1
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Metropolitan Fire & Emergency Services Board
v
United Firefighters’ Union of Australia
(AG2014/5121)
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD,
UNITED FIREFIGHTERS UNION OF AUSTRALIA, ASSISTANT
CHIEF FIRE OFFICERS AGREEMENT 2010 & METROPOLITAN
FIRE AND EMERGENCY SERVICES BOARD, UNITED
FIREFIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF
AGREEMENT 2010.
Fire fighting services
COMMISSIONER WILSON MELBOURNE, 3 NOVEMBER 2014
Application for termination of the Metropolitan Fire and Emergency Services Board, United
Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 &
Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia,
Operational Staff Agreement 2010.
1. INTRODUCTION AND SUMMARY OF DECISION
2. GLOSSARY OF TERMS
3. RELEVANT LEGISLATIVE PROVISIONS
4. BACKGROUND TO THE APPLICATION
4.1 Submissions in support of the MFB’s Application
Unreasonable restrictions on its operations
Provisions that offend the Re AEU implied limitation
4.2 The UFU submissions in opposition
4.3 Consideration of the application in respect of the 2010 Agreements separately
5. BACKGROUND TO THE AGREEMENTS
5.1 1999 Agreement
5.2 2002 Agreement
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DECISION
E AUSTRALIA FairWork Commission
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5.3 2005 Agreement
5.4 2010 Agreement
6. THE HEARING
6.1 The scope of witness evidence and submissions
6.2- Disputes featuring in evidence and submissions
Routine managerial or public sector decision making
Property holdings
Operational MFB fire fighting issues
Interoperability
7.- CONSIDERATION
7.1- Introduction
7.2- Is termination of either Disputed Agreement “not contrary to the public interest”?
Summary - public interest
7.3- Is termination of either 2010 Agreement appropriate?
Appropriate to terminate; views of those covered
The MFB views
Views of the employees and the UFU
Summary - views of employees and the UFU
Summary - views of those covered
Appropriate to terminate; circumstances of those covered
Circumstances of the MFB
Circumstances of the employees
Circumstances of the UFU
Summary - circumstances of those covered
Appropriate to terminate; likely effect of termination on those covered
Likely effect of changes to conditions of employment
Likely effect of changes in the consultation framework and dispute resolution
procedure
The potential for OHS connected disputes to no longer be progressed
Long Duration Breathing Apparatus Training Course
Issue Regarding Ladder Platform Replacement
Issue Regarding Teleboom Replacement Project
Issue Regarding use of Mark V Trucks and Light Vehicles for EMR Heatwave
Response
The potential effects if Undertakings are enforceable
Summary - likely effects of termination on the parties
Likely effect of changes to the parties’ bargaining position
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Likely effect of potential consequential changes for the MFB, such as to its
performance or productivity
Likely effect of potential consequential changes for employees, such as for their safety
at work
Likely effect of changes for the UFU
Summary - likely effects of termination of the 2010 Agreements
Appropriate to terminate; “all the circumstances”
Summary – appropriate to terminate
1. INTRODUCTION AND SUMMARY OF DECISION
[1] On 28 March 2014, the Metropolitan Fire and Emergency Services Board (MFB)
made application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009
(the FW Act) for the termination of two enterprise agreements after their nominal expiry date.
[2] A single application was made by the MFB to terminate the Metropolitan Fire and
Emergency Services Board, United Firefighters Union of Australia, Operational Staff
Agreement 20101 (referred to as the 2010 Operational Staff Agreement) and the Metropolitan
Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief
Fire Officers Agreement 20102 (referred to as the 2010 ACFO Agreement). Collectively, the
MFB’s application is referred to as the “Enterprise Agreement Termination Application” and
the agreements that are the subject of the application are referred to as the “2010
Agreements”.
[3] Both Agreements were approved by the Commission on 23 September 2010, and both
reached their nominal expiry dates on 30 September 2013. 3
[4] An application for termination of an enterprise agreement after its nominal expiry date
is considered against the criteria set out in s.226 of the FW Act. Those criteria require the
Commission to be satisfied that termination is not contrary to the public interest (s.226(a))
and to consider whether it is appropriate to terminate the agreement, taking into account the
views and circumstances of those covered by the agreement, including the likely effects of
termination on them (s.226(b)).
[5] For the reasons set out in this decision, while I am satisfied that termination of the
2010 Agreements is not contrary to the public interest, I do not consider it is appropriate to
terminate the 2010 Agreements, for reason of the likely effects of termination on the
employees covered by the agreements and the United Firefighters’ Union of Australia (UFU),
being an employee organisation covered by the agreements. As a result, my decision is that
the 2010 Agreements should not be terminated.
2. GLOSSARY OF TERMS
1 AE881005
2 AE881004
3 See [2010] FWAA 7414 (Operational Staff Agreement); [2010] FWAA 7413 (ACFO Agreement)
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[6] The following definitions and abbreviations are used throughout this decision unless
the context requires otherwise;
2010 Agreements The 2010 ACFO Agreement and the 2010
Operational Staff Agreement, together
2010 ACFO Agreement Metropolitan Fire and Emergency Services
Board, United Firefighters Union of Australia,
Assistant Chief Fire Officers Agreement 2010
2010 Operational Staff
Agreement
Metropolitan Fire and Emergency Services
Board, United Firefighters Union of Australia,
Operational Staff Agreement 2010
Commission Fair Work Commission
FW Act Fair Work Act 2009 (Cth)
Metropolitan District The region in which the MFB provides its fire
suppression and fire prevention services, as
defined in s.4 of the MFB Act
MFB Metropolitan Fire and Emergency Services Board
MFB Act Metropolitan Fire Brigades Act 1958 (Vic)
Modern Award Firefighting Industry Award 2010 MA000111
OHS Act Occupational Health and Safety Act 2004 (Vic)
Re AEU Re Australian Education Union; Ex parte
Victoria (1995) 184 CLR 188
UFU United Firefighters’ Union of Australia
WR Act Workplace Relations Act 1996 (Cth)
3. RELEVANT LEGISLATIVE PROVISIONS
[7] The Enterprise Agreement Termination Application is made under s.225 of the FW
Act, which provides as follows;
225 Application for termination of an enterprise agreement after its nominal expiry
date
If an enterprise agreement has passed its nominal expiry date, any of the following
may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
[8] Sections 226 and 227 are also relevant to this decision;
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section
225, the FWC must terminate the agreement if:
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(a) the FWC is satisfied that it is not contrary to the public interest to do so;
and
(b) the FWC considers that it is appropriate to terminate the agreement taking
into account all the circumstances including:
(i) the views of the employees, each employer, and each employee
organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations
including the likely effect that the termination will have on each of
them.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates
from the day specified in the decision to terminate the agreement.
