United Firefighters' Union of Australia v Country Fire Authority
[2014] FWCFB 410
•13 FEBRUARY 2014
[2014] FWCFB 410 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Country Fire Authority
(C2013/6373)
Country Fire Authority
v
United Firefighters' Union of Australia
(C2013/6411)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeals against decision [[2013] FWC 7509] of Commissioner Wilson at Melbourne on 27 September 2013 in matter number C2013/4118.
DECISION OF SENIOR DEPUTY PRESIDENT ACTON AND DEPUTY PRESIDENT HAMILTON
Introduction
[1] The United Firefighters’ Union of Australia (UFU) and the Country Fire Authority (CFA) have appealed a decision of Commissioner Wilson of 27 September 2013. 1 The decision of the Commissioner concerned an application made by the CFA pursuant to the dispute resolution clause of the Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 20102(OS Agreement).
[2] The OS Agreement was approved by the predecessor to the Fair Work Commission (FWC) on 21 October 2010. 3 The OS Agreement covers the CFA, all employees engaged in or performing work that is or may be performed by an employee engaged in a classification or occupation referred to in the OS Agreement and the UFU.
[3] The dispute resolution clause 4 in the OS Agreement applies to all matters arising under the OS Agreement and contains a staged dispute resolution procedure. The procedure provides for disputes which have not been resolved at its earlier stages to be referred by the UFU or the CFA to the FWC and for the FWC to utilise all its powers in conciliation and arbitration to settle the dispute.5 The procedure also provides that a decision of the FWC under the procedure may be appealed and a dispute is not resolved until any such appeal is determined.6
[4] The application made by the CFA pursuant to the dispute resolution clause of the OS Agreement concerned a dispute about the application of clause 17 of the OS Agreement, particularly sub-clauses 17.3 and 17.4 of the OS Agreement.
[5] The application was the subject of conciliation by another member of the FWC but not resolved and was allocated to Commissioner Wilson for arbitration. Commissioner Wilson concluded sub-clauses 17.3 and 17.4 were “at least discriminatory and probably objectionable, insofar as they purportedly provide a benefit to UFU members and not to others”. 7 However, the Commissioner decided the sub-clauses could be rendered unobjectionable by removing the abbreviation “UFU” from the sub-clauses and he resolved the dispute on that basis.
[6] The UFU submits the Commissioner erred in concluding sub-clauses 17.3 and 17.4 are objectionable terms and in resolving the dispute by removing the abbreviation “UFU” from the sub-clauses. The CFA submits the Commissioner erred in resolving the dispute by removing the abbreviation “UFU” from the sub-clauses.
[7] We turn then to consider relevant law, clause 17 of the OS Agreement and the appeals.
Relevant law
[8] Section 356 of the Fair Work Act 2009 (Cth) (FW Act) provides that a term of a workplace instrument, or an agreement or arrangement, has no effect to the extent it is an objectionable term.
[9] The OS Agreement is a “workplace instrument”, as that term is defined in s.12 of the FW Act.
[10] Section 12 of the FW Act also provides that an:
“objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[11] The word “permit” in the context of s.12 of the FW Act was considered by the Full Federal Court in Australian Industry Group v Fair Work Australia. 8
[12] The AIG case concerned an application for judicial review relating to the approval of an enterprise agreement by the predecessor to the FWC. The Australian Industry Group sought writs of certiorari and mandamus directed to the predecessor to the FWC contending that the original decision approving the enterprise agreement and the decision of an appeal Full Bench to the predecessor of the FWC in respect of the original decision were both affected by jurisdictional error. In the AIG case, the Full Federal Court said:
“Permitting
17 A specific further argument advanced for AIG before the Full Bench was that the Original Decision was erroneous in failing to address the effect of the reference in the s 12(b) definition of objectionable term to ‘permits’ or ‘has the effect of permitting’. AIG contended before the Full Bench that the effect of the reference to permitting was to allow a more hypothetical and broad ranging enquiry as to ADJ’s reason for not engaging a particular contractor. The Full Bench also rejected that submission.
