Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia
[2014] FWC 7776
•3 NOVEMBER 2014
| [2014] FWC 7776 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Metropolitan Fire & Emergency Services Board
v
United Firefighters’ Union of Australia
(AG2014/5121)
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIREFIGHTERS UNION OF AUSTRALIA, ASSISTANT CHIEF FIRE OFFICERS AGREEMENT 2010 & METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIREFIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF AGREEMENT 2010.
Fire fighting services | |
COMMISSIONER WILSON | MELBOURNE, 3 NOVEMBER 2014 |
Application for termination of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 & Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010.
1. INTRODUCTION AND SUMMARY OF DECISION
2. GLOSSARY OF TERMS
3. RELEVANT LEGISLATIVE PROVISIONS
4. BACKGROUND TO THE APPLICATION
4.1 Submissions in support of the MFB’s Application
- Unreasonable restrictions on its operations
Provisions that offend the Re AEU implied limitation
4.3 Consideration of the application in respect of the 2010 Agreements separately
5. BACKGROUND TO THE AGREEMENTS
5.1 1999 Agreement
5.2 2002 Agreement
5.3 2005 Agreement
5.4 2010 Agreement
6. THE HEARING
6.1 The scope of witness evidence and submissions
6.2- Disputes featuring in evidence and submissions
- Routine managerial or public sector decision making
Property holdings
Operational MFB fire fighting issues
Interoperability
7.1- Introduction
7.2- Is termination of either Disputed Agreement “not contrary to the public interest”?
- Summary - public interest
- Appropriate to terminate; views of those covered
The MFB views
Views of the employees and the UFU
Summary - views of employees and the UFU
Summary - views of those covered
Appropriate to terminate; circumstances of those covered
Circumstances of the MFB
Circumstances of the employees
Circumstances of the UFU
Summary - circumstances of those covered
Appropriate to terminate; likely effect of termination on those covered
Likely effect of changes to conditions of employment
Likely effect of changes in the consultation framework and dispute resolution procedure
The potential for OHS connected disputes to no longer be progressed
Long Duration Breathing Apparatus Training Course
Issue Regarding Ladder Platform Replacement
Issue Regarding Teleboom Replacement Project
Issue Regarding use of Mark V Trucks and Light Vehicles for EMR Heatwave Response
The potential effects if Undertakings are enforceable
Summary - likely effects of termination on the parties
Likely effect of changes to the parties’ bargaining position
Likely effect of potential consequential changes for the MFB, such as to its performance or productivity
Likely effect of potential consequential changes for employees, such as for their safety at work
Likely effect of changes for the UFU
Summary - likely effects of termination of the 2010 Agreements
Appropriate to terminate; “all the circumstances”
Summary – appropriate to terminate
[1] On 28 March 2014, the Metropolitan Fire and Emergency Services Board (MFB) made application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009 (the FW Act) for the termination of two enterprise agreements after their nominal expiry date.
[2] A single application was made by the MFB to terminate the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 1 (referred to as the 2010 Operational Staff Agreement) and the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 20102 (referred to as the 2010 ACFO Agreement). Collectively, the MFB’s application is referred to as the “Enterprise Agreement Termination Application” and the agreements that are the subject of the application are referred to as the “2010 Agreements”.
[3] Both Agreements were approved by the Commission on 23 September 2010, and both reached their nominal expiry dates on 30 September 2013. 3
[4] An application for termination of an enterprise agreement after its nominal expiry date is considered against the criteria set out in s.226 of the FW Act. Those criteria require the Commission to be satisfied that termination is not contrary to the public interest (s.226(a)) and to consider whether it is appropriate to terminate the agreement, taking into account the views and circumstances of those covered by the agreement, including the likely effects of termination on them (s.226(b)).
[5] For the reasons set out in this decision, while I am satisfied that termination of the 2010 Agreements is not contrary to the public interest, I do not consider it is appropriate to terminate the 2010 Agreements, for reason of the likely effects of termination on the employees covered by the agreements and the United Firefighters’ Union of Australia (UFU), being an employee organisation covered by the agreements. As a result, my decision is that the 2010 Agreements should not be terminated.
2. GLOSSARY OF TERMS
[6] The following definitions and abbreviations are used throughout this decision unless the context requires otherwise;
2010 Agreements | The 2010 ACFO Agreement and the 2010 Operational Staff Agreement, together |
2010 ACFO Agreement | Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 |
2010 Operational Staff Agreement | Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 |
Commission | Fair Work Commission |
FW Act | Fair Work Act 2009 (Cth) |
Metropolitan District | The region in which the MFB provides its fire suppression and fire prevention services, as defined in s.4 of the MFB Act |
MFB | Metropolitan Fire and Emergency Services Board |
MFB Act | Metropolitan Fire Brigades Act 1958 (Vic) |
Modern Award | Firefighting Industry Award 2010 MA000111 |
OHS Act | Occupational Health and Safety Act 2004 (Vic) |
Re AEU | Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 |
UFU | United Firefighters’ Union of Australia |
WR Act | Workplace Relations Act 1996 (Cth) |
3. RELEVANT LEGISLATIVE PROVISIONS
[7] The Enterprise Agreement Termination Application is made under s.225 of the FW Act, which provides as follows;
225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
[8] Sections 226 and 227 are also relevant to this decision;
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.
4. BACKGROUND TO THE APPLICATION
4.1 Submissions in support of the MFB’s Application
[9] The MFB is constituted by the Melbourne Fire Brigades Act 1958 (Vic) (the MFB Act), which establishes the Metropolitan Fire and Emergency Services Board (the MFB Board) in order to provide fire and emergency services to a large part of metropolitan Melbourne.
[10] Section 7 of the MFB Act provides for the functions of the MFB Board, including providing for fire suppression, fire prevention services and emergency prevention and response services in the “metropolitan district”, being the municipalities, port of Melbourne and riverways and waterways defined by the Act to comprise the district. 4 Section 7AA provides a duty for the MFB to assist in the response to any major emergency occurring within Victoria. Section 7A obliges the MFB Board in performing its functions to contribute to a whole of sector approach to emergency management and to “promote a culture within the emergency management sector of community focus, interoperability and public value”.
[11] The MFB employs more than 2,100 people comprising around 1,800 operational firefighters and 300 corporate staff. Its “baseline” operational staffing consists of 270 operational personnel on shift at any one time, located at 47 fire stations throughout the Metropolitan District. The Metropolitan District covers more than 1,000 square kilometres, and the MFB estimates it protects almost 4 million Melbourne residents, workers and visitors. 5 Fire stations are located and staff rostered in the ways they are, in order “to ensure that emergency response standards of 7.7 minutes to structure fires, and 9.2 minutes to Emergency Medical Response incidents are maintained for 90 percent of those incidents”.6
[12] The MFB sets out the following broad reasons for having made the Enterprise Agreement Termination Application;
“There are significant problems with the content of the Operational Staff Agreement (and the ACFO Agreement which contains many identical provisions). First, there are provisions which seriously interfere with the process of change and improvement within the MFB and unreasonably impede the capacity of the MFB to carry out its statutory functions effectively (see Part D below). Secondly, there are provisions which offend the implied constitutional limitation as enunciated by the High Court of Australia in Re Australian Education Union; Ex parte State of Victoria.
The MFB has sought to bargain with the UFU to address these and other issues. But the UFU has shown no real interest in engaging in bargaining about these matters. The UFU has no incentive to bargain about these matters. It knows that the MFB cannot make any significant changes given the enormous control the UFU already has over change processes. Basically, no progress has been made in bargaining for replacement agreements and there is no realistic prospect of reaching an agreement any time soon.” 7 (citation and submission cross-references omitted)
[13] The MFB submits the Commission’s decision making process requires an exercise of discretionary judgement, particularly on the question of appropriateness, in which regard certain other provisions of the Act apply as well - the performance of the Commission’s functions and exercise of its powers must be in a manner that is “fair and just” (s 577(a)); “promotes harmonious and cooperative workplace relations” (s 577(d)); takes into account relevant objects of the Act and its parts (s 578(a)); and has regard to “equity, good conscience and the merits of the matter” (s 578(b)). 8 The approach by the Commission to the provisions of s.226 must be to apply words of the section; extra words or requirements should not be read into the application of the section.9
[14] The MFB submits about the public interest that;
“The termination of the Agreements would not be contrary to the public interest. It would remove problematic content of numerous provisions of the Agreements, both from a Re AEU perspective and from a basic productivity perspective. It would not undermine bargaining – indeed, it would leave incentives to bargain, more so than under the current circumstances.” 10
[15] The “problematic content of numerous provisions of the Agreements” includes provisions the MFB consider unreasonably restrict its operations 11 as well as provisions that, in its view offend the implied constitutional limitation12 set out by the High Court of Australia in the matter of Re Australian Education Union; Ex parte State of Victoria (Re AEU).13
Unreasonable restrictions on its operations
[16] In summary, the MFB identified the provisions that unreasonably restrict its operations as follows;
● the provisions relating to consultation and dispute resolution are overly onerous and mostly unworkable; 14
● the combination of the consultation obligations with the “status quo” requirement, 15 such as that contained in the Operational Staff Agreement at cl.19.4, which provides that, during progression through the defined dispute procedure, “work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”;
● the clauses regarding consultation over the introduction of change or variation to policy; 16
● the combination of these matters and the identified clauses means that projects and initiatives are delayed or compromised and, in some cases, abandoned; at best the combination of these matters stifles creativity and innovation and at worst “it delays or prevents better service delivery and improved safety outcomes for employees and the public”. 17
Provisions that offend the Re AEU implied limitation
[17] The MFB identified three broad categories of provisions of the 2010 Agreements it says offend the Re AEU implied limitation. These were 18;
● provisions requiring the MFB to directly engage employees to perform work covered by the agreement, preventing it from obtaining services through third-party providers;
● provisions requiring the MFB to employ a predetermined minimum number of persons and which require no changes in relation to overall crowing numbers and rank/classification numbers without the agreement of the UFU;
● provisions restricting the MFB’s capacity to transfer employees in a manner that is inconsistent with the “promotion and transfer” them of the implied Constitutional limitation.
[18] The detail of the clauses the MFB argues are contrary to the implied constitutional limitation are set out in Appendix A to its Exhibit MFB 1 19. The MFB argues that even though the provisions were agreed to by the MFB, such fact does not alter their invalidity.20 After traversing the detail of its objections, it summarises the provisions of the 2010 Operational Staff Agreement which it argues are inconsistent with the implied Constitutional limitation. The following is taken from a document provided to the Commission by the MFB on 30 June 2014, and was put forward as a “clean (v4) copy of an amended Annexure A to the Applicant’s Outline of Submissions”; however the document, provided in PDF form, continues to include marked-up changes. For completeness, the relevant part of the document as provided is reproduced without alteration;
[19] The MFB submits about these matters;
“These provisions also have a number of unfortunate side-effects. For example, they make it more difficult for the MFB to respond in a flexible manner to seasonal fluctuations in levels of fire risk or to serious emergency situations. They also make it more difficult for the MFB to redress the gender imbalance in its workforce (presently only 3.42% of operational staff are female) because female workers are at times more likely to be attracted by part-time than full-time work. It also serves to prevent the engagement of older workers (such as retirees) who might be interested in part-time work but who would not be able and/or interested in working on a full-time basis. Ironically, these restrictions have the further effect of limiting the total number of positions available in the firefighting service, because it can reasonably be anticipated that the MFB would be able to offer more jobs if it could engage employees on a more flexible basis.” 21
[20] Relevant to these proceedings and the factors that must be taken into account in making a decision, the MFB argues that;
“The existence of content in the 2010 Agreements that on its face, is inconsistent with the constitutional limitations expressed in Re AEU could raise a public interest. That is, such content would be an attempt or in fact limit the ability of the State of Victoria, through its agencies, to operate as it wants to discharge its functions as a Government. It certainly would be not contrary to the public interest to terminate such an agreement. This would also be a consideration under s.226(b). Similar observations may be made about non-pertaining matters such as bans on contractors.” 22
[21] The MFB also submits that since April 2013, it has endeavoured to engage in good faith bargaining with the UFU but has been unsuccessful in doing so;
“The MFB has tried unsuccessfully to progress the negotiations and there is no realistic prospect of reaching a replacement agreement.
After more than a year of supposed negotiations, including 17 scheduled meetings (two of which were under the auspices of the Commission and two which the UFU did not attend), the parties have not reached agreement on even one substantive issue.
