I was contacted via LinkedIN and asked to comment on this order. My correspondent wrote:
I read your articles with interest and thought you may be interested in dissecting the legality of general order 3 which the Metropolitan fire brigade has introduced for its operational firefighters.
I asked for, and received a copy of the order along with these further questions:
Operational staff are reminded of general order 3 compliance whilst off duty by the chief officer.
Is general order 3 lawful in relation to ones activity and rights under discrimination laws, bullying and harassment in the workplace laws and human rights charter?
Does this general order breach other rights of firefighters?
Is it lawful to gag firefighters whilst off duty?
This includes political beliefs, association or activity whilst off duty. Given the public standing of firefighters in the community, members are often recognised and associated as such, firefighters, whether on duty or not.
I appreciate the want to protect the board, brand and standing in the community, but question whether the revised general order 3 has pushed the boundaries too far.
An internet search reveals that the United Firefighter’s Union ‘is seeking legal advice on this matter and after such … will notify members’ <http://www.ufuvic.asn.au/wp-content/uploads/2014/03/UFU-Bulletin-057-MFBs-new-general-order-no.-3.pdf>.
These questions deal with labour or employment law and human rights law. Victoria is in the rare position of having statutory guaranteed human rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic). (The position is rare as the ACT is, as I understand it, the only other Australian jurisdiction with human rights legislation, see Human Rights Act 2004 (ACT)). Victoria also prohibits discrimination on the grounds of various attributes which include ‘employment activity’, ‘industrial activity’, ‘political belief or activity’ and ‘personal association … with a person who is identified by reference to any of the above attributes’ (Equal Opportunity Act 2010 (Vic) ss 6 and 7).
The provision of the order that is causing concern is, I infer, paragraph 3.2(i) which says:
‘… an operational staff member must not:
(i) represent him or herself to any person, persons, or organisation in a manner contrary to the authorised position of the MFB. This prohibition includes where an individual is reasonably identified as a firefighter, despite the covering or removal of any MFB rank or insignia, or by otherwise disguising any uniform, appliance, equipment or facility (this includes uniform, appliances, equipment or facilities that are no longer in service or operation of have been superseded);’
My first thought is that applying the rule of ‘ejusdem generis’ (that is where there is a general list of examples, the general application of the rule will be limited to similar examples (http://legal-dictionary.thefreedictionary.com/Ejusdem+generis), then the sort of conduct that the rule is aimed at is a firefighter who is clearly acting as a firefighter but makes some poor attempt to disguise that fact, eg a firefighter who wants to say that the reason the fire is out of control is because of some MFB policy but before making that statement they remove their ‘turn out’ coat and put on a jacket. We’ve all seen officers from various services in their uniform with a non-uniform coat or jacket and it’s still pretty obvious that they are wearing a uniform. If that’s correct it would be hard to apply that to a member who’s off duty and not wearing any uniform items. That is I would infer that the order can only apply when the person is representing him or herself as a firefighter or ‘is reasonably identified as a firefighter’ not when their position as a firefighter is irrelevant to the issue at hand.
It seems to me that the document, standing alone, cannot be contrary to the provisions of either the Charter of Human Rights and Responsibilities or the Equal Opportunity Act. Questions of whether the policy enshrined in the order is contrary to those rights and laws can only arise when there is an attempt to apply the Order. The MFB will need to take account of the fact, for example, that it is unlawful to deny or limit access to opportunities for promotion, transfer or training, to dismiss an employee, to deny access to any guidance program or occupational training or retraining or to subject an employee to any other detriment because of that employees political views or their involvement with the union (including representing or advancing the views, claims or interests of members’ of that union) (Equal Opportunity Act 2010 (Vic) ss 4, 6, 7 and 18). Further, in Victoria, people have a rights to freedom of thought, conscience, belief, expression, association (including a right to join a trade union) and to participate in the public life of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) (ss 14-16, 18)). One can imagine that Order 3 could be used in ways that contravene those rights, but it’s not axiomatic that it must or will be.
Further rights are not absolute, so the rights to freedom from forced work (s 11), freedom of movement (s 12) and freedom of association (s 16) would not be sufficient to stop an employer dismissing an employee who decided to ‘hang out’ with his or friends rather than go to work. How the various rights and obligations of an employee may be lawfully balanced is a matter for lawyers expert in the fields of labour/employment law and human rights law and would depend on the particular facts.
So, in short I can’t answer whether or not this order breaches any rights, either in the abstract or if and when it is applied. The UFU are seeking legal advice and presumably they will obtain that from lawyers with a practice in industrial law rather than emergency response law. It will be very interesting to see what that advice is, if and when the UFU make it public.