18 The Full Bench concluded that the better construction of the words in this part of the definition was that adopted by a Full Bench of the Commission when considering the construction of s 298Z of the Workplace Relations Act 1996 (Cth) (the WR Act) concerning terms of an agreement which required or permitted certain conduct that would contravene the FW Act. That section contained a definition of ‘permits’ and, like s 12, extended it to also include having the effect of permitting. The Full Bench followed Offıce of Employment Advocate v Construction, Forestry, Mining and Energy Union (2003) 126 IR 468 where another Full Bench held (at [16]) (endnotes omitted):
In our opinion, as used in s 298Z, the word ‘permit’ carries the connotation ‘authorize’ as in part of the definition in the New Shorter Oxford English Dictionary to ‘give permission or opportunity for’. The different connotations that the word may bear are also illustrated by two of its definitions in the Macquarie Dictionary (3rd ed) ‘(5) to grant permission; allow liberty to do something. (6) to afford opportunity or possibility’. It is the first of these two connotations that the word bears in s 298Z. As was decided in Accurate Factory Maintenance, it is not so much what [ADJ] may do but what the clause by its terms requires or permits etc. [ADJ] to do which is determinative. The Full Bench illustrated this distinction with the following example:
The position is analogous to one that might arise if an employer terminated the employment of a union delegate, pursuant to a general provision for termination of employment in a certified agreement, because of the delegate’s union affiliation. Although in such a case the adverse activity would be permitted by the provision in the agreement, it could not be said that the provision required or permitted, etc. conduct in breach of Part XA.
It follows that for the purposes of the definition in s 298Z(5) a provision in an agreement will only ‘permit’ conduct in contravention of Pt XA if it authorises such conduct by its terms, either directly or by necessary implication, and will only have the ‘effect … of permitting’ conduct in contravention of Pt XA if it has the ‘effect’ of authorising such conduct by its terms, either directly or by necessary implication.”
[13] Later, the Full Federal Court in the AIG case said:
“66 AMMA adds to the AIG arguments an argument that the clause ‘permits’ contravention of s 354. The Full Bench did address the ‘permits’ argument. It relied upon two previous Full Bench decisions indicating that the word means ‘authorises’. Taken in context, ‘permits’ should be read in that manner. It thus calls for the positive operation of the clause in question rather than a passive one: Pearce, DC and Geddes, RS Statutory Interpretation in Australia, (7th ed, LexisNexis, 2011) (at [4.23]-[4.24]). The Full Bench was correct in this approach for the reasons stated by it.”
[14] In this matter the relevant provisions of Part 3-1 of the FW Act were said to be item 1(d) of s.342, s.346(a) and (b) and s.347(d)(v).
[15] Sections 346(a) and (b) of the FW Act are as follows:
“346 Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)”.
[16] Section 347(b)(v) of the FW Act is as follows:
“347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:...
(b) does, or does not:...
(v) represent or advance the views, claims or interests of an industrial association”.
[17] Section 342 of the FW Act defines “adverse action” and relevantly provides as follows in respect of item 1 of s.342:
“342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
“Meaning of adverse action | ||
Item | Column 1 | Column 2 |
1 | an employer against an employee | the employer: |
[18] In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3), 9 Katzmann J accepted that the word “discriminate” in the context of item 1(d) of s.342 means “treat less favourably”.10 Her Honour said:
“40 Item 1(d) of the table in s 342(1) does not speak of discriminating against someone (which is the formulation in some anti-discrimination legislation and also in item 2(b) of the table) but discriminating between people. ‘Discriminates’ is not defined so it must have its ordinary meaning which, relevantly, is simply to make a distinction (the first meaning in both the Oxford and the Macquarie Dictionaries). Still, the section is dealing with adverse action. I think it is unlikely — despite the difference in the prepositions used in items 1(d) and 2(a) — that the Parliament had in mind anything other than conduct which discriminated against one employee when compared with other employees. The applicants accepted this in their opening submissions, although they retreated from this position in their closing submissions. I rather think that the different expressions were used for syntactical reasons.