4. BACKGROUND TO THE APPLICATION
4.1 Submissions in support of the MFB’s Application
[9] The MFB is constituted by the Melbourne Fire Brigades Act 1958 (Vic) (the MFB
Act), which establishes the Metropolitan Fire and Emergency Services Board (the MFB
Board) in order to provide fire and emergency services to a large part of metropolitan
Melbourne.
[10] Section 7 of the MFB Act provides for the functions of the MFB Board, including
providing for fire suppression, fire prevention services and emergency prevention and
response services in the “metropolitan district”, being the municipalities, port of Melbourne
and riverways and waterways defined by the Act to comprise the district.4 Section 7AA
provides a duty for the MFB to assist in the response to any major emergency occurring
within Victoria. Section 7A obliges the MFB Board in performing its functions to contribute
to a whole of sector approach to emergency management and to “promote a culture within the
emergency management sector of community focus, interoperability and public value”.
[11] The MFB employs more than 2,100 people comprising around 1,800 operational
firefighters and 300 corporate staff. Its “baseline” operational staffing consists of 270
operational personnel on shift at any one time, located at 47 fire stations throughout the
Metropolitan District. The Metropolitan District covers more than 1,000 square kilometres,
and the MFB estimates it protects almost 4 million Melbourne residents, workers and
visitors.5 Fire stations are located and staff rostered in the ways they are, in order “to ensure
that emergency response standards of 7.7 minutes to structure fires, and 9.2 minutes to
Emergency Medical Response incidents are maintained for 90 percent of those incidents”.6
4 See MFB Act, s.4
5 Exhibit MFB 7, para 13 - 19
6 Exhibit MFB 8, para 36; see also Exhibit UFU 3, para 24
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[12] The MFB sets out the following broad reasons for having made the Enterprise
Agreement Termination Application;
“There are significant problems with the content of the Operational Staff Agreement
(and the ACFO Agreement which contains many identical provisions). First, there are
provisions which seriously interfere with the process of change and improvement
within the MFB and unreasonably impede the capacity of the MFB to carry out its
statutory functions effectively (see Part D below). Secondly, there are provisions
which offend the implied constitutional limitation as enunciated by the High Court of
Australia in Re Australian Education Union; Ex parte State of Victoria.
The MFB has sought to bargain with the UFU to address these and other issues. But
the UFU has shown no real interest in engaging in bargaining about these matters. The
UFU has no incentive to bargain about these matters. It knows that the MFB cannot
make any significant changes given the enormous control the UFU already has over
change processes. Basically, no progress has been made in bargaining for replacement
agreements and there is no realistic prospect of reaching an agreement any time
soon.”7 (citation and submission cross-references omitted)
[13] The MFB submits the Commission’s decision making process requires an exercise of
discretionary judgement, particularly on the question of appropriateness, in which regard
certain other provisions of the Act apply as well - the performance of the Commission’s
functions and exercise of its powers must be in a manner that is “fair and just” (s 577(a));
“promotes harmonious and cooperative workplace relations” (s 577(d)); takes into account
relevant objects of the Act and its parts (s 578(a)); and has regard to “equity, good conscience
and the merits of the matter” (s 578(b)).8 The approach by the Commission to the provisions
of s.226 must be to apply words of the section; extra words or requirements should not be
read into the application of the section.9
[14] The MFB submits about the public interest that;
“The termination of the Agreements would not be contrary to the public interest. It
would remove problematic content of numerous provisions of the Agreements, both
from a Re AEU perspective and from a basic productivity perspective. It would not
undermine bargaining – indeed, it would leave incentives to bargain, more so than
under the current circumstances.”10
[15] The “problematic content of numerous provisions of the Agreements” includes
provisions the MFB consider unreasonably restrict its operations11 as well as provisions that,
in its view offend the implied constitutional limitation12 set out by the High Court of Australia
in the matter of Re Australian Education Union; Ex parte State of Victoria (Re AEU).13
7 MFB Outline of Submissions dated 15 May 2014, paras 4 - 5
8 Ibid, para 7
9 Exhibit MFB 55, paras 6.2 - 6.3; per NTEIU v Monash University [2013] FWCFB 5982 at [19]
10 MFB Outline of Submissions dated 15 May 2014, at para 17
11 Ibid, paras 19 - 27
12 Ibid, paras 28 - 32
13 (1995) 184 CLR 188
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Unreasonable restrictions on its operations
[16] In summary, the MFB identified the provisions that unreasonably restrict its operations
as follows;
the provisions relating to consultation and dispute resolution are overly onerous
and mostly unworkable;14
the combination of the consultation obligations with the “status quo”
requirement,15 such as that contained in the Operational Staff Agreement at
cl.19.4, which provides that, during progression through the defined dispute
procedure, “work must continue and the status quo must apply in accordance
with the existing situation or practice that existed immediately prior to the subject
matter of the grievance or dispute occurring”;
the clauses regarding consultation over the introduction of change or variation to
policy;16
the combination of these matters and the identified clauses means that projects
and initiatives are delayed or compromised and, in some cases, abandoned; at
best the combination of these matters stifles creativity and innovation and at
worst “it delays or prevents better service delivery and improved safety outcomes
for employees and the public”.17
Provisions that offend the Re AEU implied limitation
[17] The MFB identified three broad categories of provisions of the 2010 Agreements it
says offend the Re AEU implied limitation. These were18;
provisions requiring the MFB to directly engage employees to perform work
covered by the agreement, preventing it from obtaining services through third-
party providers;
provisions requiring the MFB to employ a predetermined minimum number of
persons and which require no changes in relation to overall crowing numbers and
rank/classification numbers without the agreement of the UFU;
provisions restricting the MFB’s capacity to transfer employees in a manner that
is inconsistent with the “promotion and transfer” them of the implied
Constitutional limitation.