In no small measure, this has been due to the bargaining conduct of the UFU. The UFU has shown little inclination to negotiate on the substance of the issues. Instead, it has engaged in surface bargaining by raising procedural issues and other insubstantial side issues in order to give the appearance of being prepared to negotiate, without in fact doing so. The specific concerns about the UFU’s bargaining conduct were canvassed in the application brought by the MFB for good faith bargaining orders in December 2013 (B2013/1564). The MFB discontinued that application in February 2014 after some marginal improvement in the UFU’s bargaining behaviour. This appearance proved illusory. Additional issues arose that required further notice to be given under s.229 of the FW Act.
The MFB submits that the UFU’s dilatory approach to bargaining reflects the fact that it has little or no incentive to bargain. The UFU is not prepared to put at risk any of its veto powers in a genuine negotiation process. It can continue to derive the benefit of these provisions, whilst the MFB’s capacity to conduct its undertaking in an effective and efficient manner is severely circumscribed by their continued operation.” 23
[22] The MFB draws from these circumstances the conclusion that;
“The continuation of the Agreements will unreasonably hinder or impair the process of change and improvement at the MFB. Consistently with the observations of Boulton J in Mt Thorley 24 at paras [47] and [48] the negative impacts of the continuing operation of the Agreements on change and improvement mean that it would not be contrary to the public interest that the agreements be terminated.”25
[23] In forming a view about whether it is appropriate to terminate an agreement for which application has been made pursuant to s.225, the FWC must take into account all the circumstances including the views of the employees, each employer, and each employee organisation (if any), covered by the agreement, and the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them. 26
[24] In relation to consideration of the likely effect that the termination will have on employees, the MFB submits it “will provide terms and conditions to ACFOs and other operational staff generally consistent with the terms of the Agreements, except for the consultation and dispute resolution clauses and the other clauses that require the UFU’s agreement to operational decisions, and those clauses which are inconsistent with the implied constitutional limitation”. 27 In relation to the identified exception of the consultation and dispute resolution clauses, the MFB submits it will observe the consultation term at clause 8 of the Modern Award, the Fire Fighting Industry Award 2010, and the dispute resolution procedure at clause 9 of the award.28
[25] The MFB argues that termination of either agreement will not deprive employees of their capacity to have their industrial interests represented by the UFU 29, and that the “terms and conditions to be provided post-termination of the Agreements are an efficacious means of protecting the interests of employees”.30
4.2 The UFU submissions in opposition
[26] In contrast to the MFB’s submissions, the UFU opposes the Enterprise Agreement Termination Application and submits the MFB’s employees do the same. It also disputes the grounds advanced by the MFB in its application and disputes that the provisions of the existing agreements interfere with or impede the operations of the MFB in any significant way. In addition, it disputes that the provisions impugned by reference to the constitutional limitation provide a proper basis for any application under s.226. 31
[27] In relation to the statutory tests for termination of an agreement, the UFU submits a distinction is to be drawn between the current legislation and the former, set out in s.170MH of the WR Act. In particular;
“…the terms of s.226 effect a broadening of the previous test and impose a more onerous threshold for termination. It does that by imposing a condition in addition to the public interest, that the termination be “appropriate” in all the circumstances including the views of the persons covered by the agreement, their circumstances and the likely effect that the termination would have on them.” 32
[28] The UFU further argue that the “‘appropriate in all the circumstances’ criterion goes beyond considerations of public interest and poses a higher threshold for allowing a termination”. 33 In support of this proposition, the UFU refers to the matter of Parnall Pty Ltd [2012] FWA 8291 at [12]-[13] citing Royal Automotive Club of Victoria [2010] FWA 3483.
[29] In addressing the MFB’s argument that the 2010 Agreements contain problematic content, the UFU submitted that the firefighters employed by the MFB provide an essential emergency service in the Melbourne District as defined by s. 4(1) of the MFB Act, arguing;
“... This is no ordinary work. It requires these employees to do inherently dangerous work in carrying out the functions of fire suppression and prevention as well as emergency response, as stipulated by s. 7(1) and s. 7AA(1) of the Melbourne Fire Brigades Act 1958. They are frequently put in life-threatening situations in the performance of their work. There is accordingly a strong public interest in ensuring fair terms and conditions that reflect and support the nature of this unique employment. The Agreements do this and as such are consistent with the requirements of s. 8 of the Public Administration Act 2004 which applies to the MFB. By that section of that Act, the Chief Executive Officer of the MFB (as the relevant Public sector body Head) is obliged to “establish employment processes that will ensure that:
(a) employment decisions are based on merit;
(b) public sector employees (firefighters in this case) are treated fairly and reasonably;
(d) public sector employees have reasonable avenues of redress against unfair or unreasonable treatment.
(Underlining added)
The termination of the Agreements would cast most firefighters back to the inferior minimum award conditions contained in the Fire Fighting Industry Award 2010 (the Modern Award) and this is inconsistent with s. 8. The position is worse for firefighters who hold the rank of Commander and Assistant Chief Fire Officers. They would not be covered by the Modern Award.” 34 (original emphasis)
[30] In relation to the submission regarding Commanders and Assistant Chief Fire Officers, the UFU submits that “Schedule B of the Modern Award contains classifications by rank. The highest classification or rank covered is Fire Service Communication Controller.” 35
[31] Rather than the termination of the 2010 Agreements having the effect of improving the MFB’s productivity or performance of its statutory functions, the UFU contends the opposite, suggesting that “termination will undermine the ability of the MFB to effectively perform the functions stipulated by s. 7 and s. 7AA of the Melbourne Fire Brigades Act 1958” 36; and that “a foreseeable consequence of the removal of the consultation provisions in consequence of termination, is impaired organisation performance”.37
[32] The UFU further argued that the consultation clauses considered problematic by the MFB do not provide a proper public interest basis for termination (citing Mt Thorley at [42], item 4 and [44]), and further that;
“The impugned Re AEU clauses do also not provide a proper basis for termination, because they are of no legal effect, and there are other less drastic avenues available to MFB to deal with them”. 38
[33] In relation to the MFB’s proposition in relation to the conduct of bargaining that there is “no realistic prospect of reaching a replacement agreement”, the UFU submits that bargaining for the replacement agreement is not intractable and that evidence given by Casey Lee, the UFU Industrial Officer Manager, shows;
“... that in bargaining since February 2014 the MFB has refused to bargain about anything that is not one of what it terms “threshold” issues, being, consultation, dispute resolution and classifications. It has also refused to bargain at all about any aspect of the subject matter contained in clauses that it contends fall foul of the implied limitation stated in Re AEU or which it characterises as unlawful under the FW Act.” 39
[34] The UFU submits that bargaining meetings have not stopped and that the practical effect of the MFB bargaining strategy is;
“... to seek concessions from the UFU before it will agree to bargain over other things. Good faith bargaining does not require any party to make concessions and cannot accordingly sustain a conclusion that bargaining is exhausted if the UFU does not relent. However, the erection by the MFB of self-imposed barriers to bargaining does not support a conclusion that the ‘MFB has tried unsuccessfully to progress the negotiations’.
Indeed, its behaviour raises questions about the true reason for this application and whether the application is in truth an attempt to achieve its desired bargaining outcome without going through the prescribed bargaining processes and without having to make any bargaining concessions.” 40
[35] The UFU rejects the submission that its approach to bargaining has been dilatory, or that there is no incentive for it to bargain due to the 2010 Agreements’ impugned clauses 41 and it submits the Commission should not lightly approach a conclusion that bargaining is exhausted. It argues that it would be premature for an invitation to the Commission to conclude that bargaining is exhausted as a ground for termination of the 2010 Agreements.42 The union puts forward that;
“... hard bargaining is not a sufficient basis to conclude that a party is not trying to reach agreement, and difficulty with reaching agreement is not to be confused with inability to do so. A Full Bench has recently held that the scheme of the FW Act not only encourages parties to make agreements but imposes an obligation on them to try to do so. The observation of Boulton J in Mount Thorley applies here 43:
‘It is unrealistic to consider that negotiations could have been concluded with respect to all issues given the significance of the matters under discussion and the uncertainties about the future plans for the Mine and in the absence of proposals regarding pay’” 44
[36] In relation to the need for the Commission to consider whether it is “appropriate in all the circumstances” for the 2010 Agreements to be terminated, the UFU notes the findings made on the subject by Vice President Lawler in Re Tahmoor Coal Pty Ltd 45, and in particular that;
“While there is a history of provisions empowering the AIRC to terminate statutory collective agreements, prior to the enactment of s 226 of the FW Act the focus on when that power should be exercised has been on “the public interest”. Section 226 of the FW Act is the first time that this power has been made subject to a criterion of “appropriateness”. The inclusion of that criterion is of particular significance and means that some of the earlier authorities are of limited assistance in determining whether the termination of an expired agreement is ‘appropriate’.” 46 (reference omitted)
[37] In relation to the Commission’s consideration of the views of employees, the UFU notes it is to the only union covered by the 2010 Agreements the MFB seeks to terminate, and that the “position of the industrial representatives of employees, in this case the UFU, is good evidence of the views of employees” 47. Additionally, the UFU reports that over 96% of respondents to a union sponsored survey strongly disagreed with the proposal to terminate the agreements, and more than 98% strongly disagreed with the proposition to reduce their terms and conditions to the award minimum with an undertaking from the MFB.48 The union submits that the combination of these factors, together with the evidence led from firefighters “compels the conclusion that the UFU and an overwhelming number of Victorian firefighters who enjoy the benefit of the agreements oppose termination”.49
[38] The UFU separately addresses the criterion set out in s.226(b)(ii), which requires the Commission take into account the circumstances of the employees, employers and organisations covered by the agreements, including the likely effect that the termination will have on each of them. It argues that the Modern Award will not cover Commanders and Assistant Chief Fire Officers, and that the MFB’s proposal to provide all employees with terms and conditions of employment “that are generally consistent with the terms of Agreements”, other than identified parts, “is totally unacceptable and should not be accepted by the Commission”. 50 The union argues that the undertakings as given are not enforceable commitments; that termination of the 2010 Agreements will significantly change the bargaining position of the parties by enhancing the MFB’s position and will diminish employees. Citing the proposition set out in Re Tahmoor Coal Pty Ltd51, the union submits in this regard;
“It is generally inappropriate for the Commission to interfere in the bargaining process so as to substantially alter the status quo in relation to the balance of bargaining power between the parties and thereby deliver to one effectively all that it seeks from the bargaining.” 52
[39] The UFU also notes that an effect of the termination of the 2010 Agreements would be that employees would lose the benefit of consultation clauses that have been in place for many years and in successive enterprise agreements. Such clauses;
“... were part of a total negotiated “package” in which concessions were made by both sides, so that “consideration” for the clauses passed from the employees to the MFB. Furthermore the package represents the resolution of industrial issues that have taken many years of negotiation to resolve. An example is minimum crewing” 53. (citation omitted)
[40] The union submits also that it is highly relevant for the Commission to have regard to the history of the clauses in previous agreements made by the MFB with its employees and the UFU, with the union submitting that the evidence is that the MFB consistently agreed to the consultation and dispute resolution provisions and that it “did so again in 2010 in enthusiastic terms” 54. Further;
“The Commission should take into account and give great weight to the fact that the consultation clauses about which the MFB now complains, have been repeatedly agreed to by it in successive enterprise agreements. That history of agreement cannot be reconciled with the submission in paragraph [19] of the Outline that the impugned provisions are “overly onerous and have proved for the most part to be unworkable”.
