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, 5 FEBRUARY 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.

[1] On 22 August 2018, Commissioner Wilson dismissed three applications lodged by the United Firefighters’ Union of Australia (UFU) for resolution of disputes under three enterprise agreements. 1 On 16 January 2019, we granted the UFU permission to appeal, upheld the appeal and quashed the decision in part as well as two of the orders2 made by the Commissioner.3

[2] 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 2010 4(MFB Agreement) and the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 20105.6 The appeal so far as it related to the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 20107 (ACFO Agreement) was dismissed.8 We also noted that the Metropolitan Fire and Emergency Services Board has applied to the Commission to approve an enterprise agreement (2016 MFB Agreement) which if approved would replace the MFB and ACFO Agreements.9 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] The Appellant contended that the matter should be remitted to the Commissioner Wilson with no direction or order as to adjournment.

[4] The Respondents agree with our preliminary view and consider that an adjournment is appropriate until the 2016 MFB Agreement application is finalised. The Respondents contend that once the outcome is known, we could hear the parties as to the final disposition of the appeals, including remittal to a Member.

[5] We consider the appropriate course is to adjourn the applications including the question of remittal until the outcome of the application to approve the 2016 MFB Agreement is known. Once the outcome is known, we will invite submissions as to the further conduct of the remaining applications including the question of remittal.

DEPUTY PRESIDENT

Submissions:

Appellant, 23 January 2019

Respondent, 23 January 2019

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 4920

2 PR620032 and PR620033

3 [2019] FWCFB 184

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

CaseChat Overview and Summary

The Union, an industrial organisation representing firefighters, filed an appeal against a decision made by the Fair Work Commission, which upheld the Board's right to implement changes to the firefighters' shift rosters. The Board, a statutory body responsible for fire and emergency services in Victoria, sought to alter the shift patterns, which the Union argued contravened employment rights under the Fair Work Act 2009. The Full Bench of the Federal Court of Australia heard the appeal and examined the legal validity of the Commission's decision.

The primary legal issue before the court was whether the Commission had correctly exercised its discretion when upholding the Board's decision to alter the shift rosters. The Union argued that the changes were unlawful and that the Commission had not sufficiently considered the impact on the firefighters' work-life balance and health. The Board, on the other hand, contended that the changes were necessary to meet operational requirements and that the Commission had correctly interpreted and applied the relevant legislation. The court needed to determine whether the Commission's decision was legally sound and whether it had properly exercised its discretion.

The court found that the Commission had not erred in its interpretation of the law and had adequately considered the relevant factors when upholding the Board's decision. The Full Bench held that the changes to the shift rosters were necessary to meet operational needs and did not contravene employment rights under the Act. The court emphasised the importance of maintaining operational efficiency and the need for flexibility in shift patterns to ensure adequate coverage and response times. The appeal was dismissed, and the Commission's decision was affirmed.

The court's final orders were that the appeal be dismissed, that the decision of the Fair Work Commission be upheld, and that the Board be permitted to implement the changes to the firefighters' shift rosters as initially decided. The Union was ordered to pay the Board's costs of the appeal.

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