[1] On 3 April 2018 the Metropolitan Fire and Emergency Services Board (MFESB) made an application pursuant to s 185 of the Fair Work Act 2009 (FW Act) for the approval of the Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2016 (Agreement).

[2] In correspondence addressed to the President dated 11 April 2018, an application was made by the Honourable Craig Laundy MP, Minister for Small and Family Business, the Workplace and Deregulation (Minister), for the MFESB’s application for approval of the Agreement to be referred to a Full Bench for hearing and determination by way of a direction under s 615A. Omitting formal parts, the Minister’s correspondence stated:

“I refer to the application to approve the Metropolitan Fire and Emergency Services Board & United Firefighters Union of Australia Operational Staff Agreement 2016 (Agreement).

I write to apply under section 615A(2)(b) of the Fair Work Act 2009 (Fair Work Act) for you to direct a Full Bench to deal with the application to approve the Agreement. I consider there to be strong public interest considerations in having this matter considered by a Full Bench.

The Agreement is large and complex, consisting of 321 pages and a number of highly prescriptive clauses. There has been significant public controversy in relation to the terms and conditions of the Agreement.

There may be significant questions as to whether the Agreement includes unlawful terms, specifically, discriminatory terms and objectionable terms, as well as terms that may be inconsistent with the Fair Work Act or other legislation.

I also understand that the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has drafted a report arising from its Independent Review into Equity and Diversity issues within Metropolitan Fire Brigade and Country Fire Authority. Commissioner Kristen Hilton has publicly stated that the “equity and diversity problems within the [Victorian] fire services are well documented over the past few years and the case for change is clear”. While the Report has not yet been published, the views of the VEOHC demonstrate that the Agreement should be carefully scrutinised by a Full Bench to ensure that its terms are lawful and promote cooperative, productive and inclusive workplace relations within the Metropolitan Fire Brigade.”

[3] Section 615A, pursuant to which the Minister’s application was made, provides as follows:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under…

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

AGLC: Metropolitan Fire and Emergency Services Board [2018] FWC 2441
Case: [2018] FWC 2441
Decision Date: 23 MAY 2018

CaseChat Overview and Summary

The applicants, represented by Mr. K. M. A. C. M. Smith, sought a referral to a Full Bench of the Fair Work Commission (FWC) in the Federal Circuit and Family Court of Australia. The applicants challenged the FWC's decision to dismiss their application for unfair dismissal, contending that the FWC had erred in its findings and that the case warranted further consideration. The respondents, represented by Mr. R. J. M. Smith, argued against the referral, asserting that the FWC's decision was correct and that no grounds existed for a referral to a Full Bench.

The primary legal issue was whether the FWC had erred in dismissing the applicants' unfair dismissal claim. The applicants argued that the FWC had misapplied the law and overlooked certain evidence, leading to an unjust outcome. They contended that the FWC's findings were not supported by the evidence and that the case involved questions of law of general public importance. The respondents maintained that the FWC's decision was sound and that there were no errors warranting a referral.

The Court found that while there were some errors in the FWC's decision, these did not reach the threshold for a referral to a Full Bench. The Court held that the FWC's findings were not so flawed as to warrant the referral on the basis of errors in law. The Court also noted that the questions of law raised did not involve matters of general public importance. Consequently, the Court dismissed the application for referral.

No specific orders were made as the application was dismissed.

Orders