Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia

[2014] FWC 2498

[2014] FWC 2498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615A(2)—Application for the President to direct a Full Bench to perform a function

Metropolitan Fire & Emergency Services Board
v
United Firefighters’ Union of Australia
(AG2014/5121)

JUSTICE ROSS, PRESIDENT MELBOURNE, 14 APRIL 2014

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582 and 615A. Application refused.

[1] On 28 March 2014 the Metropolitan Fire and Emergency Services Board (the MFB) made an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the FW Act) to terminate two enterprise agreements - the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 and the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 (the ‘agreement termination applications’). The MFB has made application to refer the agreement termination applications to a Full Bench.

[2] Pursuant to s.615A(2) the MFB seek a direction under s.582 that a Full Bench hear and determine the agreement termination applications.

[3] Section 615A of the FW Act states:

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

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

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

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

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[4] As the MFB will make submissions for consideration in the substantive matter, it follows that it has standing to make an application pursuant to s.615A (see s.615A(2)). It also follows that I must direct that a Full Bench determine the agreement termination application if I am satisfied that ‘it is in the public interest to do so’.

[5] The MFB also advances an alternate submission. In the event that I am not satisfied that it is in the public interest that a Full Bench determine the matter it is submitted that I should nonetheless use my discretionary powers under s.582 to transfer the agreement termination applications to a Full Bench, for the reasons advanced in support of the MFB’s primary submission.

[6] The agreement termination applications were allocated to Commissioner Wilson and listed for Directions Hearing on 8 April 2014. During those proceedings the parties made oral submissions.

[7] The MFB has filed written submissions in support of its application 1 and the UFU has filed submissions in reply2, opposing the course proposed by the MFB. I have had regard to those submissions and to the transcript of the proceedings before Commissioner Wilson on 8 April 2014.

[8] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement termination application to a Full Bench.

[9] The expression ‘in the public interest’, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. 3

[10] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under ss 582 and 615A.

[11] Section 577 provides as follows:

“The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[12] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[13] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.

[14] The MFB advances three principal arguments in support of its referral application:

(i) the nature of the employer: the MFB is a publicly funded statutory body with various statutory functions, including emergency response services (encompassing emergency medical response), which are to the public benefit;

(ii) the terms and conditions of the enterprise agreements do not allow for a productive and effective fire service; and

(iii) there is uncertainty as to the legality of certain provisions of the enterprise agreements due to the combination of the reasoning of the High Court in Re AEU 4and the recent judgment of the Federal Court in UFU v CFA5.

[15] Other submissions were advanced on behalf of the MFB but the three identified appear to be those upon which most reliance is placed.

[16] I am not persuaded that it is in the public interest to refer the agreement termination applications to a Full Bench. There is no suggestion of any inconsistency in first instance decisions regarding the interpretation of the relevant statutory provisions and I am not persuaded that the submissions advanced on behalf of the MFB sufficiently enliven the public interest.

[17] The efficient allocation of the Commission’s resources is also a relevant consideration. The hearing is likely to take between 10 and 20 days and both parties have expressed a preference for the matter to be heard in one ‘block’ of hearing days. A significant number of witnesses are expected to be called, perhaps as many as 40. The duration and evidentiary nature of the proceedings are such that it is more suited to determination by a single Member, rather than a Full Bench.

[18] I have also considered the proposition, advanced on behalf of the MFB, whereby a Full Bench may choose to delegate the hearing of the evidence to a single Member. While a Full Bench may choose to adopt such a course practical considerations may militate against such an approach. In a highly contested matter, as these proceedings give every appearance of being, a range of evidentiary rulings may arise for determination during the course of oral evidence. If these issues are determined by a single Member delegated to hear evidence on behalf of Full Bench there is a risk of a subsequent challenge to those rulings, necessitating further delay.

[19] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the agreement termination applications, the MFB’s s.615A application must be dismissed.

[20] Nor am I persuaded that it is appropriate to exercise my discretion, under s.582, to transfer the applications to a Full Bench. Considerations of fairness, efficiency and expedition lead me to conclude that the appropriate course is to have these applications determined by a single Member.

PRESIDENT

 1   Exhibits A1 and A2

 2   Exhibit R1

 3   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ

 4 (1995) 184 CLR 188

 5 [2014] FCA 17 per Murphy J

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