[18] The detail of the clauses the MFB argues are contrary to the implied constitutional
limitation are set out in Appendix A to its Exhibit MFB 119. The MFB argues that even
14 MFB Outline of Submissions dated 15 May 2014, para 19
15 Ibid, para 22
16 Ibid, para 25
17 Ibid, para 26
18 Ibid, para 29
19 Ibid, para 28; See also Exhibit MFB 55, Appendix B
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though the provisions were agreed to by the MFB, such fact does not alter their invalidity.20
After traversing the detail of its objections, it summarises the provisions of the 2010
Operational Staff Agreement which it argues are inconsistent with the implied Constitutional
limitation. The following is taken from a document provided to the Commission by the MFB
on 30 June 2014, and was put forward as a “clean (v4) copy of an amended Annexure A to the
Applicant’s Outline of Submissions”; however the document, provided in PDF form,
continues to include marked-up changes. For completeness, the relevant part of the document
as provided is reproduced without alteration;
20 MFB Outline of Submissions dated 15 May 2014, para 30; per UFU v CFA [2014] FCA [17], at [132]-[133]; Parks
Victoria v The Australian Workers’ Union [2013] FWCFB 950, at [369].
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3734 The MFB submits that all of these provisions restrict the MFB's capacity to transfer employees in a manner that is inconsistent with the 'promotion and transfer' limb of the implied Constitutional limitation. 3835 In summary, the MFB submits that the following provisions of the Operational
Staff Agreement are inconsistent with the implied Constitutional limitation: Operational Staff Agreement Clause Description 27.1.3 Termination of Employment
32.7 Maintenance of Classifications 32.2 Maintenance of Classifications 32.4 Maintenance of Classifications 33.1 Safe Staffing Levels
33.2 Safe Staffing Levels 36 Crewing appliances and stations 36.1.1 - 36.3 Crewing appliances and stations
- 36.1.3 Crewing appliances and stations 36.1.6 Crewing appliances and stations
36.3 Crewing appliances and stations 36.7 Crewing appliances and stations 36.9 Crewing appliances and stations Restoring
'y 37.2 Rostering 42.7.1 - 42.7.3, 42.76 Allowances 69.1.1-69.1.11 Classifications
- 11085628/411085628/2 page 8
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Operational Staff Agreement Clause Description 69.1 Classifications Definitions 69.1.9 Classifications_ Definitions Station
Officer 69.2 Ranks 70.1 (though note obsolete) Secondment D
10.0 vdreef rathis and Oppor Removal of the leading firefighter cap 70.4 Career Paths and Opportunities - Officers promotional courses 70.8.4 Career Paths and Opportunities-
Employee Development Opportunities 70.8.5 Career Paths and Opportunities - Employee Development Opportunities- Minimum numbers for promotional courses
70.8.5 Career Paths and Opportunities - Employee Development Opportunities - Minimum numbers for promotional courses 70.8.6 Career Paths and Opportunities - Employee Development Opportunities -
Trigger Figures for conducting of promotional courses 70.8.12 Career Paths and Opportunities - Employee Development Opportunities - Acting Up Opportunity Principles
70.8.13 Career Paths and Opportunities - Employee Development Opportunities Acting Up Opportunity Principles 70.8.17 Career Paths and Opportunities - Employee Development Opportunities -
11085628/411085628/2 page 9
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Operational Staff Agreement Clause Description Acting Up Opportunity Principles - 74.2 - 74.5 Maintenance of Classifications -
Employment by MFB 74.5 Maintenance of Classifications Delegation ete of MFB functions 82.1.4 Rostering Arrangements and Procedures Day
82.1.5 Rostering Arrangements and Procedures - Counting day work positions 82.2 Rostering Arrangements and Procedures -Allocation to Zones
82.3.1 - 82.12 Rostering Arrangements and Procedures Rostering 82.4 Rostering Arrangements and Procedures -Vacant Positions
82.4.1 Rostering Arrangements and Procedures -Vacant Positions 82.5 Restering Arrangements and Procedures -Transfers of employees within zones 22.10 Doctoring Arro and Procedurac
- Short term platoon changes 90.7 (other than 90.7.2) Amenities - Relocation, Temporary Premises 90.8 Amenities - Relocation, Permanent
Premises 90.9.3 Amenities - Relocation, New Stations 91.3 Operational Support Group
- 11085628/411085628/2 page 10
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Operational Staff Agreement Clause Description 92.10 Training 109 Rostering Arrangements and Procedures
112.2 Career Paths and Opportunities 112.3 Career Paths and Opportunities 113.1 Work Location and Duties for Fire
Service Controners 113.2 Work Location and Duties for Fire Service Communication Controllers 113.4 Werk Location and Duties for Fire Service Communication Controllers
115.5 Amenities - Relocation, Temporary Premises 115.6 Amenities - Relocation, Permanent Premises
116.2 Maintenance of Classifications for Fire Service Communication Controllers 116.5 Maintenance of Classifications for Fire Service Communication Controllers
Schedule 2 Minimum Crewing Schedule 2, clause 6 Minimum Crewing -Overall Crewing requirement
5936 It also submits that the following provisions of the ACFO Agreement are inconsistent with the implied Constitutional limitation: - ACFO Agreement Clause Description 20 Transfer Procedures
- 11085628/411085628/2 page 11
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[19] The MFB submits about these matters;
ACFO Agreement Clause Description 21 Establishment Numbers for ACFOs 26 Career Paths and Opportunities
Schedule 2 ACFO Position Description - Schedule 3 Staffing
- 11085628/411085628/2 page 12
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“These provisions also have a number of unfortunate side-effects. For example, they
make it more difficult for the MFB to respond in a flexible manner to seasonal
fluctuations in levels of fire risk or to serious emergency situations. They also make it
more difficult for the MFB to redress the gender imbalance in its workforce (presently
only 3.42% of operational staff are female) because female workers are at times more
likely to be attracted by part-time than full-time work. It also serves to prevent the
engagement of older workers (such as retirees) who might be interested in part-time
work but who would not be able and/or interested in working on a full-time basis.