41 Both parties nevertheless accepted that discriminate in this context means ‘treat less favourably’. That necessarily imports the concept of discriminating against the employee who has been treated in this way.”
[19] We concur with her Honour in this regard.
Clause 17 of the OS Agreement
[20] Clause 17 of the OS Agreement is as follows:
“17. CONDITIONS FOR EMPLOYEES PARTICIPATING IN CONSULTATION ETC
17.1. This clause applies to employees participating at any level of consultation referred to in this agreement or participating in any meeting or forum (such as conciliation or hearings) pertaining to the employment relationship, to the relationship between the parties or arising under this agreement.
17.2. Employees will be paid for all such time spent participating as if they were performing work during that time.
17.3. Where the UFU nominees are serving CFA employees the following will apply:
17.3.1. When the employee is on duty arrangements will be made to facilitate his or her attendance at meetings without loss of pay.
17.3.2. When a meeting occurs while the employee is off duty, the employee will be paid for the time involved at overtime rates.
17.4. When a UFU representative who is a CFA employee travels to a meeting on days when the person is not on duty, the following shall occur;
17.4.1. Without inconvenience to the employee, the person shall be provided with a vehicle to enable him / her to travel to the meeting. This shall be by way of CFA car or hire car to travel to and from the meeting. If the above is not provided, the person may by agreement use his / her own vehicle and receive the appropriate vehicle allowance as prescribed in the agreement for each kilometre travelled.
17.4.2. In the case of a person who requires air travel he / she shall be provided with air travel from his / her location to Melbourne and return. Such transport shall be arranged and paid for by the CFA. Travel to and from the airport to the meeting venue shall be provided by way of car hire or taxi as appropriate.
17.4.3. Payment for travel time shall be provided for in accordance with the agreed schedule of distances based on the distance between the persons work location or home location (wherever they are leaving from/returning to) and the location at which the meeting is being held.
17.4.4. Payment for the time spent flying to and from the person's location to Melbourne Airport will be paid for at single time rates. In addition, the agreed schedule of distances allowance is to be paid for travel from Melbourne Airport to the meeting and return as determined by the allowances clause of this agreement.
17.4.5. Employees travelling to and from the same work location are to travel in the same vehicle wherever possible.
17.4.6. The above matters with the exception of payment of airfares and transport for employees requiring air travel and vehicle allowance for the use of private vehicles are to apply when CFA employees who are UFU representatives attend meetings on days when they are not on duty.
17.4.7. If an employee is required to travel more than 100 kilometres or for more than two hours to get to a meeting, the meeting shall not start earlier than 10 a.m.”
[21] Sub-clause 17.1 sets out that the remaining provisions of clause 17 apply when the CFA employees covered by the OS Agreement participate in the named events. Sub-clause 17.2 provides that the CFA employees are to be paid for the time they spend participating as if they were working during that time. However, sub-clauses 17.3 and 17.4 provide some enhanced benefits for the CFA employees who participate in meetings as UFU nominees or UFU representatives.
[22] It is agreed between the parties that the terms “UFU nominees” and “UFU representatives” have the same meaning in the OS Agreement. The terms appear in various sub-clauses of the OS Agreement.
[23] For example, clause 13 of the OS agreement concerns “Consultative Processes” and is, relevantly, as follows:
“13. CONSULTATIVE PROCESSES
13.1. Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.
13.2. CFA / UFU Consultative Committee
The parties agree to establish a CFA/UFU Consultative Committee comprising people involved in the decision making processes of both organisations…
13.3. Enterprise Bargaining Implementation Committee
13.3.1. The parties are committed to effective consultation and communication throughout the CFA. As a demonstration of that commitment, the parties have undertaken to continue to operate an Enterprise Bargaining Implementation Committee (EBIC) to facilitate the implementation of this agreement and ongoing workplace reform.
