United Firefighters' Union of Australia v Fire Rescue Victoria

[2023] FWC 512

[2023] FWC 512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v

Fire Rescue Victoria

(C2022/5683)

COMMISSIONER WILSON MELBOURNE, 7 MARCH 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. These Reasons for Decision relate to the decision made by me on Monday 27 February 2023 to grant a limited right to be heard in this matter to the Victorian Minister for Emergency Services.

1. The application presently before the Commission was made by the United Firefighters Union of Australia (UFU) and concerns its claim for a new allowance payable to operational firefighters engaged by Fire Rescue Victoria (FRV). The application was made pursuant to s.739 of the Fair Work Act 2009 and involves an alleged dispute arising under the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (2020 Agreement).

1. The allowance sought by the UFU, referred to by me as the Efficiencies Allowance Application, is based on savings or efficiencies achieved in relation to the creation of the FRV on 1 July 2019 following the amalgamation of the former Metropolitan Fire and Emergency Services Board and the professional firefighting contingent of the Country Fire Authority.[1] The FRV submits that the Commission should not make the new allowance sought.[2]

1. The matter has a lengthy history before the Commission, mainly in conciliation, with the present application having been made on 15 August 2022.  The UFU though, in opposing the Minister being granted a right to be heard in this matter, points to a longer history for the subject matter, with an earlier application to the Commission made in November 2021 which sought “assistance over the alleged failure of FRV to ''provide costings of the monetary value for efficiencies arising from FRV's efficiency clauses; and formalise the bargaining process by obtaining the Victorian Government's approval" following the service of the UFU's Log of Claims on 30 November 2020 in relation to a new  Operational Staff Agreement”.[3]

1. More recently, and given agreement was unable to be reached between the parties, the Efficiencies Allowance Application was programmed for arbitration. Outlines of Submission, witness statements, and relevant documents have been filed by both the UFU and FRV in response to filing directions originally issued in early December 2022. Those directions identified the matter would be heard over a week from Monday 27 February to Friday 3 March 2023.

1. Last Friday, 24 February 2023, at about 1:38 PM the Victorian Minister for Emergency services, Jaclyn Symes MP, gave notice to the Commission and the UFU and FRV that she sought to intervene in the proceedings. The application was put forward on the basis of the provisions of s.590 of the Act dealing with the powers of the Commission to inform itself. The Minister’s application was heard by me on Monday, 27 February 2023. Whereas the UFU opposed the application, the FRV submitted that it did not object to the Minister being given a right to be heard.

1. Mr Tom Dixon of Counsel appeared for the UFU; Mr Malcolm Harding SC of Counsel appeared for the FRV; and Mr Chris O’Grady KC with Ms Rebecca Davern of Counsel appeared for the Minister.  All parties were granted permission by me to be represented by lawyers pursuant to the provisions of s.596(2)(a), after taking into consideration that legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

1. At the conclusion of the hearing, I advised the parties that I would grant a limited right to the Minister to be heard, with my reasons for decision to be published in due course. The advice given by me to the parties was that I would grant appearance of the Minister for Emergency Services only in relation to the matter of the Commission’s jurisdiction to grant the application made by the UFU. The limited nature of the grant of appearance to the Minister would mean there is no right for evidence to be led, or to be involved in the taking of evidence from witnesses called before the Commission in relation to the merits of the application.

1. Before dealing with the respective submissions of each of the UFU, the FRV and the Minister it is relevant to identify a number of matters of context for the Efficiencies Allowance Application as well as another matter before the Commission. In particular,

• The UFU’s Efficiencies Allowance Application identifies savings or efficiencies in excess of $127m and seeks gainsharing of at least some of this amount;

• The FRV’s position in respect of the Efficiencies Allowance application is that “the appropriate forum to give effect to employees’ legitimate aspiration to share in the benefits arising from actual productivity gains is enterprise bargaining for the replacement agreement” and that accordingly the Commission “should not make the new allowance sought”.[4] This position of the FRV is not the first to be advanced to the Commission with the current submission having been provided to the Commission on Tuesday, 21 February 2023.Earlier submissions were made by the FRV on 13 February 2023.

