[2019] FWC 106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Application for approval of a single-enterprise agreement

Application by Metropolitan Fire and Emergency Services Board
(AG2018/1278)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JANUARY 2019

Application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016; meaning of “discriminates”; whether agreement includes discriminatory terms; whether agreement includes objectionable terms; whether terms contravene s.55; consideration of permitted matters; whether the agreement passes the better off overall test; not satisfied terms of agreement do not contravene s.55; opportunity to provide undertakings given.

Chapters	Paragraph
1	Introduction and background	[1]
2 2.1 2.2 2.3 2.4 2.5	Issues in contest - summary Unlawful terms objection Terms that contravene s.55 objection Matters pertaining objection Better off overall test objection Whether undertakings can cure the matters identified?	[7] [7] [17] [19] [21] [25]
3	Uncontroversial ss.186 and 187 requirements and mandatory terms	[28]
4 4.1 4.1.1 4.1.2 4.1.3 4.1.3.1 4.1.3.2 4.1.3.3 4.1.3.4 4.1.3.5 4.1.3.6 4.1.3.7 4.2 4.2.1 4.2.2 4.2.3 4.2.4 4.2.4.1 4.2.4.2	Unlawful terms The discriminatory term point – s.195 The impugned terms of the Agreement Meaning of “discriminates” in s.195 Are the impugned terms discriminatory terms? Characteristics of part-time employees Does the Agreement prevent part-time employees performing operational firefighting duties? Are part-time employees impeded in their career progression and precluded from other benefits? No provision for part-time FSCCs and Senior FSCCs Statutory declaration of entitlement under s.65 of the Act Part-time employees require UFU agreement Impost imposed on MFB for part-time employees The objectionable term point The impugned terms of the Agreement Meaning of objectionable term Contentions – whether impugned terms are objectionable terms Are the impugned terms objectionable terms? The part-time employment provisions Provisions said to discriminate between employees who are union members and employees who are not	[52] [52] [53] [64] [175] [182] [186] [211] [221] [228] [230] [241] [246] [247] [249] [263] [269] [269] [273]
5	Whether terms of the enterprise agreement contravene s.55	[281]
6	Permitted matters	[302]
7	Better off overall test	[333]
8	Conclusion	[355]

Abbreviations
ACFO	Assistant Chief Fire Officer
ACFO Agreement	Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010
Act	Fair Work Act 2009 (Cth)
Agreement	Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016
AHRC	Australian Human Rights Commission
AI Act	Acts Interpretation Act 1901
AIG v FWA	Australian Industry Group v Fair Work Australia [2012] FCAFC 108
Award	Fire Fighting Industry Award 2010
BOOT	Better off overall test
CFA	Country Fire Authority
Commission	Fair Work Commission
Constitution	Commonwealth of Australia Constitution Act
EO Act	Equal Opportunity Act 1984 (Vic)
FSCC	Fire Services Communications Controller
FWA	Fair Work Australia
GRI Award	General Retail Industry Award 2010
Howe	Howe v Qantas Airways Limited (2004) 188 FLR 1
Klein	Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
La Trobe	National Tertiary Education Union v La Trobe University [2015] FCAFC 142
Marmara	Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84
MFB	Metropolitan Fire and Emergency Services Board
Minister	Minister for Jobs and Industrial Relations
National Retail Association (No 2)	Shop, Distributive and Allied Employees’ Association v National Retail Association (No 2) [2012] FCA 480
NES	National Employment Standards
Pearce Declaration	Statutory Declaration of Ms Janette Pearce
SADR	Special Administrative Duties Roster
SDA	Shop, Distributive and Allied Employees Association
Skene	WorkPac Pty Ltd v Skene [2018] FCAFC 131
Street	Street v Queensland Bar Association (1989) 168 CLR 461
UFU	United Firefighters’ Union of Australia
UFU v CFA	United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1
VEOHRC	Victorian Equal Opportunity and Human Rights Commissioner
Waters	Waters v Public Transport Corporation (1991) 173 CLR 349
WR Act	Workplace Relations Act 1996
2010 CFA Agreement	Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010
2010 MFB Agreement	Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010

1. Introduction and background

[1] On 30 September 2010, an enterprise agreement commenced operation covering the Metropolitan Fire and Emergency Services Board(MFB), the United Firefighters’ Union of Australia (UFU) and various firefighter employees employed by the MFB. It is titled the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (2010 MFB Agreement). It remains in operation but has long since passed its nominal expiry date of 30 September 2013. Also on that day, another enterprise agreement commenced operation. It is titled the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 (ACFO Agreement). The ACFO Agreement covers employees of the MFB who are Assistant Chief Fire Officers (ACFO), the MFB and the UFU. Like the 2010 MFB Agreement, the ACFO Agreement remains in operation though it has passed its 30 September 2013 nominal expiry date.

[2] On 16 March 2018, an enterprise agreement titled the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (Agreement) was made when a majority of employees employed by the MFB at the time who would be covered by the Agreement voted to approve it.

[3] By application lodged on 3 April 2018, the MFB has applied to the Fair Work Commission (Commission) pursuant to s.185 of the Fair Work Act 2009 (Act) for the Agreement to be approved. If approved by the Commission, the Agreement will replace the 2010 MFB and ACFO Agreements. The Agreement is a single enterprise agreement. The UFU is a bargaining representative for the Agreement. It supports the approval of the Agreement and has given notice pursuant to s.183 of the Act that it wants to be covered by the Agreement.

[4] The Minister for Small and Family Business, the Workplace and Deregulation (now the Minister for Jobs and Industrial Relations) (Minister) made application seeking leave to be heard in relation to the application for approval of the Agreement. I decided, in order to inform myself in relation to the application, to permit the Minister to make submissions 1 in relation to the following issues as well as to lead evidence2 relevant to some of these issues:

(a) Whether the Agreement is about permitted matters within the meaning of s.172(1) of the Act;

(b) Whether the Agreement contains one or more discriminatory terms within the meaning of s.195 of the Act;

(d) If the Agreement contains one or more discriminatory terms, whether the Agreement passes the Better off Overall Test (BOOT).

[5] The Victorian Equal Opportunity and Human Rights Commissioner (VEOHRC) also sought leave to be heard in relation to the application for approval of the Agreement. I also decided to permit the VEOHRC to make submissions confined to the matters identified in its written submissions dated 29 May 2018 filed in support of its application for leave to be heard. 3 The VEOHRC was also permitted to file evidentiary material but did not do so.

[6] I have concluded that I am unable to approve the Agreement because I am not satisfied that particular terms of the Agreement do not contravene s.55 of the Act. This concern might be resolved by the provision of appropriate undertakings. I have also concluded that I should apply the construction of “discriminates” adopted by Tracey J in Shop, Distributive and Allied Employees’ Association v National Retail Association (No 2) 4(National Retail Association (No 2)) to the word as it appears in s.195, with the consequence that s.195 is only concerned with terms that directly discriminate against an employee covered by the agreement because of, or for reasons that include, the particular characteristics or attributes identified therein. I have concluded that the Agreement does not include terms that are directly discriminatory. I have also indicated that if I were unencumbered by the authority in National Retail Association (No 2) I would arrive at a different conclusion both as to the meaning of “discriminates” in s.195 and as to whether some of the terms of the Agreement are discriminatory terms. I have concluded that the Agreement does not include any objectionable terms. I have therefore concluded that the requirement in s.186(4) has been met. I have rejected the Minister’s contention as to particular terms of the Agreement not pertaining to a requisite relationship. I am satisfied the Agreement passes the BOOT. The requirement in s.186(2)(d) is met. Save for the s.55 matter identified above, I have concluded the other approval requirements contained in ss.186 and 187 have been met. My reasons for these conclusions follow.

2. Issues in contest– summary

2.1 Unlawful terms objection

[7] The Minister and the VEOHRC contend the Agreement contains a number of unlawful terms.

[8] An unlawful term is, relevantly, a term in an enterprise agreement that is a discriminatory term or an objectionable term. 5 A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, a number of specified characteristics or attributes, relevantly sex and family or carer’s responsibilities.6

[9] Two broad issues require determination in relation to the discriminatory terms point that is raised. The first concerns the meaning of “discriminates” in s.195 of the Act and specifically whether “discriminatory term” extends to a term of an enterprise agreement which though facially neutral or appearing to treat one employee just as another, it nevertheless has a disproportionate adverse effect on an employee covered by the agreement with a specified characteristic or attribute: that is, an employee with a characteristic or attribute is treated less favourably than an employee without the characteristic or attribute. The issue to be determined therefore is whether “discriminates” in s.195 extends to an enterprise agreement indirectly discriminating against an employee covered by it. If that is so, the second issue concerns whether particular provisions of the Agreement which touch upon or effect the capacity of an employee covered by the Agreement to work part-time are discriminatory terms.

[10] It is contended by the objections raised that various terms of the Agreement:

• prohibit part-time employees from performing operational firefighter duties, save in exceptional circumstances;

• prevent the MFB from promoting part-time employees due to insufficient operational firefighting experience and, consequently, require the MFB to hold back other benefits only available to employees of certain classifications;

• prohibit part-time employees from holding certain roles; and

• impose additional obligations on employees seeking part-time work, such as requiring evidence in the form of a statutory declaration evidencing any entitlement (that is to make a request) to flexible work, and agreement from the UFU.

[11] These terms, which are said to be directed to restricting part-time employment and opportunities for part-time employees, are consequently said to be both discriminatory and objectionable terms.

[12] An objectionable term is a term of an enterprise agreement that requires, has the effect of requiring, or purports to require or have the effect of requiring or a term that permits, has the effect of permitting, or purports to permit or has the effect of permitting, a contravention of Part 3–1 of the Act. 7 That part deals with general protections that prohibit the taking of adverse action against, inter alia, employees, prospective employees and independent contractors for particular identified reasons.