13.3.2. The Committee comprises equal numbers of management and employee representatives as determined by the respective parties, and decision-making will be by consensus…
13.4. Operation of Consultative Committees
13.4.1. Consultative Committees convened under this agreement will meet at times and localities which cause the least disruption to the operations of the Authority.
13.4.2. Where the UFU nominees are serving Authority employees the following will apply:
(a) When the employee is on duty, arrangements will be made to facilitate his or her attendance at meetings without loss of pay.
(b) When a meeting occurs while the employee is off duty, the employee will be paid for the time involved at overtime rates...
13.4.5. When a UFU representative who is a CFA employee travels to a meeting on days when the person is not on duty, the following shall occur;
(a) The person shall be provided with a vehicle to enable him/her to travel to the meeting. This shall be by way of CFA car or hire car to travel to and from the meeting. As a last resort the person may by agreement use his/her own vehicle and receive the appropriate vehicle allowance as prescribed in the agreement for each kilometre travelled;
(b) In the case of a person who requires air travel he/she shall be provided with air travel from his/her location to Melbourne and return. Such transport shall be arranged and paid for by the CFA. Travel to and from the airport to the meeting venue shall be provided by way of car hire or taxi as appropriate.
(c) Payment for travel time shall be as provided for in this agreement based on the distance between the persons work station and the station at which the meeting is being held or at a station of equivalent distance where the meeting is being held at a venue which is not a current career fire station.
(d) Payment for the time spent flying to and from the person's location to Melbourne Airport will be paid for at single time rates. In addition, the allowance prescribed in this agreement is to be paid for travel from Melbourne Airport to the meeting and return.
(e) Employees travelling to and from the same work location are to travel in the same vehicle wherever possible.
(f) The above matters in 13.4.5 with the exception of payment of airfares and transport for employees requiring air travel and vehicle allowance for the use of private vehicles are to apply when CFA employees who are UFU representatives attend meetings on days when they are not on duty.
(g) UFU will normally limit participation by CFA employees to no more than three on the basis that CFA will not unreasonably withhold agreement to UFU requests for greater numbers of participants. Requests for more than three representatives must be agreed between the parties before the relevant meeting occurs.” [Underlining added]
[24] Further, clause 23 of the OS Agreement concerns “Employee Representation” and relevantly provides as follows:
“23. EMPLOYEE REPRESENTATION
23.1. An employee appointed as an employee representative shall upon written notification by the Branch Secretary of the UFU to the employer, be recognised as the accredited representative of the UFU for the particular area concerned.
23.2. An employee appointed or elected to a position on the Branch Committee of Management of the UFU in accordance with the Rules of the UFU, shall upon written notification by the Branch Secretary of the UFU to the employer, be recognised as an accredited representative of the UFU.
23.3. Accredited representatives of the UFU shall not be threatened with or be dismissed or injured in their employment or have their position altered to their prejudice or be subject to any other act to their prejudice by reason of or for reasons that include the reason of
23.3.1. their status or activities as an accredited representative of the UFU or
23.3.2. their membership of, or participation in the activities of the UFU; or
23.3.3. their participation in or any proposal to participate in, proceedings to which the UFU or a UFU member is a party, or
23.3.4. their giving evidence in or any proposal to give evidence in, proceedings to which the UFU or a UFU member is a party, or
23.3.5. their participation in, or any proposal to participate in, any activity of the UFU where the UFU is seeking better industrial conditions.
This provision shall apply equally to any employee who has made known their intention to be candidates for election as a representative of the UFU and also to any employee who has, in the past, been a representative of the UFU.
23.4. Accredited representatives (who are not officers of the UFU) shall:
23.4.1. subject to the prior approval of the Officer in Charge, or in his or her absence a more senior officer, be allowed the necessary time during working hours to interview any employee, the employer or his or her representative or an officer of the UFU on matters arising under this agreement affecting employees whom he or she represents…
23.4.7. shall not suffer any loss of pay as a result of having spent time during working hours performing activities as an accredited representative pursuant to this clause. That is, any person acting as an accredited representative during working hours will be paid the same they would have been paid had they worked as usual during those hours.