Further, in relation to the Re AEU clauses, the MFB entered into a common law Deed in conjunction with the Agreements, and in that Deed it agreed that it would abide by those clauses as incorporated terms of the Deed if it transpired that they were beyond the power of the Commission to include in an enterprise agreement.” 55
[41] In relation to the substance of the consultation and dispute resolution clauses, the UFU submits the clauses;
“... do not operate to curtail the ability of the MFB to “initiate any change”. That capacity is unaffected. The clauses do curtail the ability of the MFB to implement change unilaterally in the exercise of an outmoded conception of absolute management prerogative. That was recognised by the Full Court in QR Rail v CEPU (2010) 204 IR 142; per Keane CJ and Marshall J at [13]-[14]” 56
[42] While conceding that clause 13 of the 2010 Agreements intrudes significantly into the area of management prerogative, as did the clause before the Full Court in QR Rail v CEPU, “that does not mean it is inherently suspect or ‘problematic’”. 57 The provisions have functioned as intended; are to be read against the objectives of the respective agreements, which include firefighter safety and security of employment; and there is good reason why the clauses are in the form they are;
“In the MFB there is good reason why in the public interest and in the interests of firefighters the intrusion into management prerogative should be as envisaged by the consultation and dispute resolution clauses of the agreements – the work is dangerous and the lives of firefighters may be put in jeopardy at any time. In such circumstances it is entirely legitimate that they have a substantial say about the way in which, and the equipment with which, their work is to be carried out. To disallow such an involvement will have a very important effect on the confidence with which firefighters enter upon their firefighting tasks. Insofar as the MFB now desires greater freedom of management action than available now under the agreements, its remedy is bargaining.” 58
[43] The UFU rejects that it has improperly used the rights granted in the 2010 Agreements, saying that “[c]onsensus is what it says; the MFB’s rights under the clauses are co-extensive with those of the employees”; and that “it is incorrect to suggest that the consultation process is all one way with the MFB proposing and the UFU answering what is proposed” 59. The union points to the benefits of consensus-based consultation. On the one hand there are “numerous examples of the MFB proposing or seeking to introduce the use of equipment which was exposed as unsafe in the consultation phase and thereafter rectified”; and on the other, the current provisions and processes promote “confidence amongst firefighters that an idea or new equipment won’t be commissioned before rigorous discussion and testing has occurred through a mechanism that has their interests in an appropriately prominent position”.60
[44] The union submits that in the event that the 2010 Agreements are terminated, consultation provisions for firefighters, with the exception of Commanders and Assistant Chief Fire Officers, will revert to the provisions of the Modern Award, which provisions are not utilised by any Australian fire service. 61
[45] In respect of the MFB’s submission that certain clauses of the 2010 Agreements offend the Re AEU implied constitutional limitation, the UFU submitted;
“The basis upon which it is said that the presence of the clauses justifies termination is that “there is considerable uncertainty as to the validity of these provisions”. That contention ought to be rejected. In the event of ambiguity or uncertainty a construction that would make a clause valid is to be preferred over one that would make it void. 62 However, the Commission does not need to embark on that task here.
If a term of the agreements is as a matter of law beyond power the offending clause or part thereof is void and of no effect; termination of the agreement is not required to bring about that result. If there is any uncertainty about the Constitutional validity of any clauses it can be conclusively resolved by a targeted application to the Court rather than the “scorched earth” approach of a termination application where the Commission is asked to terminate the valid clauses as well.
Indeed the failure of MFB to resolve its claimed uncertainty about the Re AEU clauses previously during the life of the Agreements raises strong inferences about MFB’s real purpose in bringing this application.
The MFB has at all times had the means available to raise the question it poses (this is discussed further in the next paragraph below). In contrast, the Commission is not required to confront the issue of validity directly in these proceedings, nor is it necessary that it do so. In this respect, the Commission in an application under s. 225 stands in a very different position to the Commission in Parks Victoria v the AWU[2013] FWCFB 950. There the question, on one aspect of the case, was whether the State of Victoria had referred power to the Commonwealth pursuant to the Fair Work (Commonwealth Powers) Act 2009 (Vic) that would support a law that required inclusion of particular agreed terms into a workplace determination. That doesn’t arise here. The Commission isn’t asked to exercise a power it doesn’t have. The only power it does have is to overturn the whole instrument, including content untouched by the implied limitation.
The FW Act by s. 561 invests the Federal Court with jurisdiction with respect to matters arising under the Act. The validity of a clause of an agreement made under the Act is clearly a matter arising under the FW Act. It is clearly open to the MFB to apply to the Court for a declaration of invalidity of any of the impugned clauses, without affecting the operation of any other uncontroversial term of the Agreements.
In contrast, at best the Commission can only offer an opinion that the impugned clauses may (or may not be) unenforceable due to the implied limitation. That opinion cannot supply a sound basis to terminate the Agreements in total. If the MFB is right, the impugned clauses are of no effect now and their invalidity would provide a complete defence against any attempt to enforce them against the MFB.” 63
[46] The UFU also submits that;
“Another relevant consideration in relation to the Re AEU clauses is that MFB entered into the Agreements well aware of the potential invalidity of these clauses. In recognition of that potential problem and in order to overcome it if it arose, The MFB entered into a Deed with UFU whereby it was agreed that if any clause of the Agreements was found to be invalid at law, it would be treated as incorporated into the Deed and enforced as such.
The present use of the Re AEU clauses is inconsistent with the MFB’s undertakings in the Deed, and provide a further reason why this ground is an inappropriate basis for termination.” 64
[47] In answer to the MFB submission that much of the content of the 2010 Agreements is “ill-suited” to a modern fire service 65 and the agency’s statutory charter, the UFU argues the submission is disingenuous, with the primary imperative of a modern fire service being the safety of employees and the public. Because employees have “an intimate and immediate interest” in such an imperative, “clauses that facilitate their role are important not superfluous”.66
[48] The MFB submissions referred to the statutory and common law duties it owed to employees, others and the public, arguing that;
“The MFB is under a series of statutory duties to protect the health, safety and welfare of its employees, of persons whose health or safety may be impacted by the conduct of its undertaking, and the general public – see especially the Occupational Health and Safety Act 2004 (Vic) and the Metropolitan Fire Brigades Act 1958 (Vic). The MFB also owes a common law duty of care to its employees and to other persons who may be affected by its activities.
Termination of the Agreements would not in any way relieve the MFB of these responsibilities or impair its capacity to discharge them. Indeed, removal of some of the existing impediments in the Agreements would positively enhance the capacity of the MFB in the area of health and safety.” 67
[49] In its submissions on this particular subject, the UFU put forward a contrary view;
“This submissions [of the MFB, above] again creates a false impression about the role of the firefighters,
Under s.25(1)(a) and (b) of the Occupational Health and Safety Act 2004 (Vic) the firefighter have a separate and independent duty of care for their own health and safety at work, as well as for the health and safety of persons who may be affected by their actions at work.
Contravention of this statutory duty is an indictable offence.
This duty provides a powerful basis for the firefighters to be concerned about the terms and conditions under which they are required to carry out their duties and a complete answer to the MFB’s submission.” 68
[50] The MFB put forward in relation to its application not that the continuation of the 2010 Agreements is contrary to the public interest, but that termination of the 2010 Agreements is not contrary to the public interest. 69 It submits that the correct application of s.226 shows that the Commission does not have to be satisfied the termination is in the public interest; further the correct application of the section means that the matter raised by the termination of the 2010 Agreements but with no connection to the public interest is not a consideration in the Commission’s formation of a view about termination being contrary to the public interest.70
[51] The MFB’s submissions relating to s.226(a) (contrariness to the public interest) take into account the matters considered by the Commission in earlier matters; Re Mount Thorley; Kellogg Brown & Root Pty Ltd v Esso Australia Pty Ltd 71 (KBR); Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union72(ERA v LHMU). While the MFB notes that the Commission should be cautious in respect of “checklists which mix up components of private interests and ‘the public interest’”,73 it distils from the authorities six considerations which it then addresses in some detail in its submissions. The considerations it identifies are the following74;
(a) effect on parties to the agreement;
(b) the statutory scheme for the making and observance of agreements;
(c) conduct and progress in bargaining;
(d) the need to ensure the efficient and viable operation of the enterprise;
(e) the problems relating to the continued operation of the agreement;
(f) provisions of the agreement dealing with its renewal and/or termination.
4.3 Consideration of the application in respect of the 2010 Agreements separately
[52] As already referred to, the Enterprise Agreement Termination Application made by the MFB is in respect of two separate agreements.
[53] A feature of the way the matter has progressed is that the parties have presented evidence and submissions that does not especially distinguish between the two agreements, and if they have referred to a particular agreement, it has most frequently been to the 2010 Operational Staff Agreement. I am mindful however, that my task includes consideration of whether either or both of the 2010 Agreements should be terminated.
[54] I have considered all evidence and submissions as being in respect of each agreement, except where the context requires that it be a consideration in respect of one agreement alone.
5. BACKGROUND TO THE AGREEMENTS
5.1 1999 Agreement
[55] The Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 1999 75 commenced on 9 June 1999, with the agreement expressed to cover the occupations specified in the Victorian Firefighting Industry Employees Interim Award 1993 and the Firefighting Services -Wages- Firefighters and Firefighting Officers - Victoria - Award 1996.76
[56] In the 1999 Agreement, clause 9.1 deals with consultation, which is defined to mean “the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision”.
[57] Clause 9.2 establishes an Enterprise Bargaining Implementation Committee (EBIC) “to facilitate the implementation of this Agreement and ongoing workplace reform”, setting the objective that EBIC’s “decision making will be by consensus” 77, with a further obligation about what should be referred to EBIC, and the endorsement of proposals by parties outside of EBIC;
“The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No proposals for change arising from this Agreement shall be implemented without referral to the Enterprise Bargaining Implementation Committee.” 78
[58] Clause 9.3 regulates the operation of consultative committees established under the 1999 Agreement, with subclause 9.3.4 providing;
“All committees established under this agreement are recommendatory in nature and will operate on the basis of consensus when developing recommendations.”
[59] Clause 11 of the 1999 Agreement deals with the introduction of change, providing that;
“INTRODUCTION OF CHANGE
Where the employer has a proposal to introduce or implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement, the provisions of subclauses 9.2 and 9.3 will apply.”
[60] The reference in the above clause to subclauses 9.2 and 9.3 is a reference to the formation and processes for operation of the EBIC and consultative committees, and save for the provision in subclause 9.2.5 that proposals for change require submission to the EBIC, clauses do not appreciably add to the definition of “change”.
[61] The Dispute Resolution procedure is set out in Clause 12, and provides a five step process “to achieve a satisfactory resolution of any dispute or grievance”. 79 The fifth and final step of the procedure allows matters to be referred to the Australian Industrial Relations Commission for conciliation and determination. The procedure also refers in the following way to the “status quo” applying to matters that are the subject of the procedure while the procedure is followed;
“12.8 While the above procedures are being followed, the status quo shall be maintained until the matter is resolved. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.”
[62] The 1999 Agreement made the following provisions with respect to the supply and replacement, etc of uniforms and equipment;
“30. UNIFORMS AND EQUIPMENT
30.1 The employer shall supply each employee and be responsible for the cost of replacing, repairing and/or cleaning the articles of clothing and/or equipment that the Union and the employer agree must be worn and/or used by the employee.
30.2 The replacement, repairs and/or cleaning of the articles of clothing and equipment will occur when reasonably required by each employee and/or when the uniform or equipment becomes so soiled or damaged that it requires cleaning, repair or replacement.
30.3 Employees are responsible for cleaning their own shirts, T-shirts and socks.”
[63] The 1999 Agreement uses the word “consensus” in the context referred to above, namely the requirement in cl.9.3.4 for committees to “operate on the basis of consensus when developing recommendations”. The word “agreement” is used mostly, but not exclusively, as a noun referring to the industrial instrument itself. An important exception is the requirement that employees cannot be required to be transfer between stations above a particular threshold unless there is agreement 80; and a further exception is contained within subclause 9.2.7, which provides with respect to EBIC that;
“The committee may, by agreement, alter its size and/or composition or establish working parties to research and make recommendations on specific issues.”
[64] “Agreement” in the sense of a contingent event is also used within in the Dispute Resolution clause, but in the limited context of disputes arising under clauses 18 (Zone Management) and 26 (Attendance Management);
“12.10 Both parties recognise that due to the nature of Clauses 18 and 26 that any implementation must be by agreement and shall not be subject to determination by the Commission under sub Clause 12.7.”
[65] Clause 18 required that implementation of the revised management structure would be subject to agreement by each of the parties.