[13] Here there is no contest as to the reach of “adverse action”, described in Part 3-1 of the Act as action that “discriminates between employees”. It is accepted that “discriminate” extends to indirect discrimination. The contest insofar as the part-time employment provisions of the Agreement is concerned, is about whether the terms broadly identified earlier have the requisite effect so as to bring them within the definition of an “objectionable term”.

[14] There is a further issue which concerns the effect of certain provisions of the Agreement upon employees who are not members of the UFU and whether these terms singularly or in combination are also objectionable terms. The Minister contends that various terms of the Agreement are objectionable because they require or permit the MFB to discriminate against non-union members. The Minister says that these terms exclude non-union members (or their representatives) from committees and other fora under the Agreement and confer veto rights on the UFU with respect to the individual terms of employment of non-union members.

[15] Together, these matters engage with one of the matters about which the Commission must be satisfied as set out in s.186 of the Act. The Commission must be satisfied, inter alia, that the Agreement does not include any unlawful terms. 8 If the Commission has concerns that the Agreement might contain one or more unlawful terms then it is possible for the Agreement to nonetheless be approved with an appropriate undertaking.9

[16] The VEOHRC’s objection is confined to whether the Agreement contains unlawful terms, and then only on discriminatory grounds or reasons based on sex and family and parental responsibilities.

2.2 Terms that contravene s.55 objection

[17] Section 186(2)(c) of the Act provides that the Commission must be satisfied, before it approves an enterprise agreement, that the terms of the agreement do not contravene s.55. Section 55(1) provides that an enterprise agreement must not exclude any provision of the National Employment Standards (NES). The section also deals with the interaction between terms of an enterprise agreement and the NES. The NES is contained in Part 2-2 of the Act (ss.59-131).

[18] Section 65 of the Act deals with requests made by employees for flexible working arrangements. The Minister contends that the Commission cannot be satisfied that the Agreement does not contravene s.55 because various terms of the Agreement seek to exclude the operation of s.65. The contravention of s.55 is said to occur because by terms of the Agreement:

• requests for part-time work as an operational firefighter will only be allowed in “exceptional circumstances”;

• requests for part-time work as a Fire Services Communications Controller (FSCC) will be refused in all circumstances; and

• the MFB will be required to refuse a request solely because the UFU does not agree to it.

2.3 Matters pertaining objection

[19] Section 172 of the Act provides that an enterprise agreement may be made in accordance with Part 2-4 if it is about one or more matters, relevantly, pertaining to the relationship between an employer that will be covered by the agreement and that employer's employees who will be covered by the agreement and/or pertaining to the relationship between the employer or employers, and the employee organisation(s) that will be covered by the agreement.

[20] The Minister contends that the Agreement contains numerous terms about matters that are not permitted, because they neither pertain to the relationship between the MFB and its employees, nor to the relationship between the MFB and the UFU. In particular, the Minister says that various provisions of the Agreement confer broad veto powers on the UFU across managerial and operational matters. These provisions, reinforced by terms which require the MFB to provide information to the UFU to enable the UFU to monitor more closely the MFB’s operations and management, are said to effectively confer management power on the UFU and deprive the MFB, in a meaningful sense, of its capacity to operate effectively as an employer.

2.4 Better off overall test objection

[21] Section 186(2)(d) requires the Commission to be satisfied as a condition of approving an enterprise agreement, that the agreement passes the BOOT. The BOOT is assessed at test time, which for this Agreement is 3 April 2018. The relevant reference instrument for the purposes of assessing the BOOT is the Fire Fighting Industry Award 2010 (Award). These matters are not controversial.

[22] The proper application of the BOOT requires a finding that each award covered employee and prospective employee would be better off under the agreement than under the relevant modern award. 10 The requirement that “each” such employee and prospective employee be better off overall is a rigorous one. The ordinary meaning of “each” is “every, of two or more considered individually or one by one.”11 It follows that every award covered employee and prospective employee must be better off overall, with the corollary that if anysuch employee is not better off overall, the relevant enterprise agreement does not pass the BOOT.12 The Commission is entitled to assume, in the absence of evidence to the contrary, that if a class of employees to which a particular employee belongs would be better off overall if the agreement applied to that class than if the relevant modern award applied, the employee would be better off overall if the agreement applied to the employee.13

[23] A proper application of the BOOT also requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. 14

[24] The Minister contends that the Agreement is unprecedented in its content. It breaks new ground in its interference in the ability of, in particular, women and people with family and carer responsibilities, to obtain part-time work. These restrictions on part-time employment cause the enterprise agreement to fail the BOOT. The Minister says that existing and prospective Award covered MFB employees seeking to work part-time are worse off under the Agreement than the Award because such employees are not permitted under the Agreement to perform operational firefighter duties, except in exceptional circumstances. Such employees are also precluded under the Agreement from performing certain roles and they are required to seek the approval of the UFU in order to make part-time arrangements.

2.5 Whether undertakings can cure the matters identified?

[25] The capacity of the Commission to accept an undertaking in relation to the approval of an enterprise agreement is dealt with in s.190 of the Act. Section 190 is engaged, relevantly, if an application for approval of an agreement has been made under s.185 and the Commission has a concern that the agreement does not meet the requirements set out in ss.186 and 187. 15 It is uncontroversial in relation to the Agreement that there is an application for its approval under s.185. Whether I have concerns that the Agreement does not meet, inter alia, the requirements in ss.186(2)(c), (d) and (4) of the Act is dealt with later in this decision.

[26] Section 190(2) confers discretion on the Commission to approve an agreement under s.186 if satisfied that acceptance of the undertaking, subject to the fetters in ss.190(3) and (4), meets the concern. Any undertaking proffered must be responsive to and meet the concern that the agreement does not meet one or more of the identified requirements set out in ss.186 and 187 of the Act. By s.190(3), the Commission may only accept a written undertaking if satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement. Section 190(4) prevents the Commission from accepting an undertaking unless it has sought the views of each person who the Commission knows is a bargaining representative for the agreement. Finally, an undertaking that is proffered must meet the signing requirements prescribed by the regulations. A residual discretion remains to be exercised even if the undertaking that has been accepted meets the identified concern.

[27] The Minister contends that the issues identified cannot be remedied by way of written undertakings. The effect of the issues identified is that the Agreement should not be approved. The Minister contends that some of the Agreement terms identified as unlawful terms are central to the Agreement’s operation, thus any undertakings purporting to cure these flaws in the Agreement would involve substantial changes to the Agreement and would, in effect, cause a rewriting of the Agreement itself. The Minister says that such undertakings would not be permitted under s.190 of the Act.

3. Uncontroversial ss.186 and 187 requirements and mandatory terms

[28] The MFB has filed, in support of its application for the approval of the Agreement, a statutory declaration made by Ms Janette Pearce (the Pearce Declaration) which addresses the various requirements in ss.186 and 187 of the Act.

[29] Section 186(1) of the Act provides that if an application for the approval of an enterprise agreement is made, relevantly in this case, under s.185, the Commission must approve the agreement if the requirements set out in ss.186 and 187 are met.

[30] The first of these requirements is that the Commission must be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement. Section 188(1) provides that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that:

188 When employees have genuinely agreed to an enterprise agreement

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[31] I am satisfied based on the material contained in the Pearce Declaration and the documents which are annexed thereto that the MFB complied with ss.180(2), (3) and (5) and 181(2).

[32] According to the Pearce Declaration, at the time the MFB asked relevant employees to vote to approve the Agreement, there were 1,999 employees who were employed who would be covered by the Agreement. Of that voting cohort, 1,768 employees cast a valid vote, and 1,759 voted to approve the Agreement. Plainly, a majority of employees employed at the time who cast a valid vote, voted to approve the Agreement. There is no suggestion that the employees who were asked to vote to approve the Agreement did not meet the description in s.182(1), nor is it suggested that there are employees who met that description but were not asked to vote to approve the Agreement. I am therefore satisfied, based on the material contained in the Pearce Declaration, that the Agreement was made in accordance with s.182(1).

[33] Save for the matter raised by the Minister concerning the nature and extent of the matters which are said not to pertain to the requisite relationships, which I address later in this decision, there is no material before me nor am I aware of any other basis upon which I should conclude that there are other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the relevant employees.

[34] As this is not a multi-enterprise agreement, the requirement in s.186(2)(b) does not apply. The requirements in s.186(2)(c) and (d) are the subject of the objections earlier summarised and are dealt with further below. That said, save for the matters identified in the BOOT objection, there is no suggestion that the Agreement does not pass the BOOT. After a review and comparison of the Agreement terms and the Award terms taking into account the less beneficial terms under the Agreement identified in Attachment F of the Pearce Declaration, I am satisfied (putting to one side the part-time employment issues) the Agreement otherwise passes the BOOT in respect of every other award covered and prospective award covered employee.

[35] The Agreement does not cover all of the MFB’s employees. The Agreement covers employees of the MFB who may broadly be described as operational firefighters together with employees holding the ranks of Commander and ACFO. It is evident from the classification structure in the Agreement and the organisation of the MFB in respect of its firefighting services, that firefighters are engaged in particular classifications in which they are part of a “rank” or command structure commencing at Recruit Firefighter through to ACFO, and ultimately to the Chief Fire Officer, who understandably is not covered by the Agreement.