23.5. Access to the workplace for officers of the UFU
23.5.1. Subject to reasonable notice an officer/employee of the UFU may for the purposes of representing employees covered by this agreement for any purpose relating to the application of this agreement or entitlements that arise under this agreement (but not including any purpose referred to in section 481 or 484 of the FW Act):
(a) at any time during working hours enter the CFA’s prescribed premises, registered office or workplace where the CFA’s employees are engaged (‘Work place’ for this clause here includes any place where employees are performing work or are attending pursuant to a direction of the CFA or are attending in their capacity as employees of the CFA);
(b) at any time during working hours, inspect or view any work, material, machinery, appliance, document (including time and wages records), qualification of employees on the premises mentioned above; and
(c) interview, on the premises referred to above , an employee who is a member, or is eligible to be a member, of the UFU...
23.6. In addition to any rights conferred by the above, the following also applies to Shop Stewards.
23.6.1. In this clause Shop Steward means an employee representative selected by employees covered by this agreement and appointed by the Union (as advised by the Secretary in writing) as the accredited representative of the Union in the particular area concerned.
23.6.2. In order for the Shop Steward to perform the functions required by Step 1 and Step 2 in clause 15.2, and to assist in the implementation of this agreement and to assist in preventing and resolving disputes about matters pertaining to the employment relationship (but not including any purpose referred to in section 481 or 484 of the FW Act), the Shop Steward shall be permitted, subject to the prior approval of the employer:
(a) The necessary time during working hours to interview the employer or his or her representative on matters affecting employees whom he or she represents.
(b) A reasonable period of time during working hours to interview officers of the union on legitimate union business, at a place designated by the employer.” [Underlining added]
[25] In addition, clause 99 of the OS Agreement concerns “Terms and Conditions of Employment for Instructors”. Sub-clause 99.7 concerns “Recognition of Prior Learning / Recognition of Current Competency” and relevantly provides as follows:
“99.7. Recognition of Prior Learning / Recognition of Current Competency
99.7.1. The parties agree to convene an independent RPL/RCC Panel to be specifically utilised for the purposes of validating competency and experience of individuals either;
(a) Seeking to apply for an Instructors position; or
(b) For currently appointed Instructors to validate their capability to deliver specific training modules outside of their appointed stream (i.e. Wildfire or Structural).
99.7.2. The parties agree that membership of this panel will be:
(a) Chairperson: a member of an Academic Institution conversant with RPL/RCC principles and competency-based training. This person will be a suitably qualified candidate nominated following agreement by the parties.
(b) A CFA Management representative conversant with RPL/RCC principles, competency based training, the Public Safety Training Package and their application within CFA;
(c) A UFU nominee conversant with RPL/RCC principles, competency based training, the Public Safety Training Package and their application within CFA.” [Underlining added]
[26] Schedule 3 of the OS Agreement is an Occupational Health and Safety Policy and Processes Agreement (OH&S Agreement) between the UFU and the CFA. Sub-clause 2.1 of Schedule 3 concerns the CFA’s responsibilities under the OH&S Agreement and relevantly provides as follows:
“2.1 EMPLOYER RESPONSIBILITIES
In implementing the OH&S agreement CFA will take all reasonable practicable steps to:…
2. 1.13 Ensure that appropriate consultation takes place with UFU representatives on OH&S issues relating to matters including but not limited to protective clothing and equipment, vehicle design, station design and building.” [Underlining added]
[27] Sub-clause 4.4 of Schedule 3 concerns the election of health and safety representatives under the OH&S Agreement and relevantly provides as follows:
“4.4 ELECTION OF HEALTH AND SAFETY REPRESENTATIVES
The following applies to the election of Health and Safety representatives:
(a) members of a Designated Work Group may conduct elections within their work group (assistance can be sought from CFA and Union);
(b) there is to be only one elected Health and Safety Representative per Designated Work Group;
(c) elections will be held within 28 days of a representative’s cessation of office;
(d) cessation of office for an elected representative must be in accordance with the Occupational Health and Safety Act 2004, section 55;
(e) all employees in a Designated Work Group are entitled to vote; and
(f) where an HSR is a UFU member the elections shall take place every three years.” [Underlining added]
Consideration of the appeals
[28] Before us it was submitted by both the UFU and CFA that if we determined whether sub-clauses 17.3 and 17.4 of the OS Agreement are “objectionable terms” that would dispose of the appeals and determine the dispute. 11
[29] In our view, sub-clauses 17.3 and 17.4 of the OS Agreement are not objectionable terms within the meaning of the FW Act. We have come to this view for the following reasons.