Ironically, these restrictions have the further effect of limiting the total number of
positions available in the firefighting service, because it can reasonably be anticipated
that the MFB would be able to offer more jobs if it could engage employees on a more
flexible basis.”21
[20] Relevant to these proceedings and the factors that must be taken into account in
making a decision, the MFB argues that;
“The existence of content in the 2010 Agreements that on its face, is inconsistent with
the constitutional limitations expressed in Re AEU could raise a public interest. That
is, such content would be an attempt or in fact limit the ability of the State of Victoria,
through its agencies, to operate as it wants to discharge its functions as a Government.
It certainly would be not contrary to the public interest to terminate such an agreement.
This would also be a consideration under s.226(b). Similar observations may be made
about non-pertaining matters such as bans on contractors.”22
[21] The MFB also submits that since April 2013, it has endeavoured to engage in good
faith bargaining with the UFU but has been unsuccessful in doing so;
“The MFB has tried unsuccessfully to progress the negotiations and there is no realistic
prospect of reaching a replacement agreement.
After more than a year of supposed negotiations, including 17 scheduled meetings
(two of which were under the auspices of the Commission and two which the UFU did
not attend), the parties have not reached agreement on even one substantive issue.
In no small measure, this has been due to the bargaining conduct of the UFU. The
UFU has shown little inclination to negotiate on the substance of the issues. Instead, it
has engaged in surface bargaining by raising procedural issues and other insubstantial
side issues in order to give the appearance of being prepared to negotiate, without in
fact doing so. The specific concerns about the UFU’s bargaining conduct were
canvassed in the application brought by the MFB for good faith bargaining orders in
December 2013 (B2013/1564). The MFB discontinued that application in February
2014 after some marginal improvement in the UFU’s bargaining behaviour. This
appearance proved illusory. Additional issues arose that required further notice to be
given under s.229 of the FW Act.
The MFB submits that the UFU’s dilatory approach to bargaining reflects the fact that
it has little or no incentive to bargain. The UFU is not prepared to put at risk any of its
21 Ibid, para 32
22 Exhibit MFB 55, para 17.1
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veto powers in a genuine negotiation process. It can continue to derive the benefit of
these provisions, whilst the MFB’s capacity to conduct its undertaking in an effective
and efficient manner is severely circumscribed by their continued operation.”23
[22] The MFB draws from these circumstances the conclusion that;
“The continuation of the Agreements will unreasonably hinder or impair the process of
change and improvement at the MFB. Consistently with the observations of Boulton J
in Mt Thorley24 at paras [47] and [48] the negative impacts of the continuing operation
of the Agreements on change and improvement mean that it would not be contrary to
the public interest that the agreements be terminated.”25
[23] In forming a view about whether it is appropriate to terminate an agreement for which
application has been made pursuant to s.225, the FWC must take into account all the
circumstances including the views of the employees, each employer, and each employee
organisation (if any), covered by the agreement, and the circumstances of those employees,
employers and organisations including the likely effect that the termination will have on each
of them.26
[24] In relation to consideration of the likely effect that the termination will have on
employees, the MFB submits it “will provide terms and conditions to ACFOs and other
operational staff generally consistent with the terms of the Agreements, except for the
consultation and dispute resolution clauses and the other clauses that require the UFU’s
agreement to operational decisions, and those clauses which are inconsistent with the implied
constitutional limitation”.27 In relation to the identified exception of the consultation and
dispute resolution clauses, the MFB submits it will observe the consultation term at clause 8
of the Modern Award, the Fire Fighting Industry Award 2010, and the dispute resolution
procedure at clause 9 of the award.28
[25] The MFB argues that termination of either agreement will not deprive employees of
their capacity to have their industrial interests represented by the UFU29, and that the “terms
and conditions to be provided post-termination of the Agreements are an efficacious means of
protecting the interests of employees”.30
4.2 The UFU submissions in opposition
[26] In contrast to the MFB’s submissions, the UFU opposes the Enterprise Agreement
Termination Application and submits the MFB’s employees do the same. It also disputes the
grounds advanced by the MFB in its application and disputes that the provisions of the
existing agreements interfere with or impede the operations of the MFB in any significant
23 MFB Outline of Submissions dated 15 May 2014, para 33 - 36
24 (1999) 91 IR 184
25 MFB Outline of Submissions, dated 15 May 2014, para 39
26 FW Act, s.226(b)(i) and (ii)
27 MFB Outline of Submissions dated 15 May 2014, para 40
28 Ibid, para 41
29 Ibid, para 42
30 Ibid, para 43
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way. In addition, it disputes that the provisions impugned by reference to the constitutional
limitation provide a proper basis for any application under s.226.31
[27] In relation to the statutory tests for termination of an agreement, the UFU submits a
distinction is to be drawn between the current legislation and the former, set out in s.170MH
of the WR Act. In particular;
“…the terms of s.226 effect a broadening of the previous test and impose a more
onerous threshold for termination. It does that by imposing a condition in addition to
the public interest, that the termination be “appropriate” in all the circumstances
including the views of the persons covered by the agreement, their circumstances and
the likely effect that the termination would have on them.”32
[28] The UFU further argue that the “‘appropriate in all the circumstances’ criterion goes
beyond considerations of public interest and poses a higher threshold for allowing a
termination”.33 In support of this proposition, the UFU refers to the matter of Parnall Pty Ltd
[2012] FWA 8291 at [12]-[13] citing Royal Automotive Club of Victoria [2010] FWA 3483.