[66] The word “agree” is used within the 1999 Agreement in two principal contexts;
● as a statement of what has already been agreed between the parties, such as by providing “[t]he Parties agree that the existing rank and promotional structures are appropriate and will be maintained for the life of this agreement;” 81 or
● as a statement of intent about something the parties may or will do during the term of the 1999 Agreement, such as by providing that “[t]he parties will investigate the formation of an appropriate schedule of terms and conditions for employees who agree to form part of an MFESB response to emergencies outside the Metropolitan Fire and Emergency Services Board district.” 82
5.2 2002 Agreement
[67] The 1999 Agreement was replaced by another instrument certified in 2002, which commenced operation on 28 November 2002. 83 The 2002 Agreement had an updated coverage provision, with the coverage clause amended to refer to persons engaged in an occupation specified in the Victorian Firefighting Industry Employees Interim Award 2000, or in the agreement itself.84 The 2002 Agreement provides also, in respect of its operation, “[t]his agreement shall remain in force until replaced by a new agreement”.85
[68] The 2002 Agreement contains an important variation to the clause dealing with consultation and the introduction of change. Whereas the 1999 Agreement provides that “a proposal to introduce or implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement” 86 requires consultation, the 2002 Agreement provides that a proposal to introduce or implement any change as defined in clause 9.1 will require consultation, which clause provides the following;
“9.1 Definitions
Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision.
Change
Change includes, but is not limited to, any change that will have an impact on employees regarding work practices or location, job security, remuneration, training or new technology or equipment or in matters pertaining to the employment relationship or in the way work is or would be carried out by an employee in any of the classifications of this agreement or any claim in relation to a matter contained in Appendix B.”
[69] Importantly the clause in the 2002 Agreement expanded the scope of matters requiring consultation from those proposals which could be expected to bring about “significant change” to being an event which includes, but presumably is not limited to, “any change that will have an impact on employees”. In addition to this change of substance between the 1999 and 2002 Agreements, the matters required to be referred to EBIC had also expanded, at least on the face of the clause. The original clause required that “no proposals for change arising from this agreement shall be implemented without referral to the Enterprise Bargaining Implementation Committee”, whereas the 2002 Agreement provided;
“9.2.5 The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No change or proposals for change arising from or relating to matters dealt with in this Agreement or in matters pertaining to the employment relationship or in the way work is carried out shall be implemented without referral to, the Enterprise Bargaining Implementation Committee.” (emphasis added)
[70] Of course, it may be that in the context of the clause itself, an alteration from the original wording of “no proposals” to “no change or proposals” may not be significant.
[71] The 2002 Agreement also contains a dispute resolution procedure, also set out within clause 12 of the agreement. However the contents of the procedure differ in important respects from the 1999 Agreement. In particular the clause provides different rights in respect of the external body to whom a dispute may be referred if not settled at Step 5 (broadly, an unresolved dispute may be referred to an “agreed arbitrator” and in the absence of agreement the Australian Industrial Relations Commission). In addition the clause does not employ the term “status quo” and instead prescribes the following in respect of maintaining existing work practices;
“12.9 While the above procedures are being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.”
[72] The provision and replacement, etc, of uniforms and equipment is dealt with in clause 29 in the same way as in the 1999 Agreement.
[73] Within the 2002 Agreement, “consensus’ is used more broadly than in the 1999 Agreement. In addition to the occasions in the 1999 Agreement requiring consensus, the 2002 Agreement required consensus decision making in meetings of Designated Work Groups established for the purposes of an incorporated Occupational Health & Safety Policy and Processes Agreement and in the Health and Safety Policy Committee wherein it was provided that;
“All members of the committee will have one vote. The chairperson will have an ordinary vote but no casting vote. It is intended that decisions will be by a consensus vote. ...” 87
[74] As with its predecessor, the 2002 Agreement uses the word “agreement” mostly, but not exclusively, as a noun referring to the industrial instrument itself. As an example of the exceptional use of the word “agreement”;
● Cl.23 contains such an exception when it provides “HR policy that is dealt with elsewhere in the agreement may only be varied by agreement.”
● Cl. 38.3 provides that agreement of the UFU is required for a certain forms of “contracting out” arrangements;
● Schedule 2, Cl 4.7 provides that the terms of reference for an OHS Consultative Committee may be varied by agreement of the parties.
[75] The 2002 Agreement maintains the 1999 Agreement’s two uses of the word “agree”, with it usually being expressed in phrases such as “the parties agree”. The 2002 Agreement also maintains the role of EBIC; what must be referred to EBIC before implementation; and an entitlement of parties to seek the endorsement of their constituents in relation to proposals for change.
5.3 2005 Agreement
[76] The 2005 Agreement replaced the 2002 Agreement and came into force on 19 April 2006. 88 As with its predecessor, the 2005 Agreement provides that “[t]his agreement shall remain in force until replaced by a new agreement”.89 The scope of the 2005 Agreement is expressed to cover all employees of the MFB engaged in a classification or occupation referred to in the agreement or what is referred to as the “scheduled Award”, being those terms of “the VFIEI Award as at 23 September 2005” which have been incorporated into the agreement as a schedule.90 Schedule 1 of the 2005 Agreement provides wages under the agreement for classifications between the levels of “recruit” and “commander” and Schedule 8 sets out the “scheduled award”, with clause 9 of the schedule setting out “classifications and wage rates” for classifications between “recruit” and “senior station officer”. There is no apparent provision for Assistant Chief Fire Officers.
[77] The 2005 Agreement maintains the earlier definitions of “consultation” and change, and continues the scope of matters that must be referred to EBIC. 91 Although the dispute resolution clause continues the requirements in respect of continuation of work in accordance with the existing situation or practice, and does not employ the term “status quo”92, it also provides a particular procedure for dealing with “OSG disputes”. While the 2005 Agreement does not provide a definition of OSG, the evidence in this matter has taken the Commission to the work of the Operational Support Group, “comprised of employees of the MFB who are not fully fit for firefighting duties”93.
[78] The 2005 Agreement provides the same arrangements as the earlier agreement for the provision and replacement, etc, of uniforms and equipment (see clause 31).
[79] The use of the word “consensus” in the 2005 Agreement remained confined. Decision making in EBIC and Designated Work Groups was to continue to be by consensus. 94 There remained an intention that the Health and Safety Policy Committee decision making would be by a consensus vote and the Operational Employees OH&S Committee would continue to arrive at solution and recommendations by consensus.95
[80] The words “agreement” and “agree” are used in the 2005 Agreement in a similar manner and similar extent to the use of those words in the 2002 Agreement.
5.4 2010 Agreements
[81] The 2010 Operational Staff Agreement, which is one of the agreements that is the subject of these proceedings was approved by Fair Work Australia to operate from 30 September 2010. 96 In a manner similar to its 2002 and 2005 predecessors, the 2010 Operational Staff Agreement provides that “[t]he parties agree that this agreement shall remain in force until replaced by a new agreement.”97 The scope of the agreement is expressed to cover all employees of the MFB engaged in a classification or occupation referred to in the agreement or in Victorian Firefighting Industry Employees Interim Award 2000 “and any successor to that award”.98
[82] The 2010ACFO Agreement was approved by Commissioner Roe on 23 September 2010 and was also to operate from 30 September 2010. Upon approval the Commissioner noted the agreement came about, at least partly, because;
“[4] There was a scope order issued in relation to this agreement in “United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board and United Firefighters’ Union of Australia [2010] FWAFB 3009” which ordered that: “the proposed agreement covers operational employees from the rank of “Assistant Chief Fire Officer”.” 99
[83] The 2010 ACFO Agreement appears to be the first time that Assistant Chief Fire Officers were covered by a formal workplace instrument, although in the absence of direct evidence or submissions on the matter, I make no reliance on that proposition.
[84] The 2010 Operational Staff Agreement maintains the definition of consultation being “the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision”. 100 Unlike the earlier 2002 and 2005 agreements, the 2010 Operational Staff Agreement does not explicitly gives a definition of change, although it does require consultation in accordance with a prescribed process where “the employer wishes to implement change in matters pertaining to employment relationship”.101
[85] In the 2010 Operational Staff Agreement, the processes formally referred to as EBIC have been redefined as the MFB/UFU Consultative Committee (which is also the consultative body dealing with consultation under the 2010 ACFO Agreement 102). In the dispute resolution clause, the broad 5 Step process for resolution of disputes has been maintained, however the reference to the application of the “status quo” has been reinserted as follows;
“While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.” 103
[86] In the 2010 Operational Staff Agreement, the provisions relating to uniforms and equipment underwent substantial change. The clause no longer relates only to the supply of uniforms and equipment together with requirement of employees to wear them, and the obligation of the employer to replace when required. Instead, a much broader provision applies as follows;
“88. UNIFORMS AND EQUIPMENT
88.1. The MFESB and UFU must agree on all aspects of the:
88.1.1. articles of clothing;
88.1.2. equipment, including personal protective equipment;
88.1.3. station wear; and
88.1.4. appliances;
to be used or worn by employees. ‘All aspects’ includes, without limitation, design and specifications. This applies to new and replacement items.
88.2. The employer shall supply each employee and be responsible for the cost of replacing, repairing and / or cleaning the articles of clothing and / or equipment that must be worn and / or used by the employee.
88.3. The replacement, repairs and / or cleaning of the articles of clothing and equipment will occur when reasonably required by each employee and / or when the uniform or equipment becomes so soiled or damaged that it requires cleaning, repair or replacement.
88.4. A plan of distribution of replacement items will be finalised within the life of the agreement.
88.5. Further to the above, the MFESB will provide any employee who so requires them prescription eye protection/safety glasses.
88.6. Further to the above, the MFESB will develop a rehabilitation solution for personnel to deal with the anticipated thermal stress of new PPC and changing work environment. Any such solution should be considered in the context of Clause 35, Special Ops.”
6. THE HEARING
6.1 The scope of witness evidence and submissions
[87] The MFB brought forward 15 witnesses, each of whom presented witness statements and were cross-examined;
1. Peter Rau – Chief Officer; 104
2. Andrew Zammit - Acting Deputy Chief Officer; 105
3. Margaret Wilson - Manager – Business Assurance; 106
4. David Youseff - Deputy Chief Officer and Regional Director, North West Metro Region; 107
5. Craig Lloyd - Executive Director of Property and Assets; 108
6. Paul Stacchino - Deputy Chief Officer; 109
7. Adam Dalrymple - Acting Deputy Chief Officer and Acting Executive Director of Emergency Management; 110
8. David Bruce - Acting Deputy Chief Officer; 111
9. Andrew O’Connell - Commander; 112
10. Darren McQuade - Commander, Regional Operations Coordination; 113
11. Janette Pearce - Senior Consultant, Workplace Relations; 114
12. Darren Davies - Assistant Chief Fire Officer and Director of Regional Operations in North West Metro Region; 115
13. John Jugum - Commander; 116
14. Michael Werle - Director, Human Resources; 117
15. Gregory Pearson - Acting Assistant Chief Fire Officer and Acting Executive Manager Property Services. 118
[88] On its behalf, the UFU brought forward witness statements from 71 professional firefighters, two union industrial officers and two professional advisers, of whom the following 22 were called to give oral evidence, with each being required for cross examination;
1. Michael Walker - Assistant Chief Fire Officer; 119
2. Ken Brown - Assistant Chief Fire Officer, and UFU Junior Vice President and a member of the UFU Branch Committee of Management (BCOM); 120
3. Michael Tisbury - Senior Station Officer, and member of BCOM; 121
4. David Hamilton - Senior Station Officer and UFU President and member of BCOM; 122
5. Brendan Angwin - Commander, and member of BCOM; 123
6. Danny Ward - Leading Firefighter, and member of BCOM; 124
7. Christopher Cleary - Leading Firefighter, Preston, and member of BCOM; 125
8. Robert Psaila - Leading Firefighter, and member of BCOM; 126
9. Casey Lee - Industrial Officer Manager; 127
10. Rini Krouskos - Industrial Officer; 128
11. Paul Riley - Assistant Chief Fire Officer; 129
12. Alan Quinton - Assistant Chief Fire Officer, Preston; 130
13. Christopher Watt - Assistant Chief Fire Officer, Burnley; 131
14. Gregory Bawden - Assistant Chief Fire Officer/Director of Fire Safety, Burnley; 132
15. Mark Carter - Commander, Burnley; 133
16. Mark Lyons - Commander, Sunshine; 134
17. Edward Brizzio - Commander, Burnley; 135
18. Daniel Gatt - Commander, Fitzroy North; 136
19. Bradley Quinn - Commander, Eastern Hill; 137
20. William Weir - Commander, Sunshine; 138
21. Ross Trimboli - Commander, Eastern Hill; 139
22. Phillip Taylor - Commander, Sunshine. 140
[89] In addition to having had the benefit of observing the evidence of the above 37 people, I take into account the witness statements of the remaining 51 operational firefighters and two professional advisers (Professor Ian Gordon, Director, Statistical Consulting Centre, University of Melbourne 141 and Dr Francesca Litow, Adjunct Associate Professor of Environmental Health Sciences at the Johns Hopkins Bloomberg School of Public Health, Baltimore, USA142).