• Enterprise bargaining between the UFU and FRV is presently being undertaken and is the subject of separate conciliation proceedings in the Commission.[5] At the last conciliation conference in that matter, held on Friday 24 February 2023, the representative of Industrial Relations Victoria advised that an updating of the Victorian Government’s Wages Policy, which applies to the FRV, was at least three to four weeks away, with an offer in respect of enterprise bargaining to be made some time after conclusion of the policy. Due to the absence of policy guidance from central Government on the subject of bargaining the FRV is yet to make a wages proposal to the UFU or other employee bargaining representatives.

1. After noting that s.590 of the Act provides the Commission with the broad discretion to inform itself of any matter it considers appropriate the Minister submitted the application should be resolved with regard to a number of matters,

“8.  … In determining whether to exercise its discretion, the Commission will have regard to:

- the submissions of the parties;

- the particular circumstances of the case

- the benefit of the intervener to the Commission;

- whether the party has a sufficient interest beyond that of an ordinary person;

- whether procedural fairness requires the non-party to be heard;

- the nature of the issues raised by the intervening party;

- any specific knowledge as to the Applicant's workplace, or actual knowledge of the bargaining or making of the agreement; and

- any history of involvement in the Applicant's enterprise or workplace.”[6] (footnotes omitted)

1. The Minister submitted that the Commission ought to exercise its discretion in relation to intervention for five principal reasons, whether individually or combined,

“(a) the role of the Minister in respect of the operations of FRV pursuant to the FRV Act and the interest she has in the matter by virtue of her role as responsible Minister; and

(b) the nature of the issues raised by the Minister:

(i) the issue sought to be raised by the Minister relates to the Commission's jurisdiction, in circumstances where parties have an obligation to raise with the Commission matters of jurisdiction, yet submissions as to these matters that were filed by FRV were withdrawn by it;

(ii) the Minister is the Minister responsible for FRV which is a party to a proceeding pursuant to s 240 of the FW Act, that has substantial overlap with this dispute. Government is an observer in that proceeding with the permission of the Commission and provides parameters and constraints on FRV's ability to reach agreement in the enterprise bargaining proceedings;

(c) section 590 of the FW Act, confers upon the Commission a broad discretion to inform itself in relation to any matter in such manner as it considers appropriate;

(d) the Minister has been given leave to participate in and make submissions in related disputes between FRV and the UFU in respect of the Registration Board Dispute and related application pursuant to s 603 of the FW Act; and

(e) the orders sought by the UFU in this dispute could have significant financial and operational impacts on FRV, a Government agency for which the Minister is responsible and for which impacts it is not presently funded.”[7]

1. Relevant to determination of the substantive part of the Efficiencies Allowance Application, the Minister submitted that the Commission should not exercise its discretion to arbitrate a dispute pursuant to s.739 of the Act where the dispute is an abuse of process,

“… A proceeding in the Commission may be considered an abuse of process in a number of circumstances including (relevantly):

(a) if a party brings a claim that is clearly without merit or has no reasonable prospect of success, it may be considered an abuse of process. Similarly, if a party brings a claim solely to harass or annoy the other party;

(b) if it is for an improper purpose; or

(c) if a party brings a claim for an improper motive (such as to gain an unfair advantage in unrelated proceedings).”[8]

1. The Minister’s submission in respect of the potential abuse of process connects with the belief that the Efficiencies Allowance application has been lodged because the UFU “has not obtained the outcome it wishes to achieve in bargaining and/or in order to obtain an unfair advantage in the bargaining proceedings”.  The Minister further argues that since determination of the Efficiencies Allowance Application has a capacity to undermine the Act’s emphasis on enterprise bargaining such may well be reason why the Commission refuses to make the order sought by the union even if the Commission was not satisfied that the proceeding itself was an abuse of process.[9]

1. As set out above the Minister provides five reasons as to why the Commission should exercise its discretion to permit her to be heard on these matters.

