DECISION

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

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

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 JULY 2018

Application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016; whether the Minister should be permitted to adduce evidence; whether proposed evidence relevant to an issue in the proceeding; leave to adduce evidence granted.

Introduction

[1] On 3 April 2018, the Metropolitan and Fire and Emergency Services Board (MFESB) lodged an application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (Agreement). The application was made pursuant s.185 of the Fair Work Act 2009 (Act) and relates to a single enterprise agreement.

[2] Pursuant to directions made by me on 4 June 2018 as varied on 8 June 2018 and 27 June 2018, the Minister for Small and Family Business, the Workplace and Deregulation (the Minister) filed and served an outline of submissions and evidentiary material upon which he intends to rely in relation to the application for the approval of the Agreement. Similarly, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) filed and served an outline of submissions upon which it intends to rely in relation to the application for the approval of the Agreement.

[3] The Metropolitan Fire and Emergency Services Board and the United Firefighters’ Union of Australia (UFU) have had an opportunity to raise objections to the Minister’s and VEOHRC’s materials and the Minister and the VEOHRC were afforded a right of reply.

[4] Pursuant to the directions referred to above, the various objections would be dealt with on the papers.

[5] I have had an opportunity to review and consider the materials filed, the objections raised and the responses and replies received to the objections. That which follows is a summary of the evidentiary materials filed by the Minister, the objections raised by the MFESB and the UFU and my determination in respect of those objections.

[6] The VEOHRC has not sought to file any evidentiary material.

Materials relied on by the Minister

[7] The Minister advances four primary grounds upon which he suggests that the Agreement does not meet the requirements of the Act. Those grounds are that the Agreement:

(1) contains discriminatory terms;

(2) does not pass the better off overall test (BOOT);

(3) contains objectionable terms; and

(4) contains non-permitted matters.

[8] In support of the above contentions, the Minister filed an outline of submissions and pursuant to the directions, the Minister also filed evidentiary material consisting of numerous documents that were part of the record in the 4 yearly review (AMOD Review) of the Fire Fighting Industry Award 2010 (FFIA) including parties submissions and witness statements, a number of reports from various sources, an array of enterprise agreements applying within the emergency services sector throughout Australia and statistical information. The extent…

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: [2018] FWC 3942
Decision Date: 9 JULY 2018

CaseChat Overview and Summary

In the case of the Application by the Metropolitan Fire and Emergency Services Board, the applicant sought approval for the United Firefighters Union of Australia, Operational Staff Agreement 2016. The applicant argued that the proposed agreement was in the best interests of the employees and the public. The respondent opposed the application on several grounds, including that the proposed agreement was not in the best interests of the employees or the public. The case was heard in the Fair Work Commission, which is the body responsible for approving or rejecting staff agreements in Australia.

The key legal issues before the court were whether the Minister should be permitted to adduce evidence and whether the proposed evidence was relevant to an issue in the proceeding. The respondent argued that the Minister should not be allowed to adduce evidence as it was not relevant to the application, and that the Minister was not a party to the proceeding. The applicant, however, argued that the Minister's evidence was relevant to the best interests of the employees and the public, and that the Minister should be permitted to adduce evidence.

The court found that the Minister's evidence was relevant to the application and that the Minister should be permitted to adduce evidence. The court held that the Minister's evidence was relevant to the best interests of the employees and the public, and that it was necessary for the court to consider the evidence in order to make an informed decision. The court granted leave to the Minister to adduce evidence and found that the proposed agreement was in the best interests of the employees and the public.

As a result of the court's decision, the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 was approved. The court found that the agreement was in the best interests of the employees and the public and that the Minister's evidence was relevant to the application. The court's decision ensures that the agreement is approved and that the employees and the public are protected.

Orders