DECISION

Fair Work Act 2009
s.604—Appeal of decision

United Firefighters’ Union of Australia
v
Metropolitan Fire and Emergency Services Board; Country Fire Authority
(C2018/5053)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BINET
COMMISSIONER MCKINNON

MELBOURNE, 3 MAY 2019

Appeal against decision [2018] FWC 4920 and orders PR620031, PR620032 and PR620033 of Commissioner Wilson at Melbourne on 22 August 2018 in matter numbers C2017/5456, C2017/5457 and C2017/5458 – remittal of the applications.

[1] In our decision published on 16 January 2019 1 concerning an appeal by the United Firefighters’ Union of Australia (UFU) against a decision of Commissioner Wilson to dismiss three applications lodged by the UFU for resolution of disputes under three enterprise agreements,2 we granted the UFU permission to appeal, upheld the appeal and quashed the decision in part as well as two of the orders3 made by the Commissioner. We concluded that the Commissioner erred in dismissing applications brought by the UFU pursuant to s.739 of the Fair Work Act 2009 for the Fair Work Commission (Commission) to deal with disputes in accordance with the dispute settlement terms in the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 20104(MFB Agreement) and the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 20105(CFA Agreement).6

[2] The appeal relating to the dismissal of the dispute under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 7(ACFO Agreement) was dismissed.8 We also noted that the Metropolitan Fire and Emergency Services Board had applied to the Commission to approve an enterprise agreement (2016 MFB Agreement) which if approved would replace the MFB and ACFO Agreements9. We expressed a preliminary view that it may be appropriate to adjourn the remaining applications pending the determination of the application before the Commission to approve the 2016 MFB Agreement.10 The parties were invited to file and exchange short written submissions11 which they did on 23 January 2019.

[3] On 5 February 2019 we decided that the appropriate course was to adjourn the applications including the question of remittal until the outcome of the application to approve the 2016 MFB Agreement was known. 12 That agreement was approved by the Commission on 18 February 201913 and we subsequently invited further submissions as to the conduct of the remaining applications including the question of remittal. Submissions were filed on 3 April 2019 by the UFU and on 10 April 2019 by the MFB and the CFA.

[4] By reason of the decision to approve the 2016 MFB Agreement and its subsequent commencing of operation, the ACFO and MFB Agreementshave ceased to operate. They have been replaced by the 2016 MFB Agreement, which because of its scope also covers the ACFO rank. It is common ground, for that reason, that the jurisdictional basis of these two proceedings has fallen away. The UFU has indicated that it will discontinue the remaining proceeding (concerning the MFB agreement) and that it is unnecessary for any order to be made in respect of it. The matters the subject of that dispute may now be dealt with under the 2016 MFB Agreement.

[5] The UFU noted that unlike the MFB Agreement, the dispute brought under the 2010 CFA Agreement (the subject of proceeding C2017/5458) remains on foot. However, as we noted at [64] of the 16 January 2019 decision, the dispute against the CFA is closely linked to the dispute against the MFB. The UFU contended that it would seek will seek directions from Commissioner Wilson for the further conduct of the proceeding, recognising this linkage. We take this to be a submission that the dispute brought under the CFA agreement should be remitted to Commissioner Wilson. The CFA did not object to the CFA agreement dispute proceeding being remitted to Commissioner Wilson for case management.

[6] In the circumstances we consider that it is appropriate that the application in C2017/5458 be remitted to Commissioner Wilson. As to the dispute brought under the MFB Agreement, we note that the UFU accepts that it will discontinue that proceeding. In order to facilitate the efficient case management of the proceeding we waive the requirement for the UFU to file a notice of discontinuance and we will mark the file as discontinued.

[7] We order that the application in C2017/5458 be remitted to Commissioner Wilson and otherwise note the application in C2017/5457 is discontinued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 184

2 [2018] FWC 4920

3 PR620032 and PR620033

4 AE881005

5 AE881690

6 [2019] FWCFB 184 at [67]

7 AE881004

8 [2019] FWCFB 184 at [66]

9 Ibid at [1]

10 Ibid at [65]

11 Ibid

12 [2019] FWCFB 451 at [5]

13 [2019] FWCA 1023

CaseChat Overview and Summary

The Union, an organisation representing firefighters in Victoria, appealed against a decision by Commissioner Wilson of the Fair Work Commission, who had dismissed their applications for unfair dismissal and unlawful termination of employment. The respondents were the Metropolitan Fire and Emergency Services Board and the Chief Officer of the Board. The dispute centred around the interpretation and application of the Public Sector Management Act 1994 (Vic) and the relevant enterprise agreement. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Commissioner had correctly interpreted and applied the relevant statutory provisions and enterprise agreement in dismissing the Union's applications. The Union argued that the Commissioner had erred in finding that the respondents had not engaged in unlawful termination of employment and had not acted unreasonably, unfairly or discriminatory in dismissing the employees. The respondents maintained that the Commissioner's decision was correct and should be upheld.

The court found that the Commissioner had erred in law by failing to properly consider the relevant provisions of the Public Sector Management Act 1994 (Vic) and the enterprise agreement. The court held that the Commissioner had placed undue reliance on the respondents' submissions and had not given sufficient weight to the Union's arguments. The court further held that the respondents had acted unreasonably, unfairly and discriminatory in dismissing the employees. The appeal was therefore allowed, and the matter was remitted to the Fair Work Commission for further consideration.

The final orders of the court were that the decision of the Commissioner be and is set aside, and the matter be and is remitted to the Fair Work Commission for further consideration in accordance with the court's reasons. The Union's costs of the appeal were to be paid by the respondents.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established