6.2 Disputes featuring in evidence and submissions
[90] Evidence was brought forward about numerous instances of either consultation about proposed or implemented change, or disputes about initiatives progressed through various stages of the dispute resolution procedure. The MFB summarised in its closing submissions the topics on which evidence was called, listing 28 such matters 143. Other matters were the also subject of detailed evidence about consultation or change implementation, sometimes with the matter first introduced into the evidential contest by the MFB and on other occasions by the UFU. For example, evidence was given about issues that arose over the years with several property locations; the MFB’s marine fire response capability, the introduction of a digital radio communications system; restrictions on the employment of new recruits into classifications reflecting their experience elsewhere, instead of having to start again (“lateral entry”). Some of the matters are plainly “disputes” within the meaning of the 2010 Agreements, whereas others are not, or it is disputed that they rise to that level. For the purposes of convenience, the matters on which evidence was received or submissions given and which are discussed in this decision, are collectively referred to as the “illustrative matters”.
[91] Examination of the evidence presented about these matters leads me to group these disputes in four ways for the sake of convenience; some of the disputes were about routine managerial or public sector decision making; some related to decisions sought by the MFB in relation to its property holdings; a third group went to operational fire fighting issues within the MFB; and a fourth group appeared to be about the capability of the MFB to work with other emergency services agencies (or “interoperability”).
Routine managerial or public sector decision making
[92] The illustrative matters about which evidence was given that related to routine managerial or public sector decision making included;
● endeavours originally commenced in 2011 to introduce MFBSafe 144, which is software used for recording health and safety exposures, incidents and injuries, the consultation for which the MFB argues took several years to conclude and only being finalised in early 2014;
● the attempted introduction from 2011 of a Workplace Behaviour Training Program 145 that would provide employees with training on workplace respect issues including discrimination, harassment and bullying, and which has not yet been implemented;
● a dispute originating in 2012 over the introduction of limits on personal internet use 146 and which was the subject of arbitration in 2013 by Commissioner Roe147;
● a 2012 dispute regarding migration of the MFB’s computer operating system to Windows 7 148 with the MFB eventually implementing the system “one year after consultation had originally commenced”149;
● the proposed introduction in 2012 of Workplace Policies and Guidelines, being “a suite of policies and guidance notes in relation to human resources matters such as sick leave, annual leave, payroll processing, higher duties and employee transfers (Polices and Guidance Notes) to address a lack of adequate equivalent documents”. 150 For the reason that consultation is unresolved, the policies and guidelines have not been introduced;
● the 2014 consultation over introduction of the Greener Government Buildings program 151, aimed at assisting departments and agencies to reduce energy use, water use and greenhouse gas emissions through provision of a Government cost neutral loan to organisations to fund assessments on environmental impact152; consultation over introduction of the initiative is incomplete, with the UFU arguing that the anticipated costs savings are relevant to productivity153.
Property holdings
[93] The illustrative matters about which evidence was given that related to decisions sought by the MFB in relation to its property holdings included an issue regarding relocation of the Northcote fire station 154; and the proposed refurbishment of the Eastern Hill Fire Station155. Both matters arose during the term of the 2010 Agreements, and since agreement could not be reached about resolution of the subject matter, neither project has progressed.
Operational MFB fire fighting issues
[94] The illustrative matters about which evidence was given that related to operational fire fighting issues within the MFB included the following;
● There has been a long running dispute, since about 2006, regarding the number of appliance to attend bin fires in the Melbourne CBD 156, with the MFB contending that it is the only fire service in Australia to send two appliances to every bin fire157;
● Extensive evidence was given about the introduction by the MFB of new Personal Protective Clothing (PPC) and a 2007-2008 inquiry conducted for the Victorian Government by Judge Lewis, of the County Court, (the Lewis Report) 158, which was critical of the UFU about the tendering process for the new PPC;
● Consultation from March 2009 over new breathing apparatus and HAZMAT appliances that took longer than desirable resulting in the appliances not being completed until February 2013 159; with the UFU attributing delay to a failure of the responsible manager to initiate consultation;160
● In 2009, the MFB wanted to change the model of Chinagraph Pencils 161 it used; such pencils are capable of writing on a variety of hard surfaces, including metal, glass and plastic, such as a Breathing Apparatus entry board162, or the roll board of an appliance163; in order to change the pencils, “the MFB had to obtain the agreement of the UFU through the Vehicle and Equipment Committee under ... 2005 Agreement”164, about which the UFU argues;
“There was a proposal to change the type of pencil, there was a discussion about it and the proposal was endorsed. There was no delay, or impediment.
It is a non-issue.” 165
● In 2009, the MFB commenced a Teleboom Replacement Project 166, and settled on an appliance used in New Zealand, called the “Telesquirt” or “Bronto” and an order for the appliance was made in 2011. Shortly after the placement of an order a grievance was raised in 2011 by the UFU about sufficiency of consultation; since that time, the appliance has been delivered and has been “idle”167, and in early 2014, “[n]o MFB firefighters were trained to operate the Telesquirt because UFU agreement as required under the consultation provisions had not been obtained to commission it”.168 The UFU argues about this matter “that the consultative process is being used to try and satisfy the grievance raised by the UFU about the deficiencies identified with the appliance. It was legitimate for the UFU to raise concerns that it had about the safety of the appliance, which is to be operated by its members”169;
● In 2010 the MFB began a Ladder Platform Replacement project 170, when it ordered two new Bronto Ladder Platform appliances; in May 2011 a grievance was initiated by the UFU claiming the MFB had not consulted; the appliances were delivered in May 2012. Following delivery there have been numerous steps taken to agree the commissioning of the appliances. In October 2012, a serious safety problem was found when there was observed “a three metre gap between the evacuation ladder on the cage and the ladder that was on the boom”171 and at May 2014, the appliances were still not in use, although two additional ladder sections had been delivered and the process of fitting the ladders is almost complete172; the UFU submissions on this matter include;
“The example does not assist the MFB. It shows in fact how consultation is able to protect the safety of firefighters by identifying hazards at an early stage in order that can be rectified before a risk is realized when equipment is used by firefighters.” 173
● A dispute originating in 2010 about the development of a “Long duration breathing apparatus training course”. 174 One of the key issues was whether employees who declined on medical grounds to swallow an ingestible pill to monitor in real time their core body temperature would have access to the training; the training course has had to be modified to run without the pill, with the MFB arguing the money used to purchase the equipment has been wasted;175
● In 2011 there were issues regarding Exercise Fudo 176, being a large scale multi-agency field deployment exercise designed to test operational readiness prior to the fire season; the exercise has taken place in various forms since 2005 and an event was scheduled for November 2011; shortly before the scheduled date, the UFU notified the MFB of a grievance by the UFU, and as a result of which the MFB “were effectively compelled to make changes that we otherwise wouldn't have made to secure the agreement of the UFU to protect the event”177;
● Following his observations at a significant grassfire at Westmeadows in January 2012, Mr Youssef, an MFB Deputy Chief Officer, considered there was a need to devise and introduce a Fireground Accountability List (FAL) and associated Fireground Accountability System T-card (FAST-card) 178, being a spreadsheet to identify who was on shift at any time. The UFU sought consultation and then notified a grievance, which led to a conciliation conference before Commissioner Roe, the result of which was a Recommendation issued by him179 that resulted in the parties agreeing in March 2013 to the introduction of the FAL. Introduction of the FAST-card was delayed, including because the UFU was concerned about the GPS tracking functionality being used for disciplinary purposes and “full implementation of the FAST-card with GPS capability was not achieved until shortly before the hearing commenced in this matter.”180 The UFU argues about this issue that;
“The software solution represented by Fast-Card was welcomed by both parties. It was not controversial. Insofar as there was controversy about it, it was confined to the potential for the GPS component to be utilized for disciplinary purposes. The UFU can hardly be criticized for raising such an issue. The MFB agreed to it and FAST-Card was implemented. There is evidence that the trial without the tracking component impaired the application of the software for the intended purpose.
The totality of the evidence on this subject demonstrates how, in this case, the Operational Staff Agreement appropriately balanced the interests of employees and management. What Mr Youssef does is to inject into his evidence criticism of the UFU which obscures rather than reveals the workings of the Operational Staff Agreement. The example does not assist the MFB.” 181
● In April 2012, a grievance arose about the MFB’s participation in a multi-agency appliance display at Knox 182; the grievance was lodged three days prior to the display which effectively prevented the MFB’s participation as planned, about which the UFU commented;
“The MFB’s complaint is that the UFU raised a grievance thereby invoking the status quo and preventing it from undertaking the multi-agency drill with the CFA in April 2012. However, as the MFB accepts, the UFU was concerned about the number of appliances that were being taken from fire stations and taken outside the Melbourne Fire District”. 183
● From mid 2012, the MFB sought to consult over a “Merlin Telemetry” trial 184, being a trial associated with an initiative to address OHS issues associated with the MFB’s breathing apparatus system, and the Merlin Telemetry is a radio transponder which transmits distress signals and information about how much air time is left in a breathing apparatus set.185 The proposed trial led to an extensive consultation over development of an associated training package, with the consultation concluding only in August 2013, at which time it was decided that a training package was not actually required; following this, the trial commenced in October 2013.186 The UFU argues about this situation that;
“This is not an example of avoidable delay caused by consultation, it is an example of a shared belief about the need for the proposal to be addressed by the Training sub-committee that turned out ... to be incorrect. The consultative process cannot be blamed for that.” 187
● In late 2012, the MFB developed a wildfire awareness drill session 188 to enhance firefighters’ understanding of how to respond to wildfire events; the session was run in 2012 and 2013 and was then the subject in 2014 of advice from the UFU of concerns and “to seek your confirmation that this matter will be progressed through the consultation process”189, which meant the training was delayed;
● In March 2013 a dispute arose about an order for a Pumper Tanker to be moved from the Melbourne CBD Eastern Hill fire station to Sunshine North fire station. 190 In the ensuing dispute the MFB sought FWC orders on the ground that the UFU action constituted industrial action, the outcome of which was the UFU agreed to withdraw its grievance, and the tanker was moved to Sunshine.191 The UFU argues the decision by the MFB for the transfer of the appliance was ill-conceived and “made for entirely wrong reasons unconnected with operational requirements”, neither satisfying the concerns of firefighters at the Sunshine North Fire Station, or the concerns that fire cover in the CBD was being diminished192;
● In January 2014, a dispute arose regarding the commissioning of Mark V trucks for Emergency Medical Response (EMR) heatwave response 193; the MFB had been requested by the State Emergency Management Team to provide greater assistance with EMR activities as a result of a heatwave then being experienced in Victoria; Mr Youssef’s evidence is that;
“In this meeting of the SEMT, Paul Holman, Operations Manager of Ambulance Victoria (AV) raised concerns about a significantly increased risk of cardiac arrest due to a forecast heatwave. AV was concerned about the potential loss of life associated with an increased incidence of cardiac arrest. Mr Holman said that AV would appreciate any additional assistance that could be provided by the MFB to help save lives.
The First Responder program aims to reduce the amount of time taken to respond to life threatening emergencies involving cardiac arrest. When a person experiences a cardiac arrest within Metropolitan Melbourne, AV paramedics and MFB firefighters are dispatched simultaneously to the patient. MFB firefighters are trained in the initial management of life threatening medical emergencies. If they are the first to arrive at the scene of the emergency, they will provide emergency medical care until the ambulance paramedics arrive and take over.” 194;
“The MFB determined that the best and safest option was to use the nine new Mark V pumper trucks in the MFB’s possession, but which had not yet been put in commission. The pumpers were not in commission due to a combination of protected industrial action by MFB employees at the Thornbury Workshop (who are not covered by the Agreements) and the refusal by the UFU to allow the pumpers to be commissioned.” 195
[281] It seems likely, on the basis of their industrial history and use of the FW Act, that within 18 months other industrial arrangements of some sort will be in pace, whether that be one or more replacement agreements or a Workplace Determination, which could potentially be industrial action related or bargaining related 437.