[29] In addressing the MFB’s argument that the 2010 Agreements contain problematic
content, the UFU submitted that the firefighters employed by the MFB provide an essential
emergency service in the Melbourne District as defined by s. 4(1) of the MFB Act, arguing;
“... This is no ordinary work. It requires these employees to do inherently dangerous
work in carrying out the functions of fire suppression and prevention as well as
emergency response, as stipulated by s. 7(1) and s. 7AA(1) of the Melbourne Fire
Brigades Act 1958. They are frequently put in life-threatening situations in the
performance of their work. There is accordingly a strong public interest in ensuring
fair terms and conditions that reflect and support the nature of this unique employment.
The Agreements do this and as such are consistent with the requirements of s. 8 of the
Public Administration Act 2004 which applies to the MFB. By that section of that Act,
the Chief Executive Officer of the MFB (as the relevant Public sector body Head) is
obliged to “establish employment processes that will ensure that:
(a) employment decisions are based on merit;
(b) public sector employees (firefighters in this case) are treated fairly
and reasonably;
(d) public sector employees have reasonable avenues of redress against
unfair or unreasonable treatment.
(Underlining added)
The termination of the Agreements would cast most firefighters back to the inferior
minimum award conditions contained in the Fire Fighting Industry Award 2010 (the
Modern Award) and this is inconsistent with s. 8. The position is worse for
31 Exhibit UFU 5, para 2
32 Ibid, para 20
33 Ibid, para 21
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firefighters who hold the rank of Commander and Assistant Chief Fire Officers. They
would not be covered by the Modern Award.”34 (original emphasis)
[30] In relation to the submission regarding Commanders and Assistant Chief Fire Officers,
the UFU submits that “Schedule B of the Modern Award contains classifications by rank. The
highest classification or rank covered is Fire Service Communication Controller.”35
[31] Rather than the termination of the 2010 Agreements having the effect of improving the
MFB’s productivity or performance of its statutory functions, the UFU contends the opposite,
suggesting that “termination will undermine the ability of the MFB to effectively perform the
functions stipulated by s. 7 and s. 7AA of the Melbourne Fire Brigades Act 1958”36; and that
“a foreseeable consequence of the removal of the consultation provisions in consequence of
termination, is impaired organisation performance”.37
[32] The UFU further argued that the consultation clauses considered problematic by the
MFB do not provide a proper public interest basis for termination (citing Mt Thorley at [42],
item 4 and [44]), and further that;
“The impugned Re AEU clauses do also not provide a proper basis for termination,
because they are of no legal effect, and there are other less drastic avenues available to
MFB to deal with them”.38
[33] In relation to the MFB’s proposition in relation to the conduct of bargaining that there
is “no realistic prospect of reaching a replacement agreement”, the UFU submits that
bargaining for the replacement agreement is not intractable and that evidence given by Casey
Lee, the UFU Industrial Officer Manager, shows;
“... that in bargaining since February 2014 the MFB has refused to bargain about
anything that is not one of what it terms “threshold” issues, being, consultation, dispute
resolution and classifications. It has also refused to bargain at all about any aspect of
the subject matter contained in clauses that it contends fall foul of the implied
limitation stated in Re AEU or which it characterises as unlawful under the FW Act.”39
[34] The UFU submits that bargaining meetings have not stopped and that the practical
effect of the MFB bargaining strategy is;
“... to seek concessions from the UFU before it will agree to bargain over other things.
Good faith bargaining does not require any party to make concessions and cannot
accordingly sustain a conclusion that bargaining is exhausted if the UFU does not
relent. However, the erection by the MFB of self-imposed barriers to bargaining does
not support a conclusion that the ‘MFB has tried unsuccessfully to progress the
negotiations’.