1. No substantive submissions were put forward by the Minister in respect of the first of those matters which deals with the fact that she is the Victorian Government Minister responsible for the FRV.

1. The second of the matters put forward by the Minister is in two parts; the first relating to matters of jurisdiction for the Commission to determine the Efficiencies Allowance Application and the second connecting with what is argued to be a “substantial overlap” between the matters in dispute in the application and those being dealt with in enterprise bargaining.

1. In relation to matters of jurisdiction, in the submissions referred to above the Minister pointedly refers to the Commission’s jurisdiction to determine the Efficiencies Allowance Application, putting forward that the Minister’s interest relates to the Commission’s jurisdiction “in circumstances where parties have an obligation to raise with the Commission matters of jurisdiction, yet submissions as to these matters that were filed by FRV were withdrawn by it”.[10]  This submission relates to the differences in content between the original FRV submissions and those filed in the Commission on 21 February 2023. Whereas the original FRV submissions explicitly stated that the union’s claim is not within jurisdiction the replacement submissions make no such assertion.[11] The Minister argued in relation to intervention that she only became aware of the change in tenor of the FRV submissions on 23 February 2023 and then sought to be heard on the subject through the application made midway through Friday 24 February 2023.

1. In relation to matters of enterprise bargaining the Minister did not make significant submissions other than to contend that the Efficiencies Allowance Application had been lodged by the UFU since it “has not obtained the outcome it wishes to achieve in bargaining and/or in order to obtain an unfair advantage in the bargaining proceedings”[12] and that the matters the subject of this application would be better dealt with in the course of enterprise bargaining.

1. The Minister did not make significant submissions in respect of her third to fifth reasons set out above. The Minister also has not provided substantial material in relation to the contention made that the Efficiencies Allowance Application is an abuse of process.

1. The Minister’s most significant submissions were in relation to the contention that the Commission’s jurisdiction for the making of the Efficiencies Allowance is either not enlivened or would prevent the grant of relief sought by the UFU.

1. In summary, and in support of my decision to grant the Minister the right to be heard on matters of jurisdiction, I note the following from the submissions made,

• The Commission’s arbitral powers must be exercised in accordance with the terms of the 2020 Agreement with s.739 prohibiting the Commission from exercising powers limited by the Agreement’s dispute resolution term with such limitation being a mandatory one going to the jurisdiction of the Commission. The Commission is constrained by s.739 (5) from making an order which may not be consistent with the Agreement.[13]

• The Commission must satisfy itself that it has jurisdiction to proceed to arbitrate a dispute and,

“Notwithstanding the withdrawal by FRV of the FRV Jurisdictional Submissions, the Commission, and the UFU are on notice of the contention that the Commission does not have jurisdiction to the determine the dispute. The Commission must determine the question of jurisdiction and satisfy itself that it has jurisdiction to do so, before arbitration of the dispute”.[14]

This submission is made with reference to In the Matter of an Application by the Chief Commissioner of Police (Vic) in which Kirby J held there was an obligation to consider jurisdiction, notwithstanding the parties do not argue a want of jurisdiction, or even assert there is jurisdiction.[15]

• The jurisdictional issue flows from the terms of clause 85.3 of the Agreement’s Division A and clause 92.3 of Division B of the 2020 Agreement each of which state the following (with underlining added by the Minister),

“In accordance with existing practice, the parties agree that any claim for additional allowance, new allowance, or increase to an existing allowance, will be referred to the FWC for determination if the parties are unable to agree. The parties reserve their rights to put their respective positions (to avoid doubt, the parties agree that this clause applies despite the no extra claims clause).”[16]

The Minister noted that the phrase “in accordance with existing practice” was new to the 2020 Agreement.[17]