[30] In their terms sub-clauses 17.3 and 17.4 do not require, have the effect of requiring, or purport to require or have the effect of requiring, or permit or authorise, have the effect of permitting or authorising, or purport to permit or authorise or have the effect of permitting or authorising (hereinafter referred to as “require or permit, etc”) a contravention of Part 3-1 of the FW Act.
[31] Sub-clauses 17.3 and 17.4 require or permit, etc a contravention of Part 3-1 of the FW Act if they require or permit, etc the CFA to take “adverse action” within the meaning of the FW Act against a CFA employee because of prescribed reasons. However, sub-clauses 17.3 and 17.4 require the CFA to provide enhanced benefits to a CFA employee who is a UFU nominee or a UFU representative. The provision of enhanced benefits is not adverse action. By providing enhanced benefits to a CFA employee who is a UFU nominee or a UFU representative, the CFA does not treat less favourably such a CFA employee as against other CFA employees or discriminate between such a CFA employee and other CFA employees within the meaning of item 1(d) of s.342 of the FW Act.
[32] Further, sub-clauses 17.3 and 17.4 do not, by their terms, either directly or by necessary implication, require or permit, etc the CFA to not apply the provisions in sub-clauses 17.3 and 17.4 to a CFA employee who is not a UFU nominee or a UFU representative or to otherwise take adverse action against a CFA employee who is not a UFU nominee or a UFU representative.
[33] In United Firefighters Union of Australia v Country Fire Authority, 12 Murphy J considered whether clauses 13, 14 and 16 of the OS Agreement, which create a consultation framework between the CFA and its employees that includes representation of those employees by the UFU, are objectionable or unlawful terms. His Honour said:
“160. The consultation regime that the CFA attacks is effectively the same as the consultation regime in the Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2010 (‘the 2010 MFB Agreement’)...
161. In Klein v Metropolitan Fire and Emergency Services Board(2012) 208 FCR 178 (‘Klein’) Gordon J considered the consultation regime in the 2010 MFB Agreement. The applicant, an MFB employee, argued that the consultation clauses precluded the inclusion of non-UFU members in the consultation process and hence infringed s 346 of the FW Act. Gordon J said, in explaining that the consultation provisions were not objectionable or otherwise unlawful, at [222]-[223]:...
...the clauses stipulate that the UFU can select members of the Consultative Committee. The clauses do not require or permit discrimination between UFU members and non-UFU members...
162. The CFA contends that Klein is wrongly decided. I do not agree and I respectfully adopt her Honour’s approach...
165. ... Gordon J held the clauses did not require nor authorise the discriminatory selection of UFU members over non-UFU members. Again, I respectfully agree...
166. In my view there is nothing in cl 13.3 that authorises the discriminatory selection of UFU members over non-UFU members on the basis of their membership. Any such discrimination would be actionable under the general protection provisions of the FW Act and unlawful in my view. I do not consider that a clause that creates a power to appoint an employee to a position is invalid simply because one party is capable of using that power in a discriminatory and illegal manner. I do not read the powers in the consultation regime as authorising what is otherwise illegal.”
[34] We think the principle set out in the abovementioned cases applies in respect of the matter before us.
