United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB)

[2017] FWC 3172

[2017] FWC 3172

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB)
(C2017/2501)

COMMISSIONER WILSON MELBOURNE, 9 JUNE 2017

Alleged dispute arising under an enterprise agreement - new allowances and variations to existing allowances - consent order..

[1] Through an application made to the Fair Work Commission on 11 May 2017, the United Firefighters’ Union of Australia (UFU) alleged a dispute with the Metropolitan Fire and Emergency Services Board (MFB) arising under the terms of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Enterprise Agreement 2010 (the Operational Staff Agreement).

[2] The matter being dealt with through the UFU’s application is its claim to vary certain existing allowances as well as to create a number of new allowances to apply under the Operational Staff Agreement.

[3] In the course of the conference convened by the Commission on 8 June 2017, the parties were represented by Mr Warren Friend QC, of counsel, for the UFU, and Mr John Tuck from Corrs Chambers Westgarth solicitors for the MFB, who advised the Commission that the parties were in agreement about the disposition of the dispute between them and that they sought the Commission make an order giving effect to their in-principle agreement.

[4] Being satisfied that there was a dispute properly before the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act) and that it was appropriate to do so, the Commission determined the dispute by issuing an order in the terms sought by the parties. 1 In doing so the Commission advised the parties that it would be appropriate to publish short reasons for decision in relation to the order, and these are those reasons.

[5] Clause 42.3 of the Operational Staff Agreement is in the following terms;

“42.3. Any additional, new or increase of allowance above that already provided in the agreement will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.”

[6] Clause 15 of the Operational Staff Agreement permits disputes about “matters arising under this Agreement” to be referred to the Commission in order to “settle” the dispute.

[7] In has been held in relation to an almost identical provision applicable to operational firefighters employed by the Country Fire Authority that the relevant clause is part of the dispute resolution procedure which is contemplated by the Act which explicitly permits resolution of any dispute by the Commission and is not contrary to the scheme of the legislation. 2

[8] The parties submitted to the Commission that, notwithstanding their in-principle agreement, they sought the Commission determine the dispute through final determination of the merits of the dispute in a manner consistent with the provisions of s.739(4) of the Act which provides;

“(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”

[9] Having considered the provisions of clause 42.3 of the Operational Staff Agreement, the dispute resolution provisions of the same agreement and the provisions of s.739 of the Act, as well as the submissions made to the Commission by the parties, I was satisfied that it is appropriate for the Commission to make an order in the terms sought.

[10] Having made the order, I note that the parties have not presently reached agreement about the disposition of the claim for a new “Representation Allowance” and that the parties are to have further discussions amongst themselves about whether or not agreement can be reached as to the terms of such a new allowance. Accordingly, while determining the dispute to the extent of the Order that has been made by the Commission, that order does not determine the question of the Representation Allowance and liberty is given to the Applicant to seek a further conference or hearing in relation to that matter.

COMMISSIONER

 1   PR593629.

 2   United Firefighters' Union of Australia v Country Fire Authority [2015] FCAFC 1, (2015) 228 FCR 497, [254]–[257].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593643>