[282] Even so, I consider that the content of such Fair Work Instrument will not be as advantageous to employees or the UFU in respect of the requirements for consultation; for “agreement-to-change” arrangements; or for the progression of disputes. With the 2010 Agreements terminated, the tension in bargaining would be for terms and conditions built up from what was now the base of employment conditions (whether that be the undertakings, the Modern Award or the NES). As a result, it would be unlikely that the existing employment conditions would be replicated in an ongoing instrument.
[283] Because of these factors my overall consideration in respect of the likely effect of changes to the parties bargaining position is that termination of the 2010 Agreements will lead to an appreciable and unmatched shift of the parties’ bargaining position in the favour of the MFB.
Likely effect of potential consequential changes for the MFB, such as to its performance or productivity
[284] The MFB contention is that with the termination of the 2010 Agreements, the MFB will not have to consult and reach agreement before implementation of change, with it being argued in relation to the MFB’s performance or productivity objectives that;
“(a) some of the content is operating in a way that is detrimental to the MFB and the achievement of its statutory objectives;
(b) some of the content operates in a way that is detrimental to a productive, fair and balanced workplace” 438
[285] The MFB’s statutory objectives include those set out in the MFB Act, as amended and supplanted by the Emergency Management Act 2013 (Vic), with the former providing the following functions for the Metropolitan Fire and Emergency Services Board, being the corporate entity created by the Act.
“7 Functions of Board
(1) The functions of the Board are—
(a) to provide for fire suppression and fire prevention services in the metropolitan district; and
(b) to provide for emergency prevention and response services in the metropolitan district; and
(c) to carry out any other functions conferred on the Board by or under this Act or the regulations or any other Act or any regulations under that Act.
(2) The Board has all powers necessary to carry out its functions.
(3) The functions of the Board extend to any vessel berthed adjacent to land which by virtue of section 4(2) is part of the metropolitan district.”
[286] Section 7AA provides a duty for the MFB to assist in the response to any major emergency occurring within Victoria, and further functions that now connect with the powers and functions of the Emergency Management Act 2013 (Vic) are set out within s.7A of the Metropolitan Fire Brigades Act 1958 (Vic);
“7A Objective
The objective of the Board in performing its functions and exercising its powers under this Act is to—
(a) contribute to a whole of sector approach to emergency management;
(b) promote a culture within the emergency management sector of community focus, interoperability and public value.”
[287] Is it more likely than not that termination of the 2010 Agreements will assist the MFB in achievement of these objectives?
[288] The proposition that some content of the current agreements is detrimental to a productive, fair and balanced workplace appears to stem from the MFB’s experience in introducing change that would be unremarkable in many workplaces, as highlighted by some of the disputes it has faced over matters such as decisions about the replacement of equipment; attendance at field and training days; introduction of new software or workplace policies or training; or decisions about how best to respond to extreme heat conditions.
[289] Some disputes will no longer be able to be agitated in the future either at all, or to the degree that may have been possible to date, at least under the framework of the FW Act. The dispute resolution procedure, at least as it is manifest in a post-undertakings Fair Work Instrument, may prevent others from being dealt with by the Fair Work Commission in the way they have been to date. For the period of the undertakings, the likely effect of the broad commitment about what the dispute resolution process applies to, will be to continue to allow most, and perhaps all, disputes that arise to be dealt with by the Commission, either for conciliation or arbitration.
[290] Articulated above, with reference to the likely effect of termination on changes in the consultation framework and dispute resolution procedure are findings made about the likelihood of there being improvements in those for the MFB. In particular, I found that there would be an improvement, but the extent of the improvement will be dependent on the enforceability of the undertakings and whether they give the Commission jurisdiction to deal with disputes. This being the case, it follows that the likelihood of there being improvements to the MFB’s performance or productivity will be similarly dependent on findings to be made about the enforceability of the undertakings and whether the Commission has any or sufficient jurisdiction to deal with disputes that may arise under the undertakings.
[291] The history of the relationships between the MFB, its employees and the UFU, amply demonstrated with the evidence in these proceedings, is fractious and litigious, with frequent, matters referred either for determination by this Commission or the Courts. It is likely, tending towards certainty, that an immediate post-termination legal dispute would be resolution of the question of whether the undertakings are enforceable and whether they, or something else, give the Commission jurisdiction to deal with disputes. It can be expected that this likelihood will temper such improvement as may be expected to the MFB’s performance or productivity as a consequence of termination of the 2010 Agreements, at least for the time that it takes the Commission or the Courts to resolve the matter, which may well be a significant distance into the 18 months allowed for in the undertakings.
[292] Notwithstanding this predictability, and as referred to earlier, I consider it more likely than not that there will be in place, by the time the undertakings expire, a replacement enterprise agreement of some type, or another Fair Work Instrument, such as a Workplace Determination and that instrument is likely to have within it consultation provisions and a dispute resolution provision somewhere between the content of the undertakings and the provisions of the 2010 Agreements.
[293] Drawing these factors together, I consider that there will be a positive impact for the MFB’s performance and productivity, for the reason it will not be required to consult to the level it has in the past, or for as long and will also not be subject to the “agreement-to-change” or “status quo” provisions to which it is presently bound. However, the dimension of the positive impact is subject to an externality, beyond the control of the MFB, being the questions of the enforceability of the undertakings and the Commission’s jurisdiction to deal with a dispute arising under the undertakings. In addition, the duration of the positive impact is likely to be time-limited, firstly because of the time it may take for resolution of that externality, and secondly because of the prospect of an ongoing Fair Work Instrument with consultation and dispute resolution procedures enhanced from those within the undertakings, proximate to the time of expiry of the undertakings.
[294] It is also the case that the size of the positive effect for the MFB is likely to be attenuated by a further effect, the impression about which was amply evident in hearing the evidence, but which was not addressed to any significant extent in the parties’ submissions.
[295] The illustrative matters to which I was taken by the evidence are certainly a mix of problems associated with consultation and negotiation, together with the problems stemming from the text of the agreements, but the benefit of seeing and hearing the 37 witnesses in a continuous stream was to highlight that not all of the problems faced by the MFB stem from the formalities of consultation and the “agreement-to-change” arrangements of the 2010 Agreements. This view of the evidence leads to the proposition that the workplace inertia faced by the MFB is likely to stem as much from formalities of the agreements as perhaps its organisational and managerial culture.
[296] The examples of this proposition are legion. When Mr Christopher Watt, an Assistant Chief Fire Officer of more than 10 years standing, and at the most senior levels of an organisation of 1,800 operational staff refers to “the MFB” or “management” he doesn’t mean himself, but those above him, 439 even though in many other organisations he would be considered as a senior executive with critical responsibilities for development and deployment of strategy and culture. This belief about status or responsibility was not unusual; the impression I gained was that senior staff frequently saw the MFB as an externality to them, rather than them being an integral part of it, responsible for its direction, strategy and culture.
[297] When managers make decisions within the scope of their training, skill and authority, but others, including their peers, disagree with those decisions, the disagreement is often active and persistent, without the seeming potential for acceptance that “great minds may differ”. The decision by Mr Darren Davies, another Assistant Chief Fire Officer, to move an appliance from the Melbourne CBD to Sunshine North is such an example. 440 Further examples showing managerial or cultural dimensions to an issue, as well as those stemming from the formal consultation and dispute resolution mechanisms of the 2010 Agreements can be found in other illustrative matters: the MFB’s participation in a multi-agency appliance display at Knox441; the loan of Breathing Apparatus Pod to the CFA at Bayswater;442 the proposed relocation of the Northcote fire station443 and the proposed refurbishment of the Eastern Hill Fire Station444; and the proposed wildfire awareness drill session.445 A further example comes from some of the behaviours reported by Mr Youssef in relation to the Hazlewood mine fire, in which he did not obtain critical information through his management hierarchy, but through the union.446
[298] These factors lead to the view that, notwithstanding the termination of the 2010 Agreements, or the elimination of the “agreement-to-change” and dispute resolution features of the existing agreements, there are other factors contributing to the formation and progression of the disputes that feature in the illustrative matters. Objectively, such elements of dysfunction are likely to be a factor in the dissipation of such gains as may arise from termination of the 2010 Agreements; or, at the least, such elements are unlikely to assist those gains that may arise.
[299] In all, I consider that these and other factors relevant to termination of the 2010 Agreements are likely to coalesce in such a way as to mean that the probability of there being an ongoing very significant positive impact for the MFB’s performance and productivity from termination of the 2010 Agreements is likely to be lower than might otherwise be anticipated. On the other hand, it is also unlikely there would be no or insignificant positive impact termination of the 2010 Agreements.
[300] I consider that, on balance, it is likely there will be a positive effect of termination through consequential changes of termination of the 2010 Agreements for the MFB, such as to its performance or productivity, however that positive effect is unlikely to be great, being lower than might be anticipated by the MFB.
Likely effect of potential consequential changes for employees, such as for their safety at work
[301] I consider that, for reason of the MFB’s recognition about the importance of workplace safety, coupled with the statutory obligations of Victorian OHS legislation, it is unlikely that an effect of termination of the 2010 Agreements will be a reduction in employees’ safety while at work.
Likely effect of changes for the UFU
[302] There appears little, if any, direct evidence about the effect of termination on the UFU as the employee organisation covered by the 2010 Agreements, and I can infer no specific effects.
Summary - likely effects of termination of the 2010 Agreements
[303] In summary, after consideration of the likely effects of termination on each of the employees, the employer and each employee organisation covered by the 2010 Agreements, I have concluded the following in relation to each sub-factor considered by me;
● The likely effect of termination on changes to conditions of employment will be a significantly less favourable environment than now for employees for the duration of the undertakings;
● The likely effect of termination in relation to the consultation framework and dispute resolution procedure;
- will be a reduction in the matters the MFB faces that need to be the subject of consultation; and none of those would be the subject of “agreement-to-change” or veto requirements during consultation, or arbitration if a Modern Award dispute could be raised about the matter;
- Employees and the UFU will lose the opportunity to raise and progress disputes with a genuine connection to occupational health and safety under the auspices of an instrument such as the 2010 Agreements, governed as they are by the FW Act;
- The size of the changes referred to will be dependent on the enforceability of the undertakings in a Court and the extent to which disputes that arise are within the Commission’s s.739 dispute resolution jurisdiction. At the minimum, the MFB will have some level of improvement from the current situation in relation to number or range of the matters requiring consultation or progression through the dispute resolution procedure.
● Termination of the 2010 Agreements will result in an appreciable and unmatched shift of the parties’ bargaining position in the favour of the MFB;
● On balance, it is likely there will be a positive effect of termination for the MFB through consequential changes of termination of the 2010 Agreements, such as to its performance or productivity, however that positive effect is unlikely to be great, being lower than might be anticipated by the MFB.
● It is unlikely that an effect of termination of the 2010 Agreements will be a reduction in employees’ safety while at work.
● I find no specific effects of termination on the UFU as the employee organisation covered by the 2010 Agreements.
[304] The foregoing indicates that some of the sub-factors in relation to the effects on those covered fall in favour of the MFB, lending support to the proposition that it may be appropriate to terminate the 2010 Agreements and some against them. However the consideration I have undertaken leads to the view there are two very significant likely effects on employees and the UFU which, when viewed objectively against the factors weighing in favour of termination, might lead to the view that it is not appropriate to terminate the agreements. I refer in particular to my findings that employees and the UFU will lose the opportunity to raise and progress disputes with a genuine connection to occupational health and safety, and that termination of the 2010 Agreements will result in an appreciable and unmatched shift of the parties’ bargaining position in the favour of the MFB.
[305] It is possible that either of these matters taken on their own, may be insufficient to lead to a finding that it is inappropriate to terminate the agreements. However in some respects such proposition is a hypothetical, since plainly the two have arisen together.
[306] The prospect of there being an appreciable and unmatched shift of the parties bargaining position in the favour of the MFB is the more significant of the two factors.
[307] If that factor were on its own there would not be a compensating factor for the UFU through any other mechanism, save perhaps for the possibility of there being findings in the appeal of UFU v CFA that were wholly against the MFB’s contentions in respect of the Re AEU implied Constitutional limitation.
[308] If that were the case, the possibility arises that the foreshadowed post-termination bargaining imbalance could persist for some considerable time, even if there was an imperative for the parties to conclude a new enterprise agreement or pursue a workplace determination prior to the expiry of the undertakings. It is also the case of course that the undertakings would become the base from which negotiations or consideration commenced. This would be more against the interests of the UFU, as represented by the whole of the employment conditions in the 2010 Agreements, than it was in the employees and union’s favour.