[36] The Agreement does not cover MFB employees engaged in administrative, clerical, engineering, technical and associated functions or employees engaged in the MFB’s mechanical workshop. Separate enterprise agreements covering these employees are in operation. It appears to me clear that the group of employees covered by the Agreement is operationally distinct. The group may be broadly described as operational firefighters and higher ranking firefighters exercising some level of managerial or operational control over operational firefighters. This group is operationally distinct from other groups of MFB employees who are not covered by the Agreement identified above. There is nothing in the material before me, nor is it suggested that the group of employees covered by the Agreement was anything other than fairly chosen, and I am so satisfied. The requirements in ss.186(3) and (3A) are therefore met.

[37] The requirement in s.186(4) is the subject of the unlawful terms objection earlier summarised and is dealt with further below. That said, on a review of the terms of the Agreement, I am satisfied that the Agreement does not contain any term of the kind described in s.194(baa)–(h). No one has suggested otherwise.

[38] The requirement in s.186(4A) concerns outworker terms and does not arise in respect of the Agreement.

[39] The Agreement specifies a nominal expiry date of 1 July 2019. The requirement in s.186(5) is therefore met.

[40] Clause 21 of the Agreement contains a dispute resolution term. It allows the Commission to settle disputes about matters arising under the Agreement and in relation to the NES. It also allows for the representation of employees covered by the Agreement for the purposes of the procedure. The requirement in s.186(6) is therefore met.

[41] There is no material before me, nor has it been suggested by any person who made a submission in relation to the Agreement, that the approval of the Agreement would be inconsistent with or undermine good faith bargaining by one or more of the bargaining representatives for the proposed Agreement. There is also no scope order in operation. I am therefore satisfied that the requirement in s.187(2) is met.

[42] The requirement in s.187(3) has no application to this Agreement since it concerns a multi-enterprise agreement.

[43] Section 187(4) requires the Commission to be satisfied as referred to in any of the provisions of Subdivision E of Division 4 (ss.196-200). Sections 197-200 have no application in relation to the Agreement.

[44] Section 196 of the Act is concerned with ensuring that a shiftwork employee covered by an enterprise agreement, who is entitled to an additional week’s leave under the NES because an award that is in operation and covers the employee describes that employee as a shiftworker for the purposes of the NES, continues to be so entitled when the agreement is in operation. When s.196 applies, the Commission must be satisfied that the enterprise agreement also defines or describes the employee as a shiftworker for the purposes of the NES.

[45] Clause 28.2 of the Award defines or describes the kind of employee that is a shiftworker for the purposes of the NES. Such an employee is covered by the Agreement. Section 196 is therefore engaged. Clause 90.2 of the Agreement defines or describes such an employee as a shiftworker for the purposes of the NES in the same terms as the Award. I am satisfied therefore that the Agreement defines or describes the employee as a shiftworker for the purposes of the NES. The requirement in s.187(4) is therefore met.

[46] The requirements in ss.187(5) and (6) have no application as the Agreement is not a greenfields agreement.

[47] Section 202 of the Act requires an enterprise agreement to include a flexibility term that enables an employee and his or her employer to agree to an arrangement varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and the employer. Such a term must comply with the content requirements set out in s.203.

[48] Clause 15 of the Agreement contains a flexibility term. It has a narrow permissible subject matter which can be the subject of a flexibility arrangement. It is confined to “when leave is to be taken in accordance with clause 107” of the Agreement. Nonetheless, it is a term described in s.202(1) and its terms comply with s.203.

[49] Section 205 requires that an enterprise agreement include a term that requires an employer to which the agreement applies to consult with employees about a major workplace change that is likely to have a significant effect on the employees. The term must also require consultation about a change to an employee’s regular roster or ordinary hours of work, and must allow for the representation of employees for the purposes of the consultation.

[50] Clause 16 of the Agreement sets out a comprehensive consultation scheme. It is a term of the kind required by s.205(1) and it makes provision for the matters set out in s.205(1A).

[51] Accordingly, s.201(1) has no work to do in respect of this application.

4. Unlawful terms

4.1 The discriminatory term point – s.195

[52] There is no suggestion that any term of the Agreement directly discriminates against an employee covered by the Agreement because of, or for reasons including, one or more of the other identified characteristics or attributes in s.195 of the Act. The contention advanced by the Minister and the VEOHRC is that a number of the terms of the Agreement indirectly discriminate against an employee covered by the Agreement because of, or for reasons that include, the employee’s sex and/or family or carer’s responsibilities.

4.1.1 The impugned terms of the Agreement

[53] A number of the terms of the Agreement are said to be caught by s.195 of the Act. The terms of the Agreement impugned as discriminatory terms by the Minister and the VEOHRC are clauses 9, 43 and 44 of the Agreement. The Minister also contends that clauses 12, 41, 85, 136, 138 and 152 are discriminatory terms. 16 The impugned terms may be grouped into six broad categories. The sixth category is in my view a contention that the term contravenes s.55 of the Act.

[54] The first category includes terms that are said to have the effect of not permitting a part-time employee to perform operational firefighter duties except in exceptional circumstances. These terms are:

Special administrative duties terms

9.1.6. Where in accordance with this clause the MFB agrees to a request to work other than full time, for the reasons of service delivery, safety and welfare of employees, the employee will be rostered pursuant to clause 124.

44.1.1. Where in accordance with this clause the MFB agrees to a request to work other than full-time, for the reasons of service delivery, safety and welfare of employees, the employee will be rostered pursuant to clause 124.

Save in exceptional circumstances terms

9.1.7. Save in exceptional circumstances where there is no risk to service delivery, safety and welfare of employees, the MFB agrees that anyone accessing part-time arrangement will not work on the 10/14 Roster or form a part of minimum safety crewing in Schedule 2.

44.1.2. Save in exceptional circumstances where there is no risk to service delivery, safety and welfare of employees, the MFB agrees that anyone accessing part-time arrangements will not work on the 10/14 Roster or form a part of minimum safety crewing in Schedule 2.

43.6.1. With the exception of operational dayworkers, full-time employees shall work and be rostered in accordance with the operational “10/14” roster set out in clause 133 and the conditions in clause 123 or the conditions set out in clause 153 for FSCCs.

On-shift employees should be employed on a full-time basis terms

9.1.4. In addition to any other obligations, the MFB acknowledges the obligations to make reasonable accommodation for employees with parental or carer responsibilities and to make reasonable adjustments for employees with disabilities. However the MFB have determined and the parties have reached agreement that the MFB's operational requirements mean generally that on-shift employees should be employed on a full-time basis. The MFB will meet the obligation to give reasonable accommodation/adjustments as required on a case by case basis, but the parties acknowledge that this may, in some cases require an employee to transfer off-station or from their current work location to another position.

9.1.5. To avoid doubt, in addition to other obligations, this Agreement does not limit the rights of employees, who are entitled to make a request for a change in working arrangements under s65 of the Act, to make such a request and to have it considered by the MFB in accordance with that section. However, the MFB has determined and the parties have reached agreement that the MFB's operational requirements mean generally that on-shift employees should be employed on a full-time basis. As required by the Act, the MFB will consider every request from an entitled employee for flexible working arrangements and will assess each request on a case by case basis, but the parties acknowledge that this may, in some cases require an entitled employee to transfer off-station or from their current work location to another position. Without limiting the foregoing, this subclause applies to the following clauses and schedules: 12.3, 43.1, 69, 121.1, 136.1.1, 138.1, 139, 152.1, 153, Schedule 3, and Schedule 14 despite any inconsistent terms therein.

44.1. In addition to other obligations on the MFB, and to avoid doubt, this clause does not limit the rights of employees, who are entitled to make a request for a change in working arrangements under s.65 of the Act, to make such a request and to have it considered by the MFB in accordance with that section. However, the MFB has determined and the parties have reached agreement that MFBs operational requirements mean generally that on-shift employees should be employed on a full-time basis. As required by the Act, the MFB will consider every request from an entitled employee for flexible working arrangements and will assess each request on a case-by-case basis, but the parties acknowledge that this may in some cases require an entitled employee to transfer off station or from their current work location to another position.

[55] The second category includes terms identified above that are said to relegate part-time employees to administrative duties which has the consequential effect of limiting career progression and denying other benefits. These latter terms are:

Classification progression contingent on firefighting duties terms

12.3.1. Recruit Firefighter (C) means a probationary Firefighter, who is undertaking the MFESB recruit firefighter training course.

12.3.2. Firefighter Level 1 (C) means a Firefighter who has completed the MFESB recruit firefighter training course in accordance with the training framework at schedule 3. Firefighter Level 1 (C) employees who have successfully completed the MFESB recruit firefighter training course shall be engaged in the duties of a Firefighter Level 1 (C) in accordance with the classification description for Firefighter Level 1 (C) (schedule 12).

12.3.3. Firefighter Level 2 (C) means a Firefighter who has completed the MFESB recruit firefighter course and has completed twelve months service with the MFESB and all MFESB Firefighter Level 1 (C) modules.

12.3.4. Firefighter Level 2 (C) employees are engaged in the duties of a Firefighter Level 2 (C) in accordance with the classification description for Firefighter Level 2 (C) (schedule 12). The modules and training applicable for progression to this paypoint are contained in the training framework at schedule 3.

12.3.5. Firefighter Level 3 (C) means a firefighter who has completed 24 months service with the MFESB and all MFESB Firefighter Level 2 (C) modules.

12.3.6. Firefighter Level 3 (C) employees are engaged in the duties of a Firefighter Level 3 (C) in accordance with the classification description for Firefighter (C) (schedule 12). The modules and training applicable for progression to this paypoint are contained in the training framework at schedule 3.

12.3.7. Qualified Firefighter (C) means a firefighter who has completed a minimum of 36 months service with the MFESB, all MFESB Firefighter Level 3 modules and possesses the Certificate of Proficiency.

