United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board
[2013] FWCFB 3297
•24 MAY 2013
[2013] FWCFB 3297 |
FAIR WORK COMMISSION |
FURTHER DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Metropolitan Fire and Emergency Services Board
(C2013/3173)Metropolitan Fire and Emergency Services Board
v
United Firefighters’ Union of Australia
(C2013/3204)
VICE PRESIDENT HATCHER | SYDNEY, 24 MAY 2013 |
Appeal against order [PR533599] of Commissioner Roe at Melbourne 29 January 2013 in matter numbers C2011/5138 and C2011/5139 Appeal against decision [2012] FWA 5408, [2012] FWA 9352[2013] FWC 354 of Commissioner Roe at Melbourne on 13 July 2012, 5 December 2012 and 17 January 2013 in matter numbers C2011/5138 and C2011/5139 .
[1] On 3 May 2013 we issued a decision in respect of these appeals 1 in which we granted permission to appeal, upheld grounds 8 and 9 of the Metropolitan Fire and Emergency Services Board (MFB) appeal, otherwise dismissed the MFB’s appeal, and dismissed the United Firefighters Union (UFU) appeal. We directed the parties to file further written submissions as to what further orders should be made having regard to our conclusions as to grounds 8 and 9 of the MFB appeal. We did indicate however that our preliminary view was that these aspects of the matter should be remitted to Commissioner Roe for rehearing.2
[2] We have now received the parties’ submissions. The UFU has submitted that the Full Bench should, under s.607(3)(c)(i) of the Fair Work Act 2009 (the Act), remit the errors identified in grounds 8 and 9 of the MFB’s appeal to Commissioner Roe for determination either on the papers or, to the extent necessary, by way of re-hearing. The MFB has submitted on the other hand that having found error in respect of identified matters, the Full Bench should re-exercise the discretion itself as to those matters, having all the necessary material before it to do so.
[3] The MFB is correct to say that it would be open to the Full Bench in the circumstances to re-exercise the discretion itself on the basis of the materials before it. However, we consider that the preferable approach is to remit the matters in respect of which error has been found to Commissioner Roe for re-hearing, given his deep familiarity with workplace issues concerning the MFB and his extensive involvement in this particular matter.
[4] No party submitted that we needed to quash, either in whole or in part, the Commissioner’s order the subject of the appeals (Order) 3 prior to any remittal. Accordingly we order, under s.607(3)(c) of the Act, that the matter will be remitted to Commissioner Roe for the purpose of a re-hearing concerning those aspects of the Order which were the subject of grounds 8 and 9 of the MFB’s appeal having regard to our earlier reasons for decision. It will be for the Commissioner to determine what the mode of that re-hearing shall be and whether any further evidence should be admitted.
VICE PRESIDENT
Appearances:
M. McDonald SC with C. Symons of counsel for the Metropolitan Fire and Emergency Services Board
A. Forsyth of counsel with T. Sakkas for the United Firefighters’ Union of Australia
Hearing details:
2013.
Melbourne.
17 April.
Further written submissions:
United Firefighters’ Union of Australia, 17 May 2013
Metropolitan Fire and Emergency Services Board, 17 May 2013
1 [2013] FWCFB 2301
2 At [60] and [67]
3 PR533599
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