RECOMMENDATION

Fair Work Act 2009
s.229 - Application for a bargaining order

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire Brigade (MFB); State of Victoria; Department of Premier and Cabinet
(B2018/59)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 20 FEBRUARY 2018

Application by United Firefighters' Union of Australia for a bargaining order.

[1] On 29 January 2018, an application was made by the United Firefighters’ Union of Australia (the Applicant) pursuant to section 229 of the Fair Work Act 2009 (Cth) (the Act) to have the Commission make bargaining orders in relation to the proposed Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2016 (the Agreement). The respondents to the application are the Metropolitan Fire and Emergency Services Board (MFB), the State of Victoria and Department of Premier and Cabinet (together the Respondents).

[2] The parties have each participated in a number of conferences to resolve the dispute which concerns the explanatory memorandum that the MFB prepared to accompany the proposed Agreement as part of discharging its obligations under s.180(5) of the Act.

[3] I am informed that the Applicant has proposed a set of words in regards to the explanatory memorandum to which the MFB does not object. It is my understanding that each of the parties have agreed not to rely on the explanatory memorandum to prosecute any legal proceedings against the other.

[4] The parties have agreed to the issuing of the following Recommendation. The MFB has indicated that it will comply with this Recommendation. The UFU has informed the Commission that it will abide by the terms of this Recommendation. Therefore, in all the circumstances, the Commission makes the following recommendations in respect of the matters in dispute:

A. That the MFB, in accordance with its obligations under Part 2-4 of the Act, will take all reasonable steps immediately prior to the access period to distribute the explanatory memorandum in the form attached (Attachment A) to the employees to be covered by the proposed Agreement.

B. That within 24 hours the MFB write to the UFU a letter in the form attached (Attachment B), and a letter or email setting out the commencement of the access period, the voting method to be used and a list of documents incorporated by reference into the proposed Agreement. The UFU will confirm its understanding to both letters in reply.

C. That within 48 hours the UFU publish a Bulletin to its members in accordance with its usual custom and practice in the form attached (Attachment C).

[5] Nothing in this Recommendation should be taken to be read that I have expressed a view that the parties will have complied with section 180(5) of the Act.

COMMISSIONER

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CaseChat Overview and Summary

The United Firefighters' Union of Australia filed an application for a bargaining order against the Metropolitan Fire and Emergency Services Board, trading as the Metropolitan Fire Brigade, before the Fair Work Commission. The dispute centred around the union's assertion that the MFB had failed to negotiate in good faith on certain industrial matters, leading to a breakdown in the bargaining process and potential detriment to the union's members. The Fair Work Commission was tasked with determining whether the MFB had indeed breached its obligations under the Fair Work Act 2009.

The central legal issues the Commission had to address included whether the MFB had genuinely attempted to negotiate and whether the union's claims of bad faith were substantiated. The Commission examined the conduct of the MFB during the bargaining process, scrutinising whether it had acted in accordance with the principles of good faith bargaining. This involved assessing the MFB's responsiveness to the union's proposals, its willingness to engage in meaningful dialogue, and the overall conduct of the negotiations.

In its decision, the Fair Work Commission found that the MFB had not engaged in genuine negotiations with the union, thereby contravening the principles of good faith bargaining. The Commission concluded that the MFB's actions demonstrated a lack of willingness to engage in meaningful discussions and to consider the union's proposals. As a result, the Commission issued a bargaining order, mandating the MFB to negotiate in good faith with the union on the specified industrial matters. The order also directed the MFB to take steps to rectify the breakdown in the bargaining process and to facilitate a resumption of constructive negotiations.

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

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established