• Whereas the UFU contends that the clauses provide a jurisdictional base for the Commission to proceed, the Minister contends that a plain reading of the terms does not give the contended jurisdiction. The terms are concerned with allowances, not with wage rises or other payments made to employees. Further “the ability to refer an increase to, or introduction of, and allowance to the Commission for determination, must be in accordance with existing practice”;[18] and

“18. The Minister contends that the Application fails to invoke the limited arbitral authority that clauses 85.3 and 92.3 of the FRV Interim Agreement confers on the Commission. The Application does not seek that the Commission arbitrate to provide for a new "allowance", either in the ordinary or industrial meaning of that word, or in the sense in which it is used elsewhere in the FRV Interim Agreement. In addition. to use these clauses to make a claim of this type is not "in accordance with existing practice”.

19. For the Commission to have jurisdiction, the Commission must be satisfied, upon a proper construction of the FRV Interim Agreement, that the claim is one ' in accordance with existing practice' and is one for an 'allowance'. This is an objective question.”[19]

• Consideration of the two terms in conjunction with consideration of the ordinary industrial meaning of “allowance” would lead to a finding that the clauses “do not give the Commission power to create an entirely new kind of employee benefit and label it an allowance”;[20]

• Consideration of the phrase “in accordance with existing practice” would lead to a conclusion that there has only been one instance where the arbitration power in respect of allowances has been exercised in a dispute between these parties, dealing with the subject of income protection insurance, whereas in this matter “what is sought is analogous to a generalised wage increase” with there being no precedent for an allowance of that type to be submitted for determination.[21]

1. The Minister submitted in the alternative, and if the Commission determines it has jurisdiction, that the Efficiencies Allowance Application should be adjourned until enterprise bargaining has concluded as that was the preferred course for a claim of this type.[22]

1. The FRV’s position about these matters was largely mute. It did not object to the Minister’s intervention but submitted that notwithstanding whether its replacement submissions specifically dealt with the jurisdictional base for the application, the Commission needed to be satisfied it had jurisdiction to proceed.

1. The UFU objected to the Minister’s application to be heard on several grounds,

1. The lengthy history of the Efficiencies Allowance Application during which no objection was taken by the FRV to the Commission’s jurisdiction;

2. A response from the FRV in the course of conciliation to the effect that it accepted the allowance could be made. This submission was objected by Counsel for the FRV in the course of the hearing, with the objection being that the UFU appeared to be relying on a without prejudice communication. I accept that the communication was without prejudice, or at least one given for the furtherance of conciliation, and so place no reliance on the UFU’s submission about the FRV’s past position for the purposes of this decision.

3. The FRV’s replacement submissions backed away from the jurisdictional objection despite the original submissions having advanced the subject;

4. Had the union been on notice about the jurisdictional objection UFU could have submitted evidence rebutting the jurisdictional objection;

5. The jurisdictional objection is at least partly answered by the fact that predecessors of the clauses in question had been used to create new allowances.  The creation of those new allowances is consistent with the reference in those terms to an “existing practice”;

6. A grant of appearance to the Minister would cause real prejudice to the UFU in its members and “The only ways to possibly cure that prejudice would be to adjourn the matter, or alternatively allow it to proceed and determine the jurisdictional point after a full hearing on the merits”;[23]

7. An adjournment of the proceedings for the reasons advanced by the Minister as an alternative submission, would itself cause prejudice for the UFU and its members who have cooperated with introduction of the efficiencies; are experiencing high cost-of-living pressures; and have not had “a pay rise for over two years at a time when real wages have gone backwards”.[24]  Further, the union has been prejudiced with the costs incurred of preparing for a five day hearing which would not take place if adjourned.

