1
Fair Work Act 2009
s.615A(2)—Application for the President to direct a Full Bench to perform a function
Metropolitan Fire & Emergency Services Board
v
United Firefighters’ Union of Australia
(AG2014/5121)
JUSTICE ROSS, PRESIDENT MELBOURNE, 14 APRIL 2014
Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582 and 615A. Application refused.
[1] On 28 March 2014 the Metropolitan Fire and Emergency Services Board (the MFB)
made an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the FW Act) to
terminate two enterprise agreements - the Metropolitan Fire and Emergency Services Board,
United Firefighters Union of Australia, Operational Staff Agreement 2010 and the
Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia,
Assistant Chief Fire Officers Agreement 2010 (the ‘agreement termination applications’). The
MFB has made application to refer the agreement termination applications to a Full Bench.
[2] Pursuant to s.615A(2) the MFB seek a direction under s.582 that a Full Bench hear
and determine the agreement termination applications.
[3] Section 615A of the FW Act states:
615A When the President must direct a Full Bench to perform function etc.
(1) The President must direct a Full Bench to perform a function or exercise a power
in relation to a matter if:
(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.
(2) The following persons may apply to the FWC to have a Full Bench perform a
function or exercise a power in relation to a matter:
(a) a person who has made, or will make, submissions for consideration in the
matter;
(b) the Minister.
[2014] FWC 2498
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 2498
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[4] As the MFB will make submissions for consideration in the substantive matter, it
follows that it has standing to make an application pursuant to s.615A (see s.615A(2)). It also
follows that I must direct that a Full Bench determine the agreement termination application if
I am satisfied that ‘it is in the public interest to do so’.
[5] The MFB also advances an alternate submission. In the event that I am not satisfied
that it is in the public interest that a Full Bench determine the matter it is submitted that I
should nonetheless use my discretionary powers under s.582 to transfer the agreement
termination applications to a Full Bench, for the reasons advanced in support of the MFB’s
primary submission.
[6] The agreement termination applications were allocated to Commissioner Wilson and
listed for Directions Hearing on 8 April 2014. During those proceedings the parties made oral
submissions.
[7] The MFB has filed written submissions in support of its application1 and the UFU has
filed submissions in reply2, opposing the course proposed by the MFB. I have had regard to
those submissions and to the transcript of the proceedings before Commissioner Wilson on 8
April 2014.
[8] The issue for determination is whether I am satisfied that it is in the public interest to
refer the agreement termination application to a Full Bench.
[9] The expression ‘in the public interest’, when used in a statute, imports a discretionary
value judgment to be made by reference to undefined factual matters and confined only by the
subject matter, scope and purpose of the relevant statute.3
[10] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s
powers under ss 582 and 615A.
[11] Section 577 provides as follows:
“The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and
exercises its powers efficiently etc. (see section 581).”
[12] Section 578 directs the Commission to take into account, among other things, the
objects of the FW Act and ‘equity, good conscience and the merits of the matter’.
1 Exhibits A1 and A2
2 Exhibit R1
3 O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ
[2014] FWC 2498
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[13] Section 581 is also apposite. It provides, relevantly, that the President is responsible
for ensuring that the Commission performs its functions and exercises its powers in an
efficient manner.
[14] The MFB advances three principal arguments in support of its referral application:
(i) the nature of the employer: the MFB is a publicly funded statutory body with
various statutory functions, including emergency response services (encompassing
emergency medical response), which are to the public benefit;
(ii) the terms and conditions of the enterprise agreements do not allow for a
productive and effective fire service; and
(iii) there is uncertainty as to the legality of certain provisions of the enterprise
agreements due to the combination of the reasoning of the High Court in Re AEU4 and
the recent judgment of the Federal Court in UFU v CFA5.
[15] Other submissions were advanced on behalf of the MFB but the three identified appear
to be those upon which most reliance is placed.
[16] I am not persuaded that it is in the public interest to refer the agreement termination
applications to a Full Bench. There is no suggestion of any inconsistency in first instance
decisions regarding the interpretation of the relevant statutory provisions and I am not
persuaded that the submissions advanced on behalf of the MFB sufficiently enliven the public
interest.
[17] The efficient allocation of the Commission’s resources is also a relevant consideration.
The hearing is likely to take between 10 and 20 days and both parties have expressed a
preference for the matter to be heard in one ‘block’ of hearing days. A significant number of
witnesses are expected to be called, perhaps as many as 40. The duration and evidentiary
nature of the proceedings are such that it is more suited to determination by a single Member,
rather than a Full Bench.
[18] I have also considered the proposition, advanced on behalf of the MFB, whereby a
Full Bench may choose to delegate the hearing of the evidence to a single Member. While a
Full Bench may choose to adopt such a course practical considerations may militate against
such an approach. In a highly contested matter, as these proceedings give every appearance of
being, a range of evidentiary rulings may arise for determination during the course of oral
evidence. If these issues are determined by a single Member delegated to hear evidence on
behalf of Full Bench there is a risk of a subsequent challenge to those rulings, necessitating
further delay.
[19] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and
determine the agreement termination applications, the MFB’s s.615A application must be
dismissed.
4 (1995) 184 CLR 188
5 [2014] FCA 17 per Murphy J
[2014] FWC 2498
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[20] Nor am I persuaded that it is appropriate to exercise my discretion, under s.582, to
transfer the applications to a Full Bench. Considerations of fairness, efficiency and expedition
lead me to conclude that the appropriate course is to have these applications determined by a
single Member.
PRESIDENT
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