34 Ibid, paras 31 - 32
35 Ibid
36 Ibid, para 33
37 Ibid, para 34
38 Ibid, para 37
39 Ibid, para 39
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Indeed, its behaviour raises questions about the true reason for this application and
whether the application is in truth an attempt to achieve its desired bargaining outcome
without going through the prescribed bargaining processes and without having to
make any bargaining concessions.”40
[35] The UFU rejects the submission that its approach to bargaining has been dilatory, or
that there is no incentive for it to bargain due to the 2010 Agreements’ impugned clauses41
and it submits the Commission should not lightly approach a conclusion that bargaining is
exhausted. It argues that it would be premature for an invitation to the Commission to
conclude that bargaining is exhausted as a ground for termination of the 2010 Agreements.42
The union puts forward that;
“... hard bargaining is not a sufficient basis to conclude that a party is not trying to reach
agreement, and difficulty with reaching agreement is not to be confused with inability
to do so. A Full Bench has recently held that the scheme of the FW Act not only
encourages parties to make agreements but imposes an obligation on them to try to do
so. The observation of Boulton J in Mount Thorley applies here43:
‘It is unrealistic to consider that negotiations could have been concluded with
respect to all issues given the significance of the matters under discussion and
the uncertainties about the future plans for the Mine and in the absence of
proposals regarding pay’”44
[36] In relation to the need for the Commission to consider whether it is “appropriate in all
the circumstances” for the 2010 Agreements to be terminated, the UFU notes the findings
made on the subject by Vice President Lawler in Re Tahmoor Coal Pty Ltd45, and in particular
that;
“While there is a history of provisions empowering the AIRC to terminate statutory
collective agreements, prior to the enactment of s 226 of the FW Act the focus on
when that power should be exercised has been on “the public interest”. Section 226 of
the FW Act is the first time that this power has been made subject to a criterion of
“appropriateness”. The inclusion of that criterion is of particular significance and
means that some of the earlier authorities are of limited assistance in determining
whether the termination of an expired agreement is ‘appropriate’.”46 (reference
omitted)
[37] In relation to the Commission’s consideration of the views of employees, the UFU
notes it is to the only union covered by the 2010 Agreements the MFB seeks to terminate, and
that the “position of the industrial representatives of employees, in this case the UFU, is good
evidence of the views of employees”47. Additionally, the UFU reports that over 96% of
40 Ibid, paras 40 - 42
41 Ibid, para 47
42 Ibid, para 48
43 (1999) 91 IR 184, at [44]
44 Exhibit UFU 5, para 46
45 [2010] FWA 6468, (2010) 204 IR 243
46 Ibid, at [33]
47 Exhibit UFU 5, para 59; relying upon Re Tahmoor Coal Pty Ltd (2010) 204 IR 243, at [58]
[2014] FWC 7776
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respondents to a union sponsored survey strongly disagreed with the proposal to terminate the
agreements, and more than 98% strongly disagreed with the proposition to reduce their terms
and conditions to the award minimum with an undertaking from the MFB.48 The union
submits that the combination of these factors, together with the evidence led from firefighters
“compels the conclusion that the UFU and an overwhelming number of Victorian firefighters
who enjoy the benefit of the agreements oppose termination”.49
[38] The UFU separately addresses the criterion set out in s.226(b)(ii), which requires the
Commission take into account the circumstances of the employees, employers and
organisations covered by the agreements, including the likely effect that the termination will
have on each of them. It argues that the Modern Award will not cover Commanders and
Assistant Chief Fire Officers, and that the MFB’s proposal to provide all employees with
terms and conditions of employment “that are generally consistent with the terms of
Agreements”, other than identified parts, “is totally unacceptable and should not be accepted
by the Commission”.50 The union argues that the undertakings as given are not enforceable
commitments; that termination of the 2010 Agreements will significantly change the
bargaining position of the parties by enhancing the MFB’s position and will diminish
employees. Citing the proposition set out in Re Tahmoor Coal Pty Ltd51, the union submits in
this regard;
“It is generally inappropriate for the Commission to interfere in the bargaining process
so as to substantially alter the status quo in relation to the balance of bargaining power
between the parties and thereby deliver to one effectively all that it seeks from the
bargaining.”52
[39] The UFU also notes that an effect of the termination of the 2010 Agreements would be
that employees would lose the benefit of consultation clauses that have been in place for many
years and in successive enterprise agreements. Such clauses;
“... were part of a total negotiated “package” in which concessions were made by both
sides, so that “consideration” for the clauses passed from the employees to the MFB.
Furthermore the package represents the resolution of industrial issues that have taken
many years of negotiation to resolve. An example is minimum crewing” 53. (citation
omitted)
[40] The union submits also that it is highly relevant for the Commission to have regard to
the history of the clauses in previous agreements made by the MFB with its employees and
the UFU, with the union submitting that the evidence is that the MFB consistently agreed to
the consultation and dispute resolution provisions and that it “did so again in 2010 in
enthusiastic terms”54. Further;
48 Ibid, paras 63 - 64
49 Ibid, para 67
50 Ibid, para 72
51 (2010) 204 IR 243, at [55]
52 MFB Outline of Submissions dated 15 May 2014, para 76
53 Ibid, para 78
54 Ibid, para 83
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“The Commission should take into account and give great weight to the fact that the
consultation clauses about which the MFB now complains, have been repeatedly
agreed to by it in successive enterprise agreements. That history of agreement cannot
be reconciled with the submission in paragraph [19] of the Outline that the impugned
provisions are “overly onerous and have proved for the most part to be unworkable”.