8. A grant of appearance to the Minister could be contrary to the requirements for procedural fairness and natural justice,

“32. Notwithstanding its wide discretion in matters of procedure, the Commission is bound to observe the rules of natural justice. For the reasons advanced above:

(a) the granting of the late application for intervention would involve a denial of natural justice. The UFU's ability to answer the Minister's foreshadowed challenge to jurisdiction has been undermined by the Minister's dilatory conduct; and moreover

(b) any attempt to cure that prejudice would result in an irreparable element of unfair prejudice in unnecessarily delaying proceedings and the incurring very substantial costs.”[25]

1. Section 590 is in these terms,

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

1. It is well accepted that s.590 is in discretionary terms. With respect to s.590(1) which allows the discretion to be exercised “except as provided by this Act” no Counsel took me to any relevant exception.

1. The Minister’s request to be heard is for the five reasons set out above. Save for three items, those matters generally are not a sufficient basis for me to be satisfied the Minister’s appearance would assist me in informing myself about the matters requiring determination. The items I consider do not cause me to grant intervention are,

• Items (a) and (e) which advocate that the Minister ought to be heard as the Victorian Government Minister responsible for the FRV and because of the likely high cost to Government from a successful Efficiencies Allowance claim. Perusal of the FRV’s submissions and written witness statements on the merits of the matter do not leave me with the view there will be insufficient or inaccurate information before the Commission, with there then being a desirability or necessity to inform myself from a party other than the UFU or FRV.

• Item (b)(ii) argues the overlap these proceedings with matters being discussed and enterprise bargaining. I agree with and have expressed the desirability of the progression of the claim through enterprise bargaining, a subject which is addressed further in this decision. While I am concerned that no wages offer, including one dealing with the subject of the Efficiencies Allowance, has yet been put forward by the FRV to the UFU and other bargaining representatives, I do not consider permitting the Minister to be heard for this reason will of itself particularly advance that cause.

1. Three items cause me to lean toward permitting the Minister to be heard,

• Item (b)(i) deals with the question of the Commission’s jurisdiction;

• Item (c) while apt does nothing more than acknowledge the Commission’s discretion to inform itself in relation to any matter in such manner as it considers appropriate;

• Item (d) submits that having been granted intervention in the recent firefighter registration board case the Minister should be granted right heard in this matter. This is a reference to my decision in the matter of United Firefighters' Union of Australia v Fire Rescue Victoria[2022] FWC 2708 at [3], and [2022] FWC 3170 in which the Minister was granted intervention.

The matters requiring decision in the earlier case are distinguishable from those requiring consideration here and dealt with concerns held by the Minister that the relief being sought by the UFU in the earlier case impermissibly fetters the FRV in the discharge of its powers and functions.[26] Resolution of the matter required consideration of the interaction of the Fair Work Act 2009 (Cth) with the Fire Rescue Act 1958 (Vic).

However, despite the technical distinction between the two cases there is similarity between them inasmuch as the FRV position was muted and not rising to the level of a contradictor on the subjects about which the Minister was concerned. The risk of acquiescence by a Respondent to asserted jurisdiction in an inevitably controversial subject matter is that absent a contradictor the Commission could easily be led to error.  That possibility could be alleviated through a grant of intervention.

1. The proposition in item (b)(i) relating to the Commission's jurisdiction “in circumstances where parties have an obligation to raise with the Commission matters of jurisdiction, yet submissions as to these matters that were filed by FRV were withdrawn by it”[27] is a mandatory one.  Despite the UFU asserting the Commission is vested with jurisdiction and the FRV making no submission on the subject, conformity with the reasoning of Kirby J within In the Matter of an Application by the Chief Commissioner of Police (Vic) leaves no choice but to determine the matter of jurisdiction;

“Although neither the Chief Commissioner nor the Age argued a want of jurisdiction – indeed each asserted that jurisdiction existed – it is the first rule of every court, where a real question is raised as to its jurisdiction and powers (or as to the exercise thereof), that the court must satisfy itself that the jurisdiction exists and that the powers may be exercised.”[28]

1. I note the UFU’s submissions that its members may be prejudiced if the Minister is heard since that will introduce delay into finalisation of the matter, and that it will have costs thrown away as a result. It would also have been preferable for the FRV to be properly heard on matters of jurisdiction. That the FRV has chosen to not make cogent submissions on the subject of jurisdiction is regrettable, unhelpful and inefficient. Without such material as the Minister may provide on jurisdiction there would be no contradictor and thereby no assistance from any party on the “first rule” of me being satisfied that the asserted jurisdiction exists and that the powers may be exercised.

