hope it has been received as such.

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