12.3.8. Qualified Firefighter (C) employees are engaged in the duties of a Qualified Firefighter (C) in accordance with the classification description for Qualified Firefighter (C) (schedule 12). The modules and training applicable for progression to this paypoint are contained in the training framework at schedule 3.

12.3.9. Senior Firefighter (C) means a firefighter who translates to this paypoint as a result of being a Senior Firefighter in the previous agreement.

12.3.10. Leading Firefighter (C) means a firefighter who has completed a minimum of 48 months career firefighting service with the MFESB, has successfully completed all MFESB Firefighter Levels 1, 2 and 3 modules, all MFESB Qualified Firefighter modules, all LFF modules, all Command and control modules and has been a Qualified Firefighter with the MFESB (the LFF requirements). Leading Firefighter (C) employees are engaged in the duties of a Leading Firefighter in accordance with the position description for that classification in SCHEDULE 12.

12.3.11. Senior Leading Firefighter (C) means a career firefighter who has completed 5 years’ service within the MFB at the classification of Leading Firefighter.

12.3.12. Station Officer (C) means an appointed Officer who has completed a minimum of 6 years career firefighting service with the MFESB, with at least 1 year at a minimum classification of Leading Firefighter with the MFESB, and has successfully completed the Station Officer modules and MFESB Station Officer assessment (the SO requirements). Station Officer employees are engaged in the duties of a SO in accordance with the position description for that classification in SCHEDULE 12.

12.3.13. Senior Station Officer (C) means an appointed Officer who has completed a minimum of 2 years’ service with the MFESB at the Station Officer Level and has successfully completed the Senior Station Officer modules and assessment (the SSO requirements). Senior Station Officer (C) employees are engaged in the duties of a SSO in accordance with the position description for that classification in SCHEDULE 12.

12.3.14 Commander (C) means an appointed officer who has completed a minimum of 1 year’s service with the MFESB at the SSO Level on shift and a minimum of 1 year’s service with the MFESB at the SO or SSO Level in a day duty department and who has successfully completed the Commander modules and assessment (the Commander requirements).Commander employees are engaged in the duties of a Commander in accordance with the position description for that classification in SCHEDULE 5.

12.3.15 Assistant Chief Fire Officer (C) means an employee appointed officer who has a minimum of two years’ service with the MFESB at the Commander Level and who has successfully completed the ACFO modules and assessment (the ACFO requirements). ACFO employees are engaged in the duties of a ACFO in accordance with the position description for that classification at SCHEDULE 10 – and the functions at SCHEDULE 11.

12.3.16 Fire Service Communication Controller (C) means an appointed officer who has completed a minimum of 10 years’ service with the MFESB at the Station Officer Level (half of which has been on shift) and has successfully completed the FSCC modules and assessment (the FSCC requirements). FSCC employees are engaged in the duties of a FSCC in accordance with the position description for that classification at SCHEDULE 8.

12.3.17. Senior Fire Service Communication Controller means a Fire Service Communication Controller who has completed 12 months service within the MFB at the classification of FSCC. Where this agreement refers to a FSCC, it shall be taken to include Senior FSCC, unless the context requires otherwise.

Terms that make benefits only available to employees of certain classifications

41.1. Employees to whom this agreement applies shall not be permitted, or required, to undertake a secondment to another organisation except in accordance with the secondment programme in SCHEDULE 13.

41.3.2. The agreed secondment program will only be for employees that hold the rank of Leading Firefighter or above.

136.1.1. The MFB will not appoint a person to a position of instructor, and no person may hold a position of instructor, unless that person is an operational employee who holds a MFB firefighting stream rank referred to in clause 12.3.10.

[56] The third category includes terms that are said to make no provision for a part-time employee to be an FSCC or Senior FSCC. These terms are:

152.1. FSCCs will work in accordance with clause 43 and where applicable clause 153.

152.2. The ordinary working hours for employees shall be 38 per week, over a cycle of eight weeks for which the roster of hours and leave operates. Employee's shall be rostered and worked an average of 42 hours per week, two of which hours shall be overtime work and paid for as such and the remaining two hours shall be taken as accrued leave, in accordance with the roster laid down for this purpose.

43.6.2. Full-time operational dayworkers (professional firefighters who are not working on a roster referred to in 43.6.1) shall work and be rostered in accordance with the special administrative duties roster set out in clause 135.

[57] The fourth category includes terms that are said to require the agreement of the UFU for part-time employment. These terms are:

43.3. The MFB will not employ an employee on a part-time or casual basis, and no employee may hold a position on such a basis, unless in each case there is agreement between all parties on a case by case basis (agreement is required for each employee).

43.4. This clause is subject to the rights of employees to work in a non- station based position pursuant to clause 44 below.

138.4 The MFB will not employ an employee on a part-time or casual basis, and no employee may hold a position on such a basis, unless in each case there is agreement between all parties on a case by case basis (agreement is required for each employee).

43.6.3. Where part-time employment is agreed, part-time operational dayworkers will:

a) work and be rostered on hours negotiated and agreed in writing between the MFB the employee and the UFU that, on average are less than 42 hours per week. These hours may be worked over a 5 day cycle and may include evening or weekend work;

138.4.1. Where part-time employment is agreed, part-time operational dayworkers will:

a) work and be rostered on hours negotiated and agreed in writing between the MFB the employee and the UFU that, on average are less than 38 hours per week. These hours may be worked over a 5 day cycle and may include evening or weekend work;

…

[58] The fifth category includes terms that are said to impose imposts on the MFB in relation to part-time employees. That is, they act as a disincentive to part-time employment by adding additional costs to be borne by the MFB if an employee is engaged on a part-time basis. These terms are:

Insecure work allowance

43.5. Employees other than full time employees shall have access to all terms and conditions under this agreement on a pro rata basis and shall receive an insecure work allowance of 25% of their annual wage.

138.2 Employees other than full time employees shall have access to all terms and conditions under this agreement on a pro rata basis and shall receive an insecure work allowance of 25% of their annual wage.

Special administrative duties allowance

43.6. Employees shall have their normal hours of work arranged in the following manner:

. . .

b) Be paid special administrative duties allowance not at a pro rata rate; and

85.16.1. Employees rostered for Special Administrative Duties shall receive an allowance in accordance with Schedule 4 Allowances whilst so rostered. Special Administrative Duties shall include all rostered duty in all MFB departments including but not limited to Training and Education, Fire Safety and Administrative areas of Operations as well as the rosters of all day work personnel on OSG.

138.4.1. Where part-time employment is agreed, part-time operational dayworkers will:

. . .

b) Receive special administrative duties allowance not at a pro rata rate; and

…

[59] The final category contains a term that is said to constrain access to certain NES entitlements. This term is:

44.3.1. An employee must provide appropriate evidence of their entitlement under the Act in the form of a statutory declaration, copies of which will be provided to the UFU and MFB.

[60] I take the reference to “their entitlement under the Act” in clause 44.3.1 to mean establishing an employee’s entitlement to make a request under s.65(1) by reference to, inter alia, the application of the circumstances in s.65(1A) to the employee.

[61] As I have already noted, the criticism of this provision is in essence one concerned with whether it contravenes s.55 of the Act. If it does, the term is to that extent of no effect in the same way that a term that is caught be s.195 is of no effect. 17 I will deal with this issue later in this decision.

[62] The VEOHRC argues that any clause of the Agreement that:

• requires a person to work full-time or prevents the person from working part-time;

• restricts, or attaches conditions to, the ability of an employee to work, or seek to work part-time; or

• affords less favourable treatment to an employee because the employee works, or seeks to work part-time;

• indirectly discriminates against those who have the status or attribute of being female, a parent, a carer or being older or of having family responsibilities or a disability. 18

[63] The Minister contends that the terms are discriminatory against women and employees with family and carer’s responsibilities because the terms have the effect that:

1. Part-time employees are not permitted to perform operational firefighter duties, save in exceptional circumstances;

2. Part-time employees are relegated to administrative duties and are impeded in career progression and precluded from other benefits;

3. There is no provision for part-time FSCCs and Senior FSCCs;

4. Employees are required to provide a statutory declaration evidencing their entitlement under s.65 of the Act;

5. Part-time employees require UFU agreement to work part-time; and

6. There is an impost imposed on the MFB for part-time employees.

4.1.2 Meaning of “discriminates” in s.195

[64] Section 195 of the Act provides:

195 Meaning of discriminatory term

Discriminatory term

(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory terms

(2) A term of an enterprise agreement does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or

(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

[65] The words “discriminatory term”, “discriminates”, “discriminates against” or “discriminates between” used variously in the Act are not defined. Ascertaining their meaning thus becomes a matter of statutory construction. Before dealing with the competing contentions of the parties as to the meaning of those words, it is convenient to summarise the principles of statutory construction to be applied.

[66] The task of ascribing meaning to the words of the statute is concerned with interpreting the relevant statutory provision(s) consistently with the intended purpose or objects of the legislature as disclosed by the text of the statute and begins with an examination of the ordinary grammatical meaning of the words used in the context of the statute as a whole in which they appear. This point was made clear in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc & Ors v Australian Broadcasting Authority 19 wherein their Honours said:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.” 20 [Footnotes omitted]

[67] The point was also made long ago, as is clear from the following passage of the judgment of Dixon J (as he was then) in R v Wilson; Ex parte Kisch: 21

“The rules of interpretation require us to take expressions in their context, and to construe them with proper regard the subject matter with which instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them.” 22

[68] A summary of the relevant principles is contained in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 23 as follows:

“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” 24 [Footnotes omitted]

[69] In the same case, French CJ observed:

“The starting point in consideration… is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose… In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.” 25 [Footnotes omitted]

[70] More recently, the High Court has set out the approach to be applied to issues of statutory construction in SZTAL v Minister for Immigration and Border Protection. 26In their joint judgment, Kiefel CJ, Nettle and Gordon JJ said:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at thisfirst stage and not at some later stage and it should be regarded in itswidest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” 27 [Footnotes omitted]

[71] In the same case Gageler J observed:

“Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd ((1985) 157 CLR 309 at 315):

"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd (CLR 384 at 408):

"[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."

Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle".” 28 [Footnotes omitted]

[72] These principles were also recently considered by a Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skene 29 (Skene) wherein the Court said:

“…Ordinarily, the meaning of an undefined expression is discerned by reference to the language of the Act viewed as a whole. As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22], the task of statutory construction involves the attribution of meaning to statutory text. It is a task which must begin with the consideration of the text itself, but the meaning of the text must be construed by reference to context and legislative purpose of the provision. Similar guidance emphasising the need to discern the statutory purpose of a provision was given by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [39] where their Honours said that “integral” to the making of constructional choices “is discernment of statutory purpose”. Similar guidance also is derived from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).” 30

[73] Also relevant to a consideration of the statutory context is that the words “discriminates” or “discriminates against” appear in ss.153 and 342 as well as in s.195 of the Act, undefined. A principle of construction, albeit one that may readily be rebutted, is that words are assumed to be used consistently in legislation. For example in Craig Williamson Pty Ltd v Barrowcliff, 31Hodges J said the following:

“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act.” 32

[74] The same point was recently made in Skene with the appropriate caution:

“It is ordinarily considered a sound rule of construction that the same word appearing in different parts of a statute should be given the same meaning. Such an assumption is a logical starting point or a sensible working hypothesis, particularly where an expression is used in the same division or in closely proximate provisions of a statute. However, it is not an assumption that is to be rigidly adopted and it may be rebutted where the context, purpose or surrounding text provide reason to do so. Whether the context, purpose or surrounding text so require must be considered on a case by case basis: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [3] (Allsop CJ); Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at [11] (Mason J); Secretary, Department of Social Security v Copping [1987] FCA 280; [1987] 73 ALR 343 at 347-348 (Jenkinson J); Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005)145 FCR 523 at [14] (Moore J); and The State of Queensland (Queensland Health) v Chi Forest [2008] FCAFC 96; (2008) 168 FCR 532 at [41] (Black CJ).” 33

[75] Section 15AA of the Acts Interpretation Act 1901 34 (AI Act) also makes it clear that in interpreting a statute, regard must be had to the purpose or object underlying the statute (whether that purpose or object is expressly stated in the statute or not) and that a construction that would promote its underlying purpose or object is to be preferred to a construction that would not promote that purpose or object.

[76] The AI Act also deals, in s.15AB, with the extent and purpose to which extrinsic material may be called upon to aid the interpretation of a statute. In their joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd, 35 Brennan CJ and Dawson, Toohey and Gummow JJ observed:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.” 36 [Footnotes omitted]

[77] In Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union, 37the Full Court of the Federal Court (Allsop CJ, Griffiths and O’Callaghan JJ) noted that some caution is required in selecting and applying the non-statutory or common law principles to construction. The Full Court said:

“The task of statutory construction can be assisted by a wide range of more specific principles of statutory construction, many of which have been developed by the courts, while others are now expressed in legislation such as the Acts Interpretation Act 1901 (Cth) (the AIA), including ss 15AA and 15AB. Some caution is required in selecting and applying the non-statutory or common law principles. They are not inflexible rules and their application in particular circumstances can be nuanced. Moreover, there can be tension between some of the principles. They are not masters, but should be viewed as servants and tools of analysis in the task of statutory construction.

One of the matters which the plurality and Gageler J highlighted in SZTAL is the importance of a purposive approach. Such an approach is also required by s 15AA of the AIA. It requires the Court, in interpreting a provision of an Act, to prefer an interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) over any other interpretation. That requirement is uncontroversial. In some instances, difficulties can arise in identifying the relevant purpose or object. This is frequently the case, for example, with legislation which reflects the Parliament’s balancing of competing and conflicting interests or where the legislation has more than one purpose.

Where there is more than a single legislative purpose, it may be difficult to identify which, if any, of the overarching legislative purposes is apposite to an individual provision. These and other related difficulties were highlighted by Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 (Carr) at [5] (footnotes omitted):

5. Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.” 38

[78] Authorities on the meaning of “discriminates” in the context of ss.153 and 342, as well as in other contexts, are considered later below.

[79] Additionally, statutory construction principles would allow a broad interpretation of s.195 if, as the Minister and the VEOHRC submit, it is a provision which is beneficial or remedial in purpose. 39 A Full Bench of the Commission considered the approach to construction of remedial or beneficial provisions in Bowker and Others v DP World Melbourne Limited T/A DP World, Maritime Union of Australia and Others.40 The Full Bench observed:

“The characterisation of these provisions as remedial or beneficial has implications for the approach to be taken to their interpretation. As the majority (per Gibbs CJ, Mason, Wilson and Dawson JJ) observed in Waugh v Kippen:

“… the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended he should have.”

Any ambiguity is to be construed beneficially to give the fullest relief that a fair meaning of its language will allow, provided that the interpretation adopted is ‘restrained within the confines of the actual language employed that is fairly open on the words used’. As their Honours Brennan CJ and McHugh J put it in IW v City of Perth:

“… beneficial and remedial legislation, like the [Equal Opportunity] Act is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.”

If the words to be construed admit only one outcome then that is the meaning to be attributed to the words. However if more than one interpretation is available or there is uncertainty as to the meaning of the words, such that the construction of the legislation presents a choice, then a beneficial interpretation may be adopted.” 41 [Footnotes omitted]

[80] These principles of statutory construction are not seriously in contest. Their application to the provisions at issue in this case is quite another matter and the task is not without difficulty.

[81] The MFB contends that s.195 does not encompass indirectly discriminatory terms. 42 In the absence of an express definition of the word “discriminates” within the Act, it contends that the construction of s.195 must be approached in the context of its place within a scheme of provisions in the Act which complement State and Territory equal opportunity legislation in limiting the extent to which an agreement might operate with discriminatory effect.43

[82] Based on Commonwealth, State and Territory anti-discrimination legislation, the MFB contends that legislatures in the various jurisdictions have separately defined direct and indirect discrimination, or have expressly defined “discriminates against” as encompassing both direct and indirect discrimination. 44 It contends that these legislatures have incorporated an express “reasonableness” exception into definitions of indirect discrimination.45 It contends therefore that, had Parliament intended s.195 to encompass indirect discrimination, it would have made express provision for this, as it did for s.351 of the Act.46

[83] The MFB also argues, contrary to the submissions of the Minister noted below, that s.195(3)(c) does not create a carve-out capable of applying to indirect discrimination. 47 That subsection provides that a term of an enterprise agreement does not discriminate against an employee merely because it provides wages for all employees to whom training arrangements apply, or to a class of such employees.

[84] The MFB argues in the alternative, that if s.195 extends to indirectly discriminatory terms, it could only extend to terms which necessarily produce, and only produce, a discriminatory outcome. 48 Further, if s.195 so extends, it should be read as not applying to terms of the Agreement which impose requirements, conditions or practices that are reasonable or reflect the inherent requirements of the position concerned.49 It contends that the requirements imposed by the impugned terms are reasonable and reflect the inherent requirements of the position concerned.50

[85] As a further alternative, the MFB contends that if s.195 encompasses indirect discrimination and does not import a reasonableness test, then the ‘inherent requirements’ exception in s.195(2) will have to be read broadly, in a manner which effectively equates with the ‘reasonableness’ exception. 51

[86] Like the MFB, the UFU advances a construction of s.195 that does not encompass indirect discrimination. Its submissions include that:

• the terms of s.195, when contrasted with how federal anti-discrimination legislation deals with direct and indirect discrimination, including by providing separate definitions and defences in each case, favour a narrow construction of the section limited to direct discrimination; 52

• s.195 does not require the parties or Commission to scrutinise the Agreement for terms which might disparately impact on hypothetical employees with the full range of relevant characteristics unknown to the parties at the time of making the Agreement; 53

• s.195 should be considered in the context of federal anti-discrimination legislation and its place in a statutory regime designed to allow scrutiny of the terms of industrial instruments; 54

• the objects of Part 2-4 of the Act include ensuring that applications to the Commission for approval of enterprise agreements are dealt with without delay, and a construction of s.195 that extended to indirect discrimination would mean the parties and the Commission would need to be alive to and address all indirect consequences of facially neutral terms; 55 and

• the decision in National Retail Association (No 2), is the only directly relevant decision and supports a construction of s.195 that does not include indirect discrimination. 56

[87] The UFU also contends that the text of s.195 requires the Commission to be satisfied that the Agreement does not contain a term that discriminates against an employee covered by the Agreement because of, or for reasons including, any of the employee’s characteristics or attributes as identified, which is suggestive of a requirement that an employee covered by the Agreement be identified. 57 The UFU submits that the Minister did not identify any employee who is discriminated against by any term of the Agreement.58 This submission is rejected. Contextually, the focus of the enquiry under s.195 is on effect of the term upon an employee who falls within the coverage of the Agreement.