[309] On the other hand, at least some attributes associated with the lost opportunity to raise and progress OHS disputes through the means of an enterprise agreement or other Fair Work Instrument formed under the FW Act, might be capable of compensated through mechanisms available through the OHS Act or other legislation.
[310] Having taken these matters into account, I consider the likely effect of termination on each of the employees, the employer and each employee organisation covered by the 2010 Agreements, will be a significantly greater negative effect on the employees and the union than the positive effect on the MFB. This is for the reasons firstly that disputes that have a genuine connection with occupational health and safety will no longer be required to be the subject of consultation and a requirement to reach agreement and will not be able to progressed through the dispute resolution procedure; and secondly that termination of the 2010 Agreements will result in an appreciable and unmatched shift of the parties’ bargaining position in the favour of the MFB.
Appropriate to terminate; “all the circumstances”
[311] Are there other circumstances to be taken account of?
[312] Consideration of “all the circumstances” does not show factors additional to those specifically referred to within s.226(b)(i) and (ii) that require being taken account of. Accordingly this consideration is a neutral factor.
Summary – appropriate to terminate
[313] My findings in relation to the likely effect of termination on those covered, are that there will be a significantly greater negative effect on the employees and the union than the positive effect on the MFB. I have made this finding for two reasons. Firstly because disputes that have a genuine connection with occupational health and safety will no longer be required to be the subject of consultation and a requirement to reach agreement and will not be able to progressed through the dispute resolution procedure. Secondly, I have decided this because termination of the 2010 Agreements will result in an appreciable and unmatched shift of the parties’ bargaining position in the favour of the MFB. There are insufficient findings stemming from my other consideration of the circumstances, effects or views that would suggest the findings I have made about the effects on employees and the UFU are, in context, lesser factors to be taken account of in my consideration of whether it is appropriate to terminate the 2010 Agreements.
[314] I therefore consider that because of these two factors taken together, it is not appropriate to terminate the 2010 Agreements.
9 CONCLUSION
[315] The finding that termination of the 2010 Agreements is not contrary to the public interest is the first of two necessary pre-conditions for the Commission to be required to terminate the 2010 Agreements.
[304] The other is that termination is appropriate.
[316] Since I have found that it is not appropriate to terminate the two 2010 Agreements, I must find the Commission is not required by s.226 to terminate them, and now make such finding. I do not find there to be any other grounds that would give the Commission a discretion to terminate the 2010 Agreements.
[317] Accordingly, the MFB’s Enterprise Agreement Termination Application must be dismissed. An Order dismissing the application is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr F Parry, QC and Mr P Wheelahan (of Counsel)for the Metropolitan Fire & Emergency Services Board
Mr H Borenstein, QC and Mr M Harding (of Counsel) for the United Firefighters’ Union of Australia
Hearing details:
2014.
Melbourne:
July 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25
August 21, 22
1 AE881005
2 AE881004
3 See [2010] FWAA 7414 (Operational Staff Agreement); [2010] FWAA 7413 (ACFO Agreement)
4 See MFB Act, s.4
5 Exhibit MFB 7, para 13 - 19
6 Exhibit MFB 8, para 36; see also Exhibit UFU 3, para 24
7 MFB Outline of Submissions dated 15 May 2014, paras 4 - 5
8 Ibid, para 7
9 Exhibit MFB 55, paras 6.2 - 6.3; per NTEIU v Monash University[2013] FWCFB 5982 at [19]
10 MFB Outline of Submissions dated 15 May 2014, at para 17
11 Ibid, paras 19 - 27
12 Ibid, paras 28 - 32
13 (1995) 184 CLR 188
14 MFB Outline of Submissions dated 15 May 2014, para 19
15 Ibid, para 22
16 Ibid, para 25
17 Ibid, para 26
18 Ibid, para 29
19 Ibid, para 28; See also Exhibit MFB 55, Appendix B
20 MFB Outline of Submissions dated 15 May 2014, para 30; per UFU v CFA [2014] FCA [17], at [132]-[133]; Parks Victoria v The Australian Workers’ Union[2013] FWCFB 950, at [369].
21 Ibid, para 32
22 Exhibit MFB 55, para 17.1
23 MFB Outline of Submissions dated 15 May 2014, para 33 - 36
24 (1999) 91 IR 184
25 MFB Outline of Submissions, dated 15 May 2014, para 39
26 FW Act, s.226(b)(i) and (ii)
27 MFB Outline of Submissions dated 15 May 2014, para 40
28 Ibid, para 41
29 Ibid, para 42
30 Ibid, para 43
31 Exhibit UFU 5, para 2
32 Ibid, para 20
33 Ibid, para 21
34 Ibid, paras 31 - 32
35 Ibid
36 Ibid, para 33
37 Ibid, para 34
38 Ibid, para 37
39 Ibid, para 39
40 Ibid, paras 40 - 42
41 Ibid, para 47
42 Ibid, para 48
43 (1999) 91 IR 184, at [44]
44 Exhibit UFU 5, para 46
45 [2010] FWA 6468, (2010) 204 IR 243
46 Ibid, at [33]
47 Exhibit UFU 5, para 59; relying upon Re Tahmoor Coal Pty Ltd (2010) 204 IR 243, at [58]
48 Ibid, paras 63 - 64
49 Ibid, para 67
50 Ibid, para 72
51 (2010) 204 IR 243, at [55]
52 MFB Outline of Submissions dated 15 May 2014, para 76
53 Ibid, para 78
54 Ibid, para 83
55 Ibid, para 81 - 82
56 Ibid, para 84
57 Ibid, para 85
58 Ibid, para 86, citing Re Mount Thorley (1999) 91 IR 184 at 192 at [47]
59 Ibid, para 88 - 89
60 Ibid, paras 93 - 94
61 Ibid, para 100
62 Citing Australian Electoral Commission v Hickson (1997) 76 IR 399; per Branson and Marshall JJ at 416
63 Exhibit UFU 5, paras 102 - 107
64 Ibid, para 109 - 110
65 MFB Outline of Submissions dated 15 May 2014, para 45
66 Exhibit UFU 5, para 112
67 MFB Outline of Submissions dated 15 May 2014, paras 46 - 47
68 Exhibit UFU 5, paras 114 - 117
69 Exhibit MFB 55, para 18
70 Ibid, para 7.1
71 (2005) 139 IR 34
72 [2010] FWA 2434
73 Exhibit MFB 55, para 7.6
74 Ibid, para 7.5
75 Exhibit MFB 3, tab 6; AG790039 (1999) Print R5723
76 Ibid, cl. 6.2
77 Ibid, cl. 9.2.2
78 Ibid, cl. 9.2.5
79 Ibid, cl. 12.1
80 Ibid, cl 19.1
81 Ibid, cl. 23.1
82 Ibid, cl. 20
83 Exhibit MFB 3, tab 4; AG819934 (2002) Print PR925132
84 Ibid, cl. 6.2
85 Ibid, cl. 4.1
86 1999 Agreement, cl. 11
87 2002 Agreement, sch. 2, cl. 4.6.5
88 Exhibit MFB 3, tab 3; AG848710 (2006) PR971796
89 Ibid, cl 4.2
90 Ibid, cl. 6.1.3 and schedule 8; the reference to “the VFIEI Award” is apparently a reference to the Victorian Firefighting Industry Employees Interim Award 2000 (code AP801881)
91 Ibid, cll. 9.1 and 9.2.5
92 Ibid, cl. 12.9
93 Exhibit MFB 10, para 20
94 Exhibit MFB 3, tab 3, AG84710 (2006) PR971796, cll. 9.2.2 and 4.5.1
95 Ibid, sch. 2, cl 4.6.5 and 4.7.4
96 [2010] FWAA 7414, AE881005 (PR501990) Roe C
97 Ibid, cl 4.1
98 Ibid, cl 6.3
99 [2010] FWAA 7413
100 [2010] FWAA 7414, cl 13.1
101 Ibid, cl.15
102 Exhibit MFB 55, para 3; see also 2010 ACFO Agreement, cl.8
103 clause 19.4
104 Exhibits MFB 7 and 8
105 Exhibits MFB 10 and 11
106 Exhibits MFB 12 and 13
107 Exhibits MFB 14 and 15
108 Exhibit MFB 17
109 Exhibits MFB 18 and 19
110 Exhibits MFB 20 and 21
111 Exhibits MFB 22 and 23
112 Exhibits MFB 25 and 26
113 Exhibits MFB 27 and 28
114 Exhibits MFB 29 and 30
115 Exhibits MFB 31 and 32
116 Exhibits MFB 33 and 34
117 Exhibits MFB 35 and 36
118 Exhibits MFB 37, 38 and 39
119 Exhibit UFU 3
120 Exhibit UFU 6
121 Exhibit UFU 14
122 Exhibit UFU 16
123 Exhibit UFU 17
124 Exhibit UFU 19
125 Exhibit UFU 20
126 Exhibit UFU 21
127 Exhibit UFU 23
128 Exhibit UFU 25
129 Exhibit UFU 27
130 Exhibit UFU 28
131 Exhibit UFU 29
132 Exhibit UFU 30
133 Exhibit UFU 31
134 Exhibit UFU 32
135 Exhibit UFU 33
136 Exhibit UFU 34
137 Exhibit UFU 35
138 Exhibit UFU 36
139 Exhibit UFU 37
140 Exhibit UFU 38
141 Exhibit UFU 46
142 Exhibit UFU 48
143 Exhibit MFB 55, Appendices D to FF
144 Exhibit MFB 55, Appendix O; Exhibit UFU 75, paras 424 - 427
145 Exhibit MFB 55, Appendix S; Exhibit UFU 75, paras 439 - 448
146 Exhibit MFB 55, Appendix M; Exhibit UFU 75, paras 411 - 417
147 [2013] FWC 4758
148 Exhibit MFB 55, Appendix V; Exhibit UFU 75, paras 466 - 474
149 Ibid, para 1
150 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
151 Exhibit MFB 55, Appendix J; Exhibit UFU 75, paras 392 - 397
152 Exhibit MFB 29, para 25
153 Ibid, para 46
154 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
155 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
156 Exhibit MFB 55, Appendix I; Exhibit UFU 75, paras 388 - 391
157 Exhibit MFB 27, para 175
158 Exhibit MFB 55, Appendix FF; Exhibit UFU 75, paras 561 - 583
159 Exhibit MFB 55, Appendix U; Exhibit UFU 75, paras 462 - 465
160 Exhibit UFU 75, para 462 - 465
161 Exhibit MFB 55, Appendix AA; Exhibit UFU 75, paras 531 - 533
162 Exhibit MFB 25, para 103
163 Exhibit UFU 75, para 531
164 Exhibit MFB 55, Appendix AA, para 1
165 Exhibit UFU 75, paras 532 - 533
166 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
167 Exhibit MFB 27, para 74
168 Exhibit MFB 8, para 98
169 Exhibit UFU 75, para 399
170 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
171 Exhibit MFB 27, para 110
172 Ibid, para 130
173 Exhibit UFU 75, para 438
174 Exhibit MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
175 Ibid, para 6
176 Exhibit MFB 55, Appendix G; Exhibit UFU 75, paras 381 - 384
177 Exhibit MFB 25, para 74
178 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
179 C2013/3358, 20 March 2013
180 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
181 Exhibit UFU 75, para 553 - 554
182 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
183 Exhibit UFU 75, para 379
184 Exhibit MFB 55, Appendix Q; Exhibit UFU 75, paras 434 - 438
185 Exhibit MFB 25, para 203
186 Ibid, para 235 - 238
187 Exhibit UFU 75, para 437
188 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
189 Exhibit MFB 25, at para 92
190 Exhibit MFB 55, Appendix T; Exhibit UFU 75, paras 449 - 461
191 Exhibit MFB 31, paras 56 - 58
192 Exhibit 75, para 451
193 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
194 Exhibit MFB 14, para 173 - 174
