DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metropolitan Fire and Emergency Services Board
(AG2018/1278)

METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIREFIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF AGREEMENT 2016

Fire fighting services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 FEBRUARY 2019

Application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016; undertakings provided; whether undertakings meet concerns about terms of the agreement contravening s.55; undertakings meet concerns; agreement with undertakings approved.

[1] The Metropolitan Fire and Emergency Services Board (MFB) applied under s.185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement titled the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (Agreement). The Agreement was made on 16 March 2018 and the application was lodged with the Commission on 3 April 2018. The United Firefighters Union of Australia (UFU) was 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.

[2] The relevant background and proceedings history are set out in my earlier decision dealing with the application for approval of the Agreement 1 and need not be repeated here. In that decision I concluded that:

• the Agreement does not include any discriminatory terms; 2

• the Agreement does not include any objectionable terms and the requirement in s.186(4) is met; 3

• the Agreement is predominantly about matters that pertain to the requisite relationships; 4

• the Agreement passes the BOOT and the requirement in s.186(2)(d) is met; 5

• I was not satisfied that particular terms of the Agreement do not contravene s.55 of the Act and that the requirement in s.186(2)(c) has been met. 6 The terms of the Agreement that were of concern were:

• Clause 43.3;

• Clause 43.4;

• Clause 43.6.3; and

• Clause 44.3.1.

• save for the concerns in relation to s.55, I was satisfied that the approval requirements in ss.186 and 187 have been met. 7

[3] I also noted that the concerns identified in the decision were amenable to undertakings. I therefore allowed MFB a period of 21 days (which was subsequently extended) within which to provide any undertakings it wishes and to seek the views of the UFU before filing any undertaking.

[4] Following correspondence between the MFB and my Chambers in relation to my concerns, on 14 February 2019, MFB proposed undertakings, a copy of which is attached in Annexure A.

[5] It is necessary to examine the relevant provisions concerning the proffering and acceptance of undertakings and then to consider the nature of the concerns sought to be addressed by the undertakings in their statutory context in order to determine whether the undertaking meets that concern.

[6] The capacity of the Commission to accept an undertaking in relation to the approval of an enterprise agreement is dealt with…

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] FWCA 1023
Decision Date: 18 FEBRUARY 2019

CaseChat Overview and Summary

The Metropolitan Fire and Emergency Services Board, along with the United Firefighters Union of Australia, applied for the approval of the Operational Staff Agreement 2016. This application was before the court to address concerns that certain terms of the agreement contravened section 55 of the relevant legislation. The union and the board had provided undertakings in an effort to address these concerns.

The legal issues before the court involved determining whether the undertakings provided by the parties sufficiently addressed the concerns about the terms of the agreement. Specifically, the court needed to assess whether the undertakings effectively mitigated the potential contravention of section 55. The court's role was to evaluate the adequacy of these undertakings in ensuring compliance with the statutory provisions.

After reviewing the terms of the agreement and the undertakings provided, the court concluded that the undertakings met the concerns raised about potential contraventions of section 55. The court found that the undertakings sufficiently addressed the issues to ensure compliance with the relevant legislation. Consequently, the court approved the agreement with the undertakings in place.

The final orders of the court were that the Operational Staff Agreement 2016, as modified by the undertakings, be approved. This approval ensures that the agreement can proceed with the necessary compliance safeguards in place.

Orders