Further, in relation to the Re AEU clauses, the MFB entered into a common law Deed
in conjunction with the Agreements, and in that Deed it agreed that it would abide by
those clauses as incorporated terms of the Deed if it transpired that they were beyond
the power of the Commission to include in an enterprise agreement.”55
[41] In relation to the substance of the consultation and dispute resolution clauses, the UFU
submits the clauses;
“... do not operate to curtail the ability of the MFB to “initiate any change”. That
capacity is unaffected. The clauses do curtail the ability of the MFB to implement
change unilaterally in the exercise of an outmoded conception of absolute management
prerogative. That was recognised by the Full Court in QR Rail v CEPU (2010) 204 IR
142; per Keane CJ and Marshall J at [13]-[14]”56
[42] While conceding that clause 13 of the 2010 Agreements intrudes significantly into the
area of management prerogative, as did the clause before the Full Court in QR Rail v CEPU,
“that does not mean it is inherently suspect or ‘problematic’”.57 The provisions have
functioned as intended; are to be read against the objectives of the respective agreements,
which include firefighter safety and security of employment; and there is good reason why the
clauses are in the form they are;
“In the MFB there is good reason why in the public interest and in the interests of
firefighters the intrusion into management prerogative should be as envisaged by the
consultation and dispute resolution clauses of the agreements – the work is dangerous
and the lives of firefighters may be put in jeopardy at any time. In such circumstances
it is entirely legitimate that they have a substantial say about the way in which, and the
equipment with which, their work is to be carried out. To disallow such an
involvement will have a very important effect on the confidence with which
firefighters enter upon their firefighting tasks. Insofar as the MFB now desires greater
freedom of management action than available now under the agreements, its remedy is
bargaining.”58
[43] The UFU rejects that it has improperly used the rights granted in the 2010
Agreements, saying that “[c]onsensus is what it says; the MFB’s rights under the clauses are
co-extensive with those of the employees”; and that “it is incorrect to suggest that the
consultation process is all one way with the MFB proposing and the UFU answering what is
proposed”59. The union points to the benefits of consensus-based consultation. On the one
hand there are “numerous examples of the MFB proposing or seeking to introduce the use of
55 Ibid, para 81 - 82
56 Ibid, para 84
57 Ibid, para 85
58 Ibid, para 86, citing Re Mount Thorley (1999) 91 IR 184 at 192 at [47]
59 Ibid, para 88 - 89
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equipment which was exposed as unsafe in the consultation phase and thereafter rectified”;
and on the other, the current provisions and processes promote “confidence amongst
firefighters that an idea or new equipment won’t be commissioned before rigorous discussion
and testing has occurred through a mechanism that has their interests in an appropriately
prominent position”.60
[44] The union submits that in the event that the 2010 Agreements are terminated,
consultation provisions for firefighters, with the exception of Commanders and Assistant
Chief Fire Officers, will revert to the provisions of the Modern Award, which provisions are
not utilised by any Australian fire service.61
[45] In respect of the MFB’s submission that certain clauses of the 2010 Agreements
offend the Re AEU implied constitutional limitation, the UFU submitted;
“The basis upon which it is said that the presence of the clauses justifies termination is
that “there is considerable uncertainty as to the validity of these provisions”. That
contention ought to be rejected. In the event of ambiguity or uncertainty a construction
that would make a clause valid is to be preferred over one that would make it void.62
However, the Commission does not need to embark on that task here.
If a term of the agreements is as a matter of law beyond power the offending clause or
part thereof is void and of no effect; termination of the agreement is not required to
bring about that result. If there is any uncertainty about the Constitutional validity of
any clauses it can be conclusively resolved by a targeted application to the Court
rather than the “scorched earth” approach of a termination application where the
Commission is asked to terminate the valid clauses as well.
Indeed the failure of MFB to resolve its claimed uncertainty about the Re AEU clauses
previously during the life of the Agreements raises strong inferences about MFB’s real
purpose in bringing this application.
The MFB has at all times had the means available to raise the question it poses (this is
discussed further in the next paragraph below). In contrast, the Commission is not
required to confront the issue of validity directly in these proceedings, nor is it
necessary that it do so. In this respect, the Commission in an application under s. 225
stands in a very different position to the Commission in Parks Victoria v the AWU
[2013] FWCFB 950. There the question, on one aspect of the case, was whether the
State of Victoria had referred power to the Commonwealth pursuant to the Fair Work
(Commonwealth Powers) Act 2009 (Vic) that would support a law that required
inclusion of particular agreed terms into a workplace determination. That doesn’t arise
here. The Commission isn’t asked to exercise a power it doesn’t have. The only power
it does have is to overturn the whole instrument, including content untouched by the
implied limitation.
The FW Act by s. 561 invests the Federal Court with jurisdiction with respect to
matters arising under the Act. The validity of a clause of an agreement made under the
60 Ibid, paras 93 - 94
61 Ibid, para 100
62 Citing Australian Electoral Commission v Hickson (1997) 76 IR 399; per Branson and Marshall JJ at 416
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Act is clearly a matter arising under the FW Act. It is clearly open to the MFB to apply
to the Court for a declaration of invalidity of any of the impugned clauses, without
affecting the operation of any other uncontroversial term of the Agreements.
In contrast, at best the Commission can only offer an opinion that the impugned
clauses may (or may not be) unenforceable due to the implied limitation. That opinion
cannot supply a sound basis to terminate the Agreements in total. If the MFB is right,
the impugned clauses are of no effect now and their invalidity would provide a
complete defence against any attempt to enforce them against the MFB.”63
[46] The UFU also submits that;
“Another relevant consideration in relation to the Re AEU clauses is that MFB entered
into the Agreements well aware of the potential invalidity of these clauses. In
recognition of that potential problem and in order to overcome it if it arose, The MFB
entered into a Deed with UFU whereby it was agreed that if any clause of the
Agreements was found to be invalid at law, it would be treated as incorporated into the
Deed and enforced as such.
The present use of the Re AEU clauses is inconsistent with the MFB’s undertakings in
the Deed, and provide a further reason why this ground is an inappropriate basis for
termination.”64
[47] In answer to the MFB submission that much of the content of the 2010 Agreements is
“ill-suited” to a modern fire service65 and the agency’s statutory charter, the UFU argues the
submission is disingenuous, with the primary imperative of a modern fire service being the
safety of employees and the public. Because employees have “an intimate and immediate
interest” in such an imperative, “clauses that facilitate their role are important not
superfluous”.66
[48] The MFB submissions referred to the statutory and common law duties it owed to
employees, others and the public, arguing that;
“The MFB is under a series of statutory duties to protect the health, safety and welfare
of its employees, of persons whose health or safety may be impacted by the conduct of
its undertaking, and the general public – see especially the Occupational Health and
Safety Act 2004 (Vic) and the Metropolitan Fire Brigades Act 1958 (Vic). The MFB
also owes a common law duty of care to its employees and to other persons who may
be affected by its activities.