1. While such enables me to be satisfied I should exercise my discretion to allow the Minister to be heard on the subject of jurisdiction, it does not follow that intervention should be permitted to extend further. The application before me is made pursuant to s.739 of the Act which in summary permits the resolution of disputes arising under enterprise agreements in accordance with the terms of the agreement. The 2020 Agreement is expressed as applying to, covering and binding the FRV and any successor; the UFU; and employees of the FRV. No part of the 2020 Agreement is expressed as being applying to, covering, and binding the Minister. Although I accept that granting the application in favour of the UFU may have significant cost consequences for the FRV, those are matters about which the FRV, represented by Senior Counsel and other lawyers, is capable of informing the Commission.

1. The FRV submissions plainly contest much of the UFU’s merits reasoning; it argues bargaining would be the appropriate forum for discussion of gainsharing from the asserted efficiencies; that some of the assumptions made about costings were point-in-time analyses without strong relevance in these proceedings; and that some of the asserted savings or at least the asserted quantum of savings are yet to be realised. The FRV’s submissions and witness statements on these matters (yet to be heard) appear likely to be able to firmly address the non-jurisdictional matters put forward by the Minister and in particular that the claim for an allowance would be better addressed through bargaining and that the cost implication of the claim is significant. As a result I do not require assistance on matters of merit from a non-party to the 2020 Agreement

1. For these reasons I grant the Minister’s request to be heard with it being limited to the matter of the Commission’s jurisdiction only.

1. The Minister’s submissions went further than directly providing submissions associated with reasons that would support a right of appearance and, properly enough, detailed the submissions that would be made should intervention be granted.  The submissions set forth in some detail the contentions that the Efficiencies Allowance Application was not within the Commission’s jurisdiction to determine and if it was the terms of the 2020 Agreement would not allow a finding in the UFU’s favour. I do not determine those matters at this time.

1. The Minister submissions put forward as an alternative submission to the findings invited about jurisdiction and the 2020 Agreement’s construction that these proceedings should be adjourned indefinitely for several reasons including that the claim would be better resolved through bargaining.

1. In broad construct I agree with the general proposition that the subject matter of this application might be better dealt within bargaining and have expressed that view firmly not only to the parties and representatives in this matter, but to those involved in the bargaining matter also being dealt with by me. The following was communicated by me in a Statement issued to the parties on 3 February 2023;

“[5] Six conciliation conferences have been convened by me to date on 14 November, 7 and 15 December 2022 and 12, 20 and 31 January 2023. A representative from Industrial Relations Victoria, the Victorian Government agency responsible for management of industrial relations with the State’s employees, has attended four of those conferences.

[6] It is clear to me bargaining will be unlikely to meaningfully progress without the capacity of FRV to put forward a detailed monetary proposal for consideration of the UFU and other employee bargaining representatives. What is ultimately put forward by the FRV for consideration of the UFU and employees is likely to be a function of the Victorian Government wages policy which is presently under review following its re-election in November 2022. I note that the parties are currently bargaining under the 2019 wages policy.

[7] While the UFU has put forward with some clarity the monetary claim it seeks the FRV consider and agree to the FRV has been unable to respond with a firm offer for consideration by employees.

[8] The nature of the claims being made by the UFU are such that any response by the FRV would need to be with reference to the existing Wage Policy’s “Pillar 3” permitting “Additional changes to allowances and other conditions (not general wages)” but conditioned with Government agreement “that the changes will address key operational or strategic priorities for the agency, and/or one or more of the Public Sector Priorities”. I accept that until an updated or amended Victorian Government Wages Policy is released there is to be no presumption either that the “Pillar 3” construct will continue or will continue unaltered.

