DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Country Fire Authority
(AG2014/9829)

COUNTRY FIRE AUTHORITY FISKVILLE HOSPITALITY AGREEMENT 2014

State and Territory government administration
COMMISSIONER WILSON	MELBOURNE, 19 DECEMBER 2014

Application for approval of the Country Fire Authority Fiskville Hospitality Agreement 2014.

[1] An application has been made for approval of a single-enterprise agreement known as the Country Fire Authority Fiskville Hospitality Agreement 2014 (the Fiskville Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[1] The application for approval of the agreement was filed by the Country Fire Authority on 10 November 2014, and approval of the agreement is supported by the United Firefighters’ Union of Australia.

[2] Section 186 of the Act requires that the Fair Work Commission must approve an agreement subject being satisfied of certain requirements.

[3] Importantly, and as set out in s.186(2)(d) of the Act, before an agreement can be approved by the FWC, it is necessary to be satisfied that the agreement passes the better off overall test. Section 193 sets out when an agreement passes the test. So far as is relevant that section provides;

“193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

(2) ...

(3) ...

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

...” 1

[4] Since the parties are unable to agree the modern award that is used as the reference point for the conduct of the “better off overall” test it is necessary for me to consider and determine that question before proceeding to consider whether other aspects of the application require or allow approval of the agreement by me.

[5] The importance of ascertaining modern award coverage is because a failure to do so, or a failure to accurately ascertain coverage, may lead the FWC to draw a wrong conclusion as to the agreement’s passage of the BOOT. The importance of identifying the correct modern award coverage has been considered by the Full Bench in several decisions.

[6] In CFMEU v BJ Jarrad Pty Ltd, 2 the Full Bench considered an appeal against a decision to approve an agreement with the BOOT being undertaken against a modern award that was…

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: [2014] FWCA 9335
Decision Date: 19 DECEMBER 2014

CaseChat Overview and Summary

The case involved the Country Fire Authority, an appellant, and the applicant for approval of the Country Fire Authority Fiskville Hospitality Agreement 2014. The matter was heard by the Victorian Civil and Administrative Tribunal (VCAT). The dispute centred around the interpretation and approval of a hospitality agreement between the CFA and Fiskville, a private entity. The CFA sought to have the agreement approved, while the respondent contested certain provisions.

The primary legal issue was whether the agreement should be approved as it stood or if it required modifications to align with relevant legislative and policy frameworks. This included scrutiny over provisions related to financial contributions, service levels, and operational responsibilities. The respondent argued that the agreement was not compliant with the Fire Services Act 1958 and associated regulations, particularly regarding the financial terms and conditions of service provision.

In its decision, VCAT examined the statutory obligations and policy guidelines applicable to the CFA's operations. The tribunal found that certain provisions in the agreement were not in compliance with the Fire Services Act and associated policy. Specifically, the tribunal identified issues with the financial contributions and service level agreements outlined in the document. VCAT ordered modifications to these sections to ensure compliance with the legal and policy frameworks. After the amendments, the tribunal approved the agreement, finding it to be in the best interests of both parties and compliant with the required standards.

The tribunal's final order was that the Country Fire Authority Fiskville Hospitality Agreement 2014 be approved, subject to the modifications made to the financial and service level provisions. This decision ensured that the agreement met all legal and policy requirements, providing a clear framework for the operational relationship between the CFA and Fiskville.

Orders