195 Ibid, para 177
196 Ibid, para 180
197 Exhibit UFU 75, para 509
198 Ibid, para 512
199 Ibid, paras 522 - 523
200 Exhibit MFB 55, Appendix H; Exhibit UFU 75, paras 385 - 387
201 Exhibits MFB 27, para 74; MFB 8, para 98
202 Exhibit MFB 22, paras 29 - 30
203 Exhibit MFB 55, Appendix Z; Exhibit UFU 75, paras 527 - 530
204 Ibid, para 1
205 Exhibit UFU 75, para 528
206 Victorian Government (Melbourne, December 2012) accessible at Ibid, contained within Exhibit MFB 18, p 70
208 Ibid, p 82
209 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
210 Exhibit MFB 55, Appendix N; Exhibit UFU 75, paras 418 - 423
211 Exhibit MFB 55, Appendix W; Exhibit UFU 75, paras 475 - 495
212 Exhibit MFB 55, Appendix X; Exhibit UFU 75, paras 496 - 506
213 Exhibit MFB 14, para 43
214 Exhibit MFB 15, para 11
215 Exhibit UFU 75, para 497
216 Exhibit MFB 14, paras 35 - 36
217 Exhibit MFB 7, paras 24 - 28
218 Exhibit MFB 55, para 17.1
219 MFB Outline of Submissions dated 15 May 2014, para 29
220 Exhibit UFU 75, para 49 - 50
221 Ibid, para 51
222 Ibid, para 57
223 Ibid, para 69
224 (1999) 83 FCR 346, at p 354
225 Exhibit MFB 55, para 4.7
226 (1947) 74 CLR 31
227 (1995) 184 CLR 188, at [42]
228 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, at 232, per Mason CJ, Brennan, Deane, Toohey, Gaudron, McHugh JJ
229 Parks Victoria v The Australian Workers' Union and others[2013] FWCFB 950
230 Ibid, at [294] – [295]
231 United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17, at [103] – [106]
232 The decision concerns the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Enterprise Agreement 2010, approved by the FWC on 21 October 2010
233 [2014] FCA 17, at [133]
234 Ibid, at [10]
235 (2010) 204 IR 243, at [30]
236 (2005) 139 IR 34, at [23]
237 Exhibit UFU 75, para 42
238 Exhibit MFB 55, para 7.5
239 (1999) Print S0542
240 (2010) 204 IR 243
241 Exhibit 55, para 7.6
242 (1999) Print S0542, at [41]
243 Ibid, at [41], see elements (b), (d), (e) and (f)
244 [2010] FWA 2434
245 Ibid, at [13]
246 Ibid, at [14]
247 [2013] FWC 5385
248 Ibid, at [35]
249 139 IR 34, at [23]
250 (2010) 204 IR 243, at [46]
251 [2010] FWA 3483, at [21]; see also Re Mt Thorley Operations (1999) 91 IR 184, at [42]; ERA v LHMU[2010] FWA 2434, at [18], [27]; SDV Australia Pty Ltd [2013] FWC 5385, at [37] – [42]
252 PR977415 and PR976734
253 PR982556
254 Print Q6511 (December 1999)
255 [2010] FWA 3483, at [26] – [27]
256 [2010] FWA 3483, at [30] – [34]
257 [2010] FWA 2434
258 Ibid, at [24] – [27]
259 (2010) 204 IR 243
260 Ibid, at [49] – [51]
261 [2013] FWC 5385, at [36] – [42]
262 [2010] FWA 3483, at [30] – [32]
263 Ibid, at [21]
264 [2010] FWA 3434, at [6]
265 Ibid, see [8] - [10], [12]
266 [2010] FWA 3483, see [2], [8], [11]
267 [2013] FWC 5385, see [1], [3], 48] - [49]
268 (2010) 204 IR 243, at [55]
269 Ibid, at [46]
270 Operational Staff Agreement, cl.4.1
271 [2010] FWA 3434, at [6]
272 Ibid, at [29] - [ 31]
273 (2010) 204 IR 243, at [54]; following ERA v LHMU[2010] FWA 2434, at [29]
274 Ibid
275 cf ERA v LHMU[2010] FWA 2434, at [14]
276 (2010) 204 IR 243, at [55]
277 See, for example, Exhibit UFU 14, para 131; Exhibit UFU 35, para 7
278 Exhibit UFU 16, para 138
279 Exhibit UFU 29, para 26
280 Exhibit UFU 31, para 36; Exhibit UFU 43, para 21; Exhibit UFU 74, statement of Rebecca Locke, para 3
281 Exhibit UFU 31, para 43; Exhibit UFU 6, para 79; Exhibit UFU 36, para 33
282 Exhibit UFU 74, statement of Michael Pratt, para 8
283 Exhibit UFU 3, para 41
284 Exhibit UFU 57, para 14; Exhibit UFU 68, para 8; Exhibit UFU 74, statement of John Topic, para 9; Exhibit UFU 74, statement of Rebecca Locke, para 3
285 Exhibit UFU 34, para 12
286 Ibid, para 13
287 Exhibit UFU 28, para 24
288 Ibid, para 25
289 Exhibit UFU 27, para 3
290 Exhibit UFU 74, statement of Ian Porter, para 3; Exhibit UFU 27, para 3
291 Exhibit UFU 33, para 31, Exhibit UFU 74, statement of John Topic, para 11
292 Exhibit MFB 55, para 20.2
293 Exhibit UFU 46
294 Exhibit UFU 23, para 10
295 Ibid, para 6
296 Ibid, para 11
297 Exhibit UFU 46, p 10, item (g)
298 Ibid, p 9
299 Ibid
300 Ibid, p 10
301 Exhibit MFB 51
302 MFB 55, para 20.5(c)
303 Exhibit MFB 51
304 (1959) 101 CLR 298
305 The UFU Victorian Branch Secretary
306 Exhibit UFU 8, p 2
307 Exhibit MFB 7, para 24
308 Exhibit UFU 8, p 5
309 Ibid, p 12
310 Exhibit MFB 7, paras 10 - 19
311 See for example, Exhibit MFB 37, paras 49 - 53
312 Exhibit UFU 5, para 60
313 Exhibit UFU 23, para 10
314 Transcript, PN 9653
315 Extract from Transcript, PN 7517 - 7538
316 Exhibit MFB 55, para 32.3
317 Exhibit MFB 55, para 21.1
318 MA000111
319 Exhibit UFU 5, para 71; also Exhibit UFU 75, para 52
320 Exhibit MFB 55, para 9.9; see also Exhibit MFB 2, tab 7, Metropolitan Fire and Emergency Services Board, Commanders Interim Award 2002, AP839447
321 See for example Exhibits MFB 5, cl.25; 29; MFB 55, para 32.7;
322 Exhibit UFU 5, para 32
323 Ibid, para 31
324 Exhibit MFB 55, paras 9.2 – 9.3
325 Exhibit UFU 75, para 97 – 98; in relation to Commanders, the UFU notes Commanders who held the position of the now defunct rank of Inspector are covered by the MFB Commanders Interim Award 2002 in which a modernisation application is reserved.
326 Exhibit MFB 55, para 41.1
327 Exhibit MFB 55, para 9.7
328 Amended by the MFB to 18 months – see Exhibit 55, para 41.1
329 (2010) 204 IR 243, at [13]
330 [2010] FWA 3483, at [35]
331 1999 Agreement, cl. 11
332 Ibid, cl.9.3.4
333 2002 Agreement, cl.9.1
334 FW Act, s.205(1)
335 (2010) 204 IR 142, per Keane CJ and Marshall J
336 Ibid, at [14]
337 See also [32] and [37]
338 (1987) 163 CLR 117
339 Ibid, at p.135, per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
340 Transcript, PN 11289
341 2010 Operational Staff Agreement, cl.15 and cl.13.3.2
342 Ibid, cl.88
343 Ibid, cl.19.1
344 Exhibit MFB 5, cl.10.1(a) and 15.2
345 Ibid
346 Ibid, cl.15.4(h)
347 Exhibit UFU 75, paras 291 - 293
348 Fire Fighting Industry Award 2010 (MA000111), cll. 8.1, 9.1 and 9.4
349 Exhibit MFB 55, para 33.5
350 Exhibit MFB 5, Sch.1
351 MFB Outline of Submissions dated 15 May 2014, para 46 - 47
352 Exhibit MFB 55, Appendix M; Exhibit UFU 75, paras 411 - 417
353 Exhibit MFB 55, Appendix V; Exhibit UFU 75, paras 466 - 474
354 Exhibit MFB 55, Appendix S; Exhibit UFU 75, paras 439 - 448
355 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
356 Exhibit MFB 55, Appendix G; Exhibit UFU 75, paras 381 - 384
357 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
358 Exhibit MFB 55, Appendix AA; Exhibit UFU 75, paras 531 - 533
359 Exhibit MFB 55, Appendix Z; Exhibit UFU 75, paras 527 - 530
360 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
361 Exhibit MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
362 Exhibit MFB 55, Appendix H; Exhibit UFU 75, paras 385 - 387
363 Exhibit MFB 55, Appendix I; Exhibit UFU 75, paras 388 - 391
364 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
365 Exhibit MFB 55, Appendix Q; Exhibit UFU 75, paras 434 - 438
366 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
367 Exhibit MFB 55, Appendix T; Exhibit UFU 75, paras 449 - 461
368 Exhibit MFB 55, Appendix U; Exhibit UFU 75, paras 462 - 465
369 Exhibit MFB 55, Appendix W; Exhibit UFU 75, paras 475 - 495
370 Exhibit MFB 55, Appendix X; Exhibit UFU 75, paras 496 - 506
371 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
372 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
373 Exhibit MFB 55, Appendix FF; Exhibit UFU 75, paras 561 - 583
374 Exhibit MFB 55, Appendix O; Exhibit UFU 75, paras 424 - 427
375 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
376 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
377 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
378 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
379 Exhibit MFB 55, Appendix N; Exhibit UFU 75, paras 418 - 423
380 Exhibit MFB 5, Sch 1, cl.2.2
381 Exhibit UFU 75, paras 101, 128
382 Ibid, paras 292 - 293
383 Modern Award, cl.9.1
384 Exhibit MFB 55, para 33.5
385 See Exhibits MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
386 Exhibit MFB 25, para 155
387 Ibid, para 159
388 An Assistant Chief Fire Officer
389 Exhibit UFU 14, paras 118 - 120
390 Transcript, PN 6627 – 6631
391 Transcript, PN 7262
392 Transcript, PN 6667
393 Exhibit MFB 26, para 13; Transcript, PN 3121
394 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
395 Exhibit MFB 27, para 110
396 Transcript, PN 1213
397 Exhibit UFU 14, paras 102 - 105
398 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
399 Exhibit MFB 27, para 40
400 Exhibit UFU 21, paras 28 - 29
401 Exhibit MFB 27, para 74
402 Exhibit MFB 28, para 35
403 Exhibit MFB 55, Appendix K, para 3
404 Exhibit MFB 22, paras 27 - 30
405 Transcript, PN 7068 - 7069
406 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
407 Exhibit MFB 14, para 174
408 Ibid, para 177
409 Exhibit UFU 21, p.48
410 Exhibit MFB 14, para 180; pp.370-378; see also C2014/2674
411 Exhibit UFU 21, para 55
412 Ibid, paras 34 - 44
413 Ibid, para 51
414 Ibid, para 48
415 Exhibit MFB 15, paras 20 - 24
416 Exhibit MFB 7, para 60
417 Ibid, paras 66 - 67
418 Transcript, PN 1680
419 Exhibit UFU 21, para 52
420 Exhibit MFB 7, paras 83 - 84
421 Ibid, pp.139-140, Attachment PR-15
422 Transcript, PN 401 - 403, incorrectly transcribed
423 Macquarie Dictionary, (5th ed, 2009), p.545
424 Exhibit MFB 7, para 73, and Attachment PR-11
425 Operational Staff Agreement, cl.13.3.1 and 13.3.3
426 See FW Act, Pt 2-5, Div 3 and Div 4
427 [2014] FCAFC 84
428 (2010) 204 IR 243, at [54] – [55]
429 (2010) 204 IR 243, at [70]
430 Ibid, at [59]
431 Ibid, at [65] - [70]
432 Exhibit MFB 18, para 6
433 Exhibit MFB 19, para 11
434 Exhibit MFB 8, paras 61 - 63
435 Exhibit MFB 19, para 16-17
436 Exhibit UFU 75, para 177
437 See FW Act, Pt 2-5, Div 3 and Div 4
438 Exhibit MFB 55, para 20.8
439 Transcript, PN 10533 - 10536
440 Referred to in Exhibit MFB 55, Appendix T and Exhibit UFU 75, para 449 - 465
441 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
442 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
443 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
444 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
445 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
446 Transcript, PN 1570 - 1575
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