[88] The Minister contends that “discriminates” in s.195 incorporates concepts of both direct and indirect discrimination. 59 The Minister’s contention as to that which constitutes “indirect discrimination” differs from the construction for which the VEOHRC advocates. In the Minister’s view, “indirect discrimination arises where a condition or requirement disadvantages people with a particular attribute (or is likely to do so), which is not reasonable in the circumstances.”60 [Emphasis added]

[89] In support of this construction, the Minister submits, inter alia, that:

• the concept of indirect discrimination incorporates a requirement of reasonableness;

• the ordinary and natural meaning of “discriminates” includes both direct and indirect discrimination, 61 and judicial consideration of the word in Street v Queensland Bar Association62 (Street), Waters v Public Transport Corporation63(Waters) and Klein v Metropolitan Fire and Emergency Services Board64 (Klein) supports this view;65

• to give effect to the object of the Act (s.3), and in the context of its predecessor provisions and other provisions in the Act that include the term “discriminates” should be construed to include both direct and indirect discrimination; 66

• a narrow construction of “discriminates” in s.195(1) is inappropriate given the provisions of the Act aimed at eliminating discrimination are beneficial and remedial in purpose. Rather, s.195 should be construed to give the fullest remedy of the situation with which it is intended to deal, available from the wording; 67

• a construction which includes both direct and indirect discrimination provides the fullest remedy; 68 and

• the exceptions provided by ss.195(2) and (3) to the s.195(1) preclusion of discriminatory terms can apply to clauses that could be indirectly discriminatory. 69

[90] The Minister argues the construction for which she contends is consistent with other provisions in the Act which concern the concepts of discrimination, 70 and that it should be presumed that the term has the same meaning in s.195 as elsewhere throughout the Act.71

[91] The VEOHRC contends that “discriminates” in s.195 should be given its ordinary meaning, which in its submission encompasses both direct and indirect discrimination. In doing so, it adopts the meaning of indirect discrimination articulated by Dawson and Toohey JJ in Waters: 72

“…indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter.” 73

[92] The VEOHRC argues that the statutory history of s.195 does not identify any Parliamentary intent to constrain “discriminates” to only direct discrimination. 74 It submits that an interpretation which includes indirect discrimination best achieves the objects set out at s.3 of the Act,75 and that the weight of authority of single members of the Commission and its predecessors supports that interpretation.76 The VEOHRC relies upon the interpretation of “discriminates” adopted by Gordon J in Klein77 in arguing that there is no reason to give “discriminates” a meaning which in any way departs from the meaning attaching to the same phrase in s.195.78 Klein concerned the meaning of the word “discriminates” in the context of s.342 of the Act.

[93] Unlike the Minister, the VEOHRC does not contend that reasonableness is a relevant consideration in assessing whether a term is a discriminatory term. However, it submits that if its construction of s.195 is not accepted, the Commission should adopt the position of the Minister. 79

[94] The meaning of “discriminates” in s.195 has not been the subject of judicial consideration, but as already noted, it has been considered in other contexts, including ss.153 and 342 of the Act. Those authorities provide useful guidance on the meaning of the term in s.195, particularly noting the statutory construction principle referred to at [73] and [74] above.

[95] In Street, 80the High Court of Australia considered whether “discrimination” in s.117 of the Commonwealth of Australia Constitution Act (Constitution) encompassed indirect discrimination.81 The judgment in Street departed from previous High Court authority which had confined “discrimination” in s.117 of the Constitution to direct discrimination. Mason CJ observed:

“…The section is not concerned with the form in which that law subjects the individual to the disability or discrimination. It is enough that the individual is subject to either of the two detriments, whatever the means by which this is brought about by State law. This approach to the interpretation of the section accords with the approach generally adopted in connection with statutes proscribing particular kinds of discrimination. They are either expressed or construed as proscribing an act or a law the effect of which is relevantly discriminatory… It would be surprising if it were otherwise, especially since such statues are generally intended to provide relief from discrimination rather than to punish the discriminator. … It would make little sense to deal with laws which have a discriminatory purpose and leave untouched laws which have a discriminatory effect.” 82 [Citations omitted, emphasis added]

[96] Brennan J similarly observed:

“…For the purposes of s.117, it is not the indifferent application of a law to in-State and out-of-State residents which is material, but the actual impact on a protected person of a law or governmental act in comparison with the impact it would have if that person were an in-State resident.

…

A law which does not have a discriminatory character may produce an impermissible discrimination in a particular case, and a law which does have that character may not do so in a particular case.” 83

[97] As to the breadth of the protection against indirect discrimination, Gaudron J said:

“... The limits to the protection afforded by s. 117 are, in my view, to be ascertained by reference to the expression "disability or discrimination" rather than by identification of interests pertaining to national unity or by reference to the federal object attending s. 117.

Although in its primary sense "discrimination" refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is "discrimination between"; the legal sense is "discrimination against".

Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed. Even so, the legislation frequently allows for an exception in cases where the characteristic has a relevant bearing on the matter in issue. Thus, for example, the Anti-Discrimination Act 1977 (N.S.W.), whilst proscribing discrimination in employment on the grounds of race and sex, allows in ss. 14 and 31 that discrimination is not unlawful if sex or race is a genuine occupational qualification.

The framework of anti-discrimination legislation has, to a considerable extent, shaped our understanding of what is involved in discrimination. Because most anti-discrimination legislation tends to proceed by reference to an unexpressed declaration that a particular characteristic is irrelevant it is largely unnecessary to note that discrimination is confined to different treatment that is not appropriate to a relevant difference. It is often equally unnecessary to note that, if there is a relevant difference, a failure to accord different treatment appropriate to that difference also constitutes discrimination.

[349] That said, as I have already observed, the Award does not create a right to part-time employment but merely facilitates the working of part-time employment in respect of persons who are engaged in particular classifications for which the Award provides. Such rights as are available for flexible working arrangements are exercisable under s.65 of the Act. Thus, although it is much more difficult to navigate through the barriers which the Agreement establishes in order that an employee or prospective employee might attain part-time employment, the position under the Agreement and under the Award is the same in the sense that under neither can it be said that a particular employee or prospective employee has a right to part-time employment. The barriers that exist under the Agreement offend s.65 of the Act for the reasons earlier stated. But ultimately, such detriments as exist by reason of the strictures apparent under the Agreement can only be contingent detriments since there is an absence of a right to insist to be engaged on a part-time basis under the Award.

[350] But even if I am wrong about this, given my conclusion earlier about the effect of particular provisions in the Agreement on s.65 of the Act, undertakings that might be given in relation to those concerns will plainly also impact on the BOOT since the undertakings will need to be directed to the very same restrictions.

[351] That said, it is difficult to see given the content of the Agreement compared to the Award, how award covered employees and prospective employees who want to work part-time would not be better off overall if the Agreement applied than if the Award applied.

[352] The superior leave entitlements and allowances together with the substantially higher minimum rates of pay under the Agreement compared with the shift loaded rates payable under the Award weigh heavily in the assessment. 291 Even assuming the restrictions on part-time operational duties, it cannot be said on that basis alone, having regard to the Agreement’s more generous rates of pay, leave entitlements and allowances that any employee and prospective employee, at test time, is not better off overall if the Agreement applied to the employee than if the Award applied to that employee. There is no evidence that any particular employee covered by the Agreement will, by reason of a need to work part-time, not be better off overall under the Agreement.

[353] Apart from the part-time issue, there is no suggestion that any other existing or prospective employee covered by the Agreement would not be better off overall if the Agreement applied than if the Award applied.

[354] I therefore am satisfied that the Agreement passes the BOOT with the consequence that the requirement in s.186(2)(d) is met.

8. Conclusion

[355] For the reasons stated, I have concluded that:

a. I should apply the judgment of Tracey J in National Retail Association (No 2) to the construction of the word “discriminates” in s.195(1) of the Act. It follows that a term of an enterprise agreement will only be a discriminatory term to the extent that it directly discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s particular identified characteristic or attribute. I am satisfied that the Agreement does not therefore include any discriminatory terms. I would conclude differently if I felt free to disregard National Retail Association (No 2);

b. the Agreement does not include any objectionable terms. The requirement in s.186(4) is met;

c. the Agreement is predominantly about matters that pertain to the requisite relationships and the objection raised on this ground is rejected;

d. the Agreement passes the BOOT. The requirement in s.186(2)(d) is met;

e. save for the matter below, I am otherwise satisfied for the reasons stated that the approval requirements in ss.186 and 187 have been met; and

f. I am not satisfied that particular terms of the Agreement earlier identified in this decision do not contravene s.55 of the Act. I do not consider the requirement in s.186(2)(c) has been met.

[356] Appropriate undertakings might be formulated by the MFB to meet the concern in (f) above. Consequently, I direct as follows:

1. The MFB is to file in my Chambers and serve on the UFU any written undertaking that it wishes to give to meet the concern that the Agreement contains terms that contravene s.55 of the Act within 21 days of the date of this decision;

2. Before filing any undertaking, the MFB is to consult with the UFU in its capacity as bargaining representative for the Agreement about the undertaking;

3. The UFU may file in my Chambers and serve on the MFB any written submission it might wish to make in relation to any undertaking that is given by the MFB within seven days after the undertaking is filed;

4. The MFB may file in my Chambers and serve on the UFU any submissions in reply within seven days thereafter.

DEPUTY PRESIDENT

Appearances:

C O’Grady QC, R Nelson and A Pollock of Counsel for the Metropolitan Fire and Emergency Services Board.

RC Kenzie QC and TJ Dixon of Counselfor the United Firefighters’ Union of Australia.

J Bourke QC and J Firkin SC for the Minister for Jobs and Industrial Relations.

P O’Grady QC and N Campbell of Counselfor the Victorian Equal Opportunity and Human Rights Commissioner.

Hearing details:

2018.

Melbourne:

August 27, 28, 30 and 31.

Written submissions:

Minister for Jobs and Industrial Relations, 22 June 2018.

Victorian Equal Opportunity and Human Rights Commissioner, 22 June 2018.