…

[13] The nature of these proceedings, though, is such that an early resolution to bargaining will require a firm monetary offer to be put by the FRV to the UFU in the near future. Of course, such can only be done in the event the FRV is authorised by the Victorian Government to do so.

…

[17] I also encourage the FRV and those that it is required to consult with in order to form its instructions to have a firm wages proposal to provide to the UFU and the Commission on or before the date of the next conciliation conference.”[29]

1. Against the proposition that the Efficiencies Allowance Application should be adjourned indefinitely if it is not dismissed for reason of jurisdiction so as to allow bargaining to proceed it must be noted that no monetary offer dealing either with wages or the detail of an Efficiencies Allowance, however described, has been made by the FRV to the UFU. As recently as Friday 24 February 2023 the Victorian Government representative in the bargaining conciliation advised that amendments to the Victorian Government wages policy were about three to four weeks away with an offer in bargaining some further time after that.

1. This inertia is unhelpful and any further delays in presenting an employer offer to the UFU and employee bargaining representatives would likely not be consistent with the Minister’s submissions that the subject matter of the Efficiencies Allowance would better be dealt with through bargaining.

2. If it were, a wages offer would be put forward.

3. If the position that bargaining is to be preferred over determination of the Efficiencies Allowance Application through arbitration is to be seriously maintained it is incumbent on the Minister to ensure the wages proposal encompassing the matters within the Efficiencies Allowance application is put to the UFU in bargaining at the earliest opportunity.

1. Following advising the parties of my decision to permit the Minister to be heard on a limited basis, private discussions for the purposes of conciliation were held with the parties both immediately following the formal proceedings on Monday 27 February 2023 and on Tuesday 28 February 2023.  Opinions consistent with those expressed by me in paragraphs [36] to [40] above were stated in the course of those discussions.  This matter is to be relisted for the purposes of report back from the parties on Wednesday 8 March 2023 at 11 AM. The bargaining matter is listed again for conciliation on Friday, 10 March 2023 at 2 PM.

COMMISSIONER

Appearances:

Mr T Dixon for the Applicant

Mr M Harding SC for the Respondent

Mr C O’Grady KC intervening for the Minister

Hearing details:

2023.
Melbourne;
27 February 2023.

Printed by authority of the Commonwealth Government Printer

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[1] UFU’s Outline of Submissions, [2].

[2] FRV’s Replacement Outline of Submissions, [60].

[3] Exhibit UFU1, UFU'S Outline of Submissions Opposing Minister's Intervention, [1].

[4] FRV’s Replacement Outline of Submissions, [5], [60].

[5] Matter Number B2022/1676, Application by Fire Rescue Victoria, commenced 4 November 2022.

[6] Exhibit Minister 1, [8].

[7] Ibid, [6].

[8] Ibid, [11.]

[9] Ibid, [12]

[10] Ibid, [9].

[11] Respondent’s Replacement Outline of Submissions, [60].

[12] Exhibit Minister 1, [12].

[13] Ibid, [13].

[14] Ibid, [14].

[15] [2005] HCA 18; 79 ALJR 881, [68].

[16] Exhibit Minister 1, [15].

[17] Ibid, [39]; Transcript, PN [61].

[18] Ibid, [17].

[19] Ibid, making reference to Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309 at [240] (Callinan J).

[20] Ibid, [25].

[21] Ibid, [41] – [42].

[22] Ibid, [44] – [47].

[23] Exhibit UFU 1, [27].

[24] Ibid, [28].

[25] Ibid, [28].

[26] See transcript in matter number C2022/2043, PN 294 – 313.

[27] Exhibit Minister 1, [6].

[28] [2005] HCA 18; 79 ALJR 881, [68].

[29] The “next conciliation conference” was on 24 February 2023.

Printed by authority of the Commonwealth Government Printer

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