[35] While it is not strictly necessary for us to do so in light of our reasoning above, we add that we do not accept that the term “CFA employees” in sub-clauses 17.3 or 17.4 of the OS Agreement must be taken as meaning or “invariably” 13 meaning union members. The terms of sub-clauses 17.3 and 17.4 refer to “CFA employees” not “union members” or “UFU members” or the like, both as a matter of express text and as a matter of construction. Various clauses in the OS Agreement do specifically refer to “UFU member” or the like. For example, clauses 20.4.5., 20.4.6., 22.1.3., 22.1.4., 23.3.3., 23.3.4. and 23.5.1.(c) of the OS Agreement and clause 4.4(f) of Schedule 3 to the OS Agreement specifically refer to “UFU member” or “member ... of the UFU”.
Conclusion
[36] We are satisfied it is in the public interest for us to grant permission to appeal in respect of both appeals. We do so. The appeals raise novel and significant issues about dealing with objectionable terms, or allegedly objectionable terms, in an enterprise agreement in the context of the Commission exercising arbitration powers pursuant to a dispute settlement clause in the enterprise agreement. Moreover, we are satisfied the Commissioner exceeded his jurisdiction in resolving the dispute by removing the abbreviation “UFU” from sub-clauses 17.3 and 17.4. We are so satisfied having regard to the provisions of either s.739(5) of the FW Act or the provisions of the FW Act establishing requirements in respect of the variation of an enterprise agreement. Those considerations provide other sound bases for us granting permission to appeal in respect of both appeals.
[37] For the reasons given, we are satisfied sub-clauses 17.3 and 17.4 of the OS Agreement are not objectionable terms within the meaning of the FW Act. We therefore quash the decision of Commissioner Wilson in matter C2013/4118. Further, we determine to resolve the dispute on the basis that sub-clauses 17.3 and 17.4 of the OS Agreement are not objectionable terms.
SENIOR DEPUTY PRESIDENT
DECISION OF COMMISSIONER BLAIR
[38] I have read the decision of Senior Deputy President Acton and Deputy President Hamilton and concur with their reasons and outcome.
[39] I however believe that clause 17 — “Conditions for employees participating in consultation etc” should be read as a whole.
[40] In doing so, clause 17.2, which states “Employees will be paid for all such time spent participating as if they were performing work during that time”, in my view, establishes a class of employee that is to be treated less favourably than a class of employee covered by clauses 17.3 and 17.4, because these two clauses confer superior benefits to those employees who are United Firefighters' Union (UFU) nominees as opposed to those employees covered by clause 17.2, who are not UFU nominees.
[41] Section 342 of the Fair Work Act 2009 (the Act) reads, inter alia:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item Column 1 Column 2
Adverse action is taken by ... if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
[42] It is clear in my view that clause 17.2 falls within that part of s.342 which states:
Adverse action is taken by... an employer against an employee if... the employer:
(d) discriminates between the employee and other employees of the employer.
[43] I would therefore determine that clause 17.2 is an objectionable term for it falls foul of item 1 of s.342(1) of the Act.
Appearances:
R. Kenzie of Queens Counsel with T Dixon of Counsel for the United Firefighters’ Union of Australia.
J. Bourke of Senior Counsel with T. Jacobs of Counsel for the Country Fire Authority.
Hearing details:
2013.
Melbourne and Sydney (video hearing):
December, 11.
Final written submissions:
United Firefighters’ Union of Australia, 16 December 2013.
Country Fire Authority, 20 December 2013.
1 Country Fire Authority v United Firefighters’ Union of Australia, [2013] FWC 7509.
2 AE881690.
3 Re Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010, [2010] FWAA 8164.
4 Re Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 at cl. 15.
5 Ibid at cl. 15.2.6.
6 Ibid at cl. 15.7.
7 Country Fire Authority v United Firefighters’ Union of Australia, [2013] FWC 7509 at [35].
8 (2012) 228 IR 35.
9 [2012] FCA 697.
10 Ibid at [41].
11 Transcript in C2013/6373 and C2013/6411 at PN138-150 and PN226-227.
12 [2014] FCA 17, 31 January 2014.
13 Transcript in C2013/6373 and C2013/6411 at PN239.
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