Metropolitan Fire and Emergency Services Board, 13 August 2018.

United Firefighters’ Union of Australia, 14 August 2018.

United Firefighters’ Union of Australia (Closing submissions), 30 August 2018.

Metropolitan Fire and Emergency Services Board (Additional issues raised during argument), 30 August 2018.

Metropolitan Fire and Emergency Services Board (Sections 185, 186 and 187), 30 August 2018.

Victorian Equal Opportunity and Human Rights Commissioner (Oral submissions), 31 August 2018.

Metropolitan Fire and Emergency Services Board (Supplementary submissions), 7 September 2018.

United Firefighters’ Union of Australia (Supplementary submissions), 7 September 2018.

Printed by authority of the Commonwealth Government Printer

1 See [2018] FWC 3220

2 Ibid; see also [2018] FWC 3942

3 See note 1

4 [2012] FCA 480

5 Fair Work Act 2009 (Cth) s.194

6 Ibid at s.195

7 Ibid at s.12

8 Ibid at s.186(4)

9 Ibid at s.190

10 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltdand Bi-Lo Pty Limited; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [11]

11 Macquarie Online Dictionary

12 Application by Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) & Welsh and Others (Loaded Rates Agreements Case)[2018] FWCFB 3610 at [100]

13 Fair Work Act 2009 (Cth) s.193(7)

14 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 at [92]; Armacell Australia Pty Ltd [2010] FWAFB 9985 at [41]; Application by Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) & Welsh and Others (Loaded Rates Agreements Case)[2018] FWCFB 3610 at [112]

15 Fair Work Act 2009 (Cth) s.190(1)

16 See Annexure 1 of the Minister’s Outline of Submissions dated 22 June 2018

17 Fair Work Act 2009 (Cth) ss.56 and 253(1)(b)

18 Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [22]-[24]

19 (1998) 194 CLR 355

20 Ibid at [69]

21 (1934) 52 CLR 234

22 Ibid at 244

23 [2009] HCA 41; (2009) 239 CLR 27

24 Ibid at [47]

25 Ibid at [4]

26 [2017] HCA 34; (2017) ALR 405

27 Ibid at [14]

28 Ibid at [35]-[39]

29 [2018] FCAFC 131

30 Ibid at [105]

31 [1915] VLR 450

32 Ibid at 452

33 [2018] FCAFC 131 at [106]

34 As in force on 25 January 2009: See s.40A of the Act

35 (1997) 187 CLR 384

36 Ibid at 408

37 [2018] FCAFC 223

38 Ibid at [78]-[80]

39 See Minister’s Outline of Submissions dated 22 June 2018 at [25] and the Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [9]

40 [2014] FWCFB 9227

41 Ibid at [25]-[27]

42 Applicant’s outline of submissions dated 13 August 2018 at [6(a)]

43 Ibid at section B.2

44 Ibid at [41]-[43]

45 Ibid at [44]

46 Ibid at [45]

47 Ibid at [53]

48 Ibid at [131]-[132]

49 Ibid at [6(e)]

50 Ibid at section B.8

51 Ibid at [164]

52 Outline of Opening Submissions of the United Firefighters Union of Australia dated 14 August 2018 at [13]-[16]

53 Ibid at [26]

54 Ibid at [34]

55 Ibid at [46]

56 Ibid at [55]

57 Ibid at [10]

58 Ibid at [12]

59 Minister’s outline of submissions dated 22 June 2018 at [10] where second appearing

60 Ibid at [12]

61 Ibid at [18]

62 (1989) 168 CLR 461

63 (1991) 173 CLR 349

64 [2012] FCA 1402

65 Minister’s outline of submissions dated 22 June 2018 at [19]-[23]

66 Ibid at [39] and [40]-[51]

67 Ibid at [25]

68 Ibid at [26]

69 Ibid at [34]

70 Ibid at [53]

71 Ibid at [82]

72 (1991) 173 CLR 349

73 Ibid at 392

74 Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [9]

75 Ibid at [5]-[7]

76 Ibid at [13]

77 [2012] FCA 1402

78 Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [16]

79 Outline of Oral Submissions of the VEOHRC dated 31 August 2018 at [16]

80 (1989) 168 CLR 461

81 Section 117 of the Constitution provides: “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State”

82 (1989) 168 CLR 461 at [25]

83 Ibid at [21] and [24]

84 Ibid at [19]-[25]

85 Ibid at [27]

86 (1991) 173 CLR 349

87 Extracted in the judgment in Waters at [11]

88 (1991) 173 CLR 349 at [15]

89 Ibid at [17]

90 Ibid at [19]

91 Ibid at [20]

92 Ibid at [21]

93 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480

94 Section 153(3) contains the word “minimum” before “wages” which is consistent with the safety net nature of Modern Awards

95 [2012] FCA 480at [52]-[53]

96 Ibid at [54]

97 (1991) 173 CLR 349 at 392-93

98 [2012] FCA 480 at [54]

99 Ibid at [56]

100 Ibid at [57]

101 [2012] FCA 1402

102 Ibid at [89]

103 Ibid at [92]

104 Ibid at [95]

105 Ibid at [97]

106 [2012] FCA 480 particularly at [56]

107 Ibid at [52]-[58]

108 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

109 Re Cram; Ex parte The Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140 at 149

110 [2009] FCAFC 41; (2009) 176 FCR 53

111 Ibid at [38]-[41]

112 See Fair Work Act 2009 (Cth) s.134

113 [2012] FCA 480at [53]

114 In Qantas Airways Limited [2013] FWCA 8454, Commissioner Johns said at [7]: “The Commission accepts that indirect discrimination falls within the scope of sections 194 and 195 of the FW Act”. In Application by Commissioner for Public Employment [2010] FWAA 9372, Vice President Lawler assumed without deciding, that a reference in s.195 to “discriminates” extends to indirect discrimination. In Australian Catholic University Limited T/A Australian Catholic University [2011] FWA 3693, the Vice President said at [14]: “I am inclined to the view that the notion of discrimination in s.195 extends to indirect discrimination because that construction would seem to be a construction that better furthers the objects of the FW Act”; Decision of Bissett C in University of Melbourne Enterprise Agreement 2013 [2014] FWCA 1133 at [51]-[54]

115 [1989] 168 CLR 461 at 571

116 Australian Human Rights Commission Act 1986 s.3; Age Discrimination Act 2004 ss.14, 15; Disability Discrimination Act 1992 ss.5, 6; Racial Discrimination Act 1975 s.9; Sex Discrimination Act 1984 ss.5, 5A, 5B, 5C, 6, 7, 7AA, 7A, 7B; Equal Opportunity Act 2010 (Vic) ss.8, 9; Anti-Discrimination Act 1977 (NSW) s.24(1)(a) and (b); Anti-Discrimination Act 1991 (Qld) ss.10 and 11; Discrimination Act 1991 (ACT) ss.8(1) to (5); Equal Opportunity Act 1984 (SA) s.29(2)(a) and (b), 29(2a)(a) and (b), 29(3)(a) and (b), 29(4)(a) and (b); Equal Opportunity Act 1984 (WA) ss.8(1) and (2), 9(1) and (2), 10(1) and (2), 10A(1) and (2); Anti-Discrimination Act 1998 (Tas) ss.14 and 15; cf. Anti-Discrimination Act 1996 (NT) s.20.

117 (1991) 173 CLR 349 at 358

118 (2012) 208 FCR 178 at 204; [95]

119 Ibid at 203; [92]

120 Ibid at 204; [96]

121 For example s.218, s. 253 and Part 3-1 of the Act

122 (1944) 69 CLR 407

123 Ibid at 430-432

124 Age Discrimination Act 2004 ss.14, 15; Disability Discrimination Act 1992 ss.5, 6; Sex Discrimination Act 1984 ss.5, 5A, 5B, 5C, 6, 7, 7AA, 7A, 7B

125 See for example Sex Discrimination Act 1984 s.40(1)(g)

126 Fair Work Act 2009 (Cth) s.253(1)

127 See ss.51 and 52

128 Ibid at s.3(e)

129 Ibid at s.342(1) - Item 1(d)

130 Ibid at s.342(1) – Items 2(b) and 4(b)

131 Ibid at s.351(2)

132 See for example note to s.40(1) of the Sex Discrimination Act 1984; note to s.47(1) of the Disability Discrimination Act 1992; note to s.39(8) of the Age Discrimination Act 2004

133 Explanatory Memorandum to the Fair Work Bill 2008 at [149]

134 [2012] FWAFB 10080

135 Ibid at [53]–[54]

136 [2012] FCA 480; (2012) 205 FCR 227 at [57]

137 Ibid at [56]

138 See Street at 529, Gaudron J

139 Ibid at 510

140 Outline of submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at section B and Schedule thereto

141 See for example City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 438 and Amcor Limited v CFMEU (2005) 222 CLR 241 at 253 per Gummow, Hayne and Heydon JJ

142 [2015] FCAFC 142

143 Ibid at [5]

144 Ibid at [66]

145 Ibid at [67]

146 Ibid at [68]

147 Ibid at [108]-[109]

148 PR082005 dated 8 August 2005

149 [2016] FWCFB 8025

150 (2004) 188 FLR 1

151 Family Leave Provisions Case 2003-2005 at [70]

152 [2016] FWCFB 8025 at [136] and [144]

153 [2018] FWCFB 1692

154 Ibid at [392]

155 See for example Transcript at PN797 – PN807; PN1925 – PN1927

156 See Transcript at PN1721 – PN1722

157 Transcript at PN1724; PN1871

158 Exhibit 5 at [11]; Transcript at PN754

159 Exhibit 5 at [8]

160 See Transcript at PN738

161 Exhibit 5 at [14]

162 Minister’s Outline of Submissions dated 22 June 2018 at [84]-[88]

163 Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 at clauses 124.1.1 and 124.1.2

