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Application by Metropolitan Fire and Emergency Services Board

Application by Metropolitan Fire and Emergency Services Board

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Case Copied 15 January 2019 72 min read

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[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 106
Decision Date: 15 JANUARY 2019

CaseChat Overview and Summary

The Metropolitan Fire and Emergency Services Board sought approval of the Operational Staff Agreement 2016, which was subject to a dispute with the United Firefighters Union of Australia. The crux of the disagreement was whether the agreement contained terms that discriminated against or were objectionable in a manner that contravened section 55 of the relevant legislation. The court had to determine if the terms in question were discriminatory or objectionable and, if so, whether they breached section 55. Additionally, the court needed to consider whether the terms contravened the better off overall test and if the agreement, as a whole, passed this test. The Board argued that the terms did not contravene section 55, but the court found otherwise, noting that the terms were indeed discriminatory and objectionable. The court emphasised that the agreement failed the better off overall test and that the terms contravened section 55. Despite this, the court offered the Board an opportunity to provide further undertakings to address the issues identified.

Orders