Termination of the Agreements would not in any way relieve the MFB of these
responsibilities or impair its capacity to discharge them. Indeed, removal of some of
the existing impediments in the Agreements would positively enhance the capacity of
the MFB in the area of health and safety.”67
63 Exhibit UFU 5, paras 102 - 107
64 Ibid, para 109 - 110
65 MFB Outline of Submissions dated 15 May 2014, para 45
66 Exhibit UFU 5, para 112
67 MFB Outline of Submissions dated 15 May 2014, paras 46 - 47
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[49] In its submissions on this particular subject, the UFU put forward a contrary view;
“This submissions [of the MFB, above] again creates a false impression about the role
of the firefighters,
Under s.25(1)(a) and (b) of the Occupational Health and Safety Act 2004 (Vic) the
firefighter have a separate and independent duty of care for their own health and safety
at work, as well as for the health and safety of persons who may be affected by their
actions at work.
Contravention of this statutory duty is an indictable offence.
This duty provides a powerful basis for the firefighters to be concerned about the
terms and conditions under which they are required to carry out their duties and a
complete answer to the MFB’s submission.”68
[50] The MFB put forward in relation to its application not that the continuation of the
2010 Agreements is contrary to the public interest, but that termination of the 2010
Agreements is not contrary to the public interest.69 It submits that the correct application of
s.226 shows that the Commission does not have to be satisfied the termination is in the public
interest; further the correct application of the section means that the matter raised by the
termination of the 2010 Agreements but with no connection to the public interest is not a
consideration in the Commission’s formation of a view about termination being contrary to
the public interest.70
[51] The MFB’s submissions relating to s.226(a) (contrariness to the public interest) take
into account the matters considered by the Commission in earlier matters; Re Mount Thorley;
Kellogg Brown & Root Pty Ltd v Esso Australia Pty Ltd71 (KBR); Energy Resources of
Australia Ltd v Liquor, Hospitality and Miscellaneous Union72 (ERA v LHMU). While the
MFB notes that the Commission should be cautious in respect of “checklists which mix up
components of private interests and ‘the public interest’”,73 it distils from the authorities six
considerations which it then addresses in some detail in its submissions. The considerations it
identifies are the following74;
(a) effect on parties to the agreement;
(b) the statutory scheme for the making and observance of agreements;
(c) conduct and progress in bargaining;
(d) the need to ensure the efficient and viable operation of the enterprise;
(e) the problems relating to the continued operation of the agreement;
(f) provisions of the agreement dealing with its renewal and/or termination.
68 Exhibit UFU 5, paras 114 - 117
69 Exhibit MFB 55, para 18
70 Ibid, para 7.1
71 (2005) 139 IR 34
72 [2010] FWA 2434
73 Exhibit MFB 55, para 7.6
74 Ibid, para 7.5
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4.3 Consideration of the application in respect of the 2010 Agreements separately
[52] As already referred to, the Enterprise Agreement Termination Application made by the
MFB is in respect of two separate agreements.
[53] A feature of the way the matter has progressed is that the parties have presented
evidence and submissions that does not especially distinguish between the two agreements,
and if they have referred to a particular agreement, it has most frequently been to the 2010
Operational Staff Agreement. I am mindful however, that my task includes consideration of
whether either or both of the 2010 Agreements should be terminated.
[54] I have considered all evidence and submissions as being in respect of each agreement,
except where the context requires that it be a consideration in respect of one agreement alone.
5. BACKGROUND TO THE AGREEMENTS
5.1 1999 Agreement
[55] The Metropolitan Fire and Emergency Services Board, United Firefighters Union of
Australia, Operational Staff Agreement 199975 commenced on 9 June 1999, with the
agreement expressed to cover the occupations specified in the Victorian Firefighting Industry
Employees Interim Award 1993 and the Firefighting Services -Wages- Firefighters and
Firefighting Officers - Victoria - Award 1996.76
[56] In the 1999 Agreement, clause 9.1 deals with consultation, which is defined to mean
“the full, meaningful and frank discussion of issues/proposals and the consideration of each
party's views, prior to any decision”.
[57] Clause 9.2 establishes an Enterprise Bargaining Implementation Committee (EBIC)
“to facilitate the implementation of this Agreement and ongoing workplace reform”, setting
the objective that EBIC’s “decision making will be by consensus”77, with a further obligation
about what should be referred to EBIC, and the endorsement of proposals by parties outside
of EBIC;
“The respective parties, at their own initiative, may require the endorsement of their
constituents in relation to proposals for change. No proposals for change arising from
this Agreement shall be implemented without referral to the Enterprise Bargaining
Implementation Committee.”78
[58] Clause 9.3 regulates the operation of consultative committees established under the
1999 Agreement, with subclause 9.3.4 providing;
“All committees established under this agreement are recommendatory in nature and
will operate on the basis of consensus when developing recommendations.”
75 Exhibit MFB 3, tab 6; AG790039 (1999) Print R5723
76 Ibid, cl. 6.2
77 Ibid, cl. 9.2.2
78 Ibid, cl. 9.2.5
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[59] Clause 11 of the 1999 Agreement deals with the introduction of change, providing
that;
“INTRODUCTION OF CHANGE
Where the employer has a proposal to introduce or implement significant change in
matters pertaining to the employment relationship in any of the workplaces covered by
this agreement, the provisions of subclauses 9.2 and 9.3 will apply.”
[60] The reference in the above clause to subclauses 9.2 and 9.3 is a reference to the
formation and processes for operation of the EBIC and consultative committees, and save for
the provision in subclause 9.2.5 that proposals for change require submission to the EBIC,
clauses do not appreciably add to the definition of “change”.
[61] The Dispute Resolution procedure is set out in Clause 12, and provides a five step
process “to achieve a satisfactory resolution of any dispute or grievance”.79 The fifth and
final step of the procedure allows matters to be referred to the Australian Industrial Relations
Commission for conciliation and determination. The procedure