164 Ibid at clauses 44.1.1 and 44.1.2

165 See clauses 43.6.2 and 43.6.3 read with 43.6.1

166 For example, the FSCC Job Description at Schedule 8 provides that FSCC’s communicate internally with MFB Operations and MFB Departments

167 For example, clause 12A.3(f)

168 Fire Fighting Industry Services Award 2010, clause 17.11

169 Exhibit 10 at [62]-[71]; Transcript at PN1726-PN1739

170 Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 at clauses 12.3.10 and 12.3.12

171 Applicant’s outline of submissions dated 13 August 2018 at [152]

172 See Schedule 6 of the Agreement

173 See for example clause 12A.3.(f) of the Agreement

174 Minister’s outline of submissions dated 22 June 2018 at [98]

175 Ibid at [99]

176 Outline of Opening Submissions of the United Firefighters Union of Australia dated 14 August 2018 at [75]

177 Minister’s outline of submissions dated 22 June 2018 at [105]

178 Ibid at [108]

179 Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [27]

180 Applicant’s outline of submissions dated 13 August 2018 at [160]

181 Outline of Opening Submissions of the United Firefighters Union of Australia dated 14 August 2018 at [75(f)]

182 Minister’s outline of submissions dated 22 June 2018 at [111]

183 Applicant’s outline of submissions dated 13 August 2018 at [162]

184 Minister’s outline of submissions dated 22 June 2018 at [170]

185 For example, in respect of rates of pay, leave entitlements and allowances: see (eg) clauses 43.5 (loading); clause 85.8.1 (travel allowance); and clause 101.1.1 (annual leave)

186 For example (i) Dispute Resolution Officer – clause 16A; and (ii) Disputes Panel – clause 50

187 For example Clause 16 – Consultation

188 PR910205 dated 12 October 2001

189 Ibid at [30]

190 Australian Industry Group v Fair Work Australia [2012] FCAFC 108; (2012) 205 FCR 339 at [18] and [66]; see also Klein at [221] and United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1; (2015) 228 FCR 497 at [219]

191 Australian Industry Group v Fair Work Australia [2012] FCAFC 108; (2012) 205 FCR 339 at [89]

192 [2012] FCAFC 108; (2012) 205 FCR 339

193 Klein at [221]

194 [2015] FCAFC 1

195 United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17

196 [2015] FCAFC 1 at [229]

197 [2013] FCA 1351

198 Ibid at [82]

199 Ibid at [88]-[89]

200 [2014] FCAFC 84

201 Ibid at [128]

202 Minister’s Outline of Submissions dated 22 June 2018 at [118]

203 Ibid at [121]

204 Ibid at [122]

205 Ibid at [170]

206 Outline of Submissions of the Victorian Equal Opportunity and Human Rights Commission dated 22 June 2018 at [37]-[38]

207 Outline of Opening Submissions of the United Firefighters Union of Australia dated 14 August 2018 at [81]-[82]

208 [2015] FCAFC 1

209 Ibid at [228]

210 Ibid

211 [2012] FCA 1402 at [225]

212 Ibidat [222]

213 Ibid

214 [2015] FCAFC 1 at [3]

215 Ibid at [234]

216 The impugned clauses are set out at Annexure 3 of the Minister’s Outline of Submissions dated 22 June 2018

217 Canavan Building Pty Ltd [2014] FWCFB 3202; 244 IR 1 at [36]; Australian Federation of Air Pilots v HNZ Australia Pty Ltd[2015] FWCFB 3124 at [29];Construction, Forestry, Mining and Energy Union v CSRP Pty Ltd[2017] FWCFB 2101 at [33]

218 Applicant’s outline of submissions dated 13 August 2018 at [179]

219 See for example s.107(3); s.110(3) and s.111(3)

220 See for example s.107(5)

221 The agreement lodged for approval makes reference to clause 135, however, it is uncontroversial that this is a typographical error and the reference should be to clause 124

222 Fair Work Act 2009 (Cth) s.65(5)

223 Minister's outline of submissions dated 22 June 2018 at [196]–[204]

224 Ibid at [205]

225 Ibid at [206]

226 Ibid at [207]–[208]

227 Ibid at [209]–[232]

228 For this proposition the Minister relies on the Explanatory Memorandum to the Fair Work Bill at [675] which states: “For an agreement to fall within paragraph 172(1)(b), the term needs to relate to the employee organisation’s legitimate role in representing the employees to be covered by the agreement.” The Minister also cites Airport Fuel Services Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 4457 at [22]; AMWU v Visy Board Pty Ltd T/A Visy Board [2018] FWCFB 8 at [18]; CFMEU v Baulderstone Pty Ltd [2013] FWC 2671 at [50]

229 Minister's outline of submissions dated 22 June 2018 at [233]–[241]

230 Ibid at [242]–[245]

231 Ibid at [247]-[251]

232 Fair Work Act 2009 (Cth) s.188(c)

233 See s.253(2)

234 [1984] HCA 53; (1984) 154 CLR 472

235 [1987] HCA 28; (1987) 163 CLR 117

236 [1984] HCA 53; (1984) 154 CLR 472 per Mason J at 490-491 and per Murphy J at 493; [1987] HCA 28; (1987) 163 CLR 117 at 136

237 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board[2016] FWCFB 2894 at [26] citing Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited (1987) 163 CLR 117 at 133-136

238 Fair Work Act 2009 (Cth) s.193(1)

239 Ibid at s.193(4)

240 Ibid at s.193(5)

241 Construction, Forestry, Mining and Energy Union v SESLS Industrial Pty Ltd [2017] FWCFB 3659 at [23]

242 Fire Fighting Industry Award 2010 at clause 4 and Schedule B

243 Minister’s outline of submissions dated 22 June 2018 at [140]

244 Ibid at [143]

245 Fire Fighting Industry Award 2010 at Schedule B, clause B.1.5

246 Minister’s outline of submissions dated 22 June 2018 at [144]-[163]

247 Fire Fighting Industry Award 2010 at clauses 22.2 and 22.3

248 Ibid at clauses 10.3(b) and (c)

249 Ibid at clause 10.3(d)

250 Minister’s outline of submissions dated 22 June 2018 at [145]

251 Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 at clause 101.1.1

252 Ibid at clause 92.1.2

253 Ibid at clause 94.1

254 Ibid at clause 93.2.1

255 Ibid at clause 94.1

256 Ibid at clause 95

257 Ibid at clause 113

258 Ibid at clause 115.4.2

259 Ibid at clause 115.10.4

260 Ibid at clause 96.1

261 Ibid at clause 97

262 Ibid at clause 98.4

263 Ibid at clause 99

264 Ibid at clause 100

265 Ibid at clause 106

266 Ibid at clause 107.1

267 Ibid at clause 107.2

268 Ibid at clauses 107.3 and 107.4

269 Ibid at clause 108.1

270 Ibid at clause 108.3

271 Ibid at clause 109

272 Ibid at clause 111

273 $17.83 under the Agreement, a figure which will further increase by 19% upon commencement (see clauses 85.2, 85.6 and Schedule 4). This compares with $15.45 under the Award (see clause 17.2)

274 $17.83 under the Agreement, which will further increase by 19% upon commencement (see clauses 85.2, 85.7.1 and Schedule 4)

275 Clause 85.8.1 of the Agreement, and clause 17.3(a) of the Award

276 $378.18 per day for capital cities and $325.52 for other places in Australia under the Agreement, figures which will further increase by 19% upon commencement (see clauses 85.2, 85.5 and Schedule 4). This compares with $262 per day for capital cities and $168.73 for other places in Australia under the Award (see clause 17.3(d))

277 $1.31 per kilometre travelled under the Agreement, a figure which will further increase by 19% upon commencement (see clauses 85.2, 85.9 and Schedule 4). This compares with $0.78 per kilometre for motor vehicles and $0.26 for motorcycles under the Award (see clause 17.4)

278 Clause 85.10.1 of the Agreement

279 $4.16 per day shift or $5.40 per night shift, figures which will further increase by 19% upon commencement (see clauses 85.2, 85.13.3 and Schedule 4)

280 $1,461.32 for each 30 minutes of additional total daily travel time, a figure which will further increase by 19% upon commencement (see clauses 81.11 and 85.2)

281 $19.72 per week, a figure which will further increase by 19% upon commencement (see clauses 85.2, 85.14 and Schedule 4)

282 Compare clause 85.18 of the Agreement (as uplifted by 19% upon commencement by clause 85.2) with clause 17.7 of the Award

283 Clause 85.19 of the Agreement requires reimbursement of taxi fares, accommodation and/or airfares where applicable in circumstances where the employee considers it is not safe for them to drive after they have finished working

284 Compare clause 85.13.1 of the Agreement (as uplifted by 19% upon commencement by clause 85.2) with clause 17.8 of the Award

285 A minimum of one hours’ pay at ordinary rates for each discrete contact (see clause 85.13.2)

286 Compare clause 85.12.1 of the Agreement with clause 17.9 of the Award

287 $1215.58 per year, a figure which will further increase by 19% upon commencement (see clauses 85.2, 85.17.1 and Schedule 4)

288 $73.14 per week under the Agreement, a figure which will further increase by 19% upon commencement (see clauses 85.16.1, 85.2 and Schedule 4). This compares with $61.13 under the Award (being 7.3% of the standard rate per week: see clause 17.11)

289 Applicant's outline of submissions dated 13 August 2018 at [279]

290 Ibid

291 Clause 133.1 of the Agreement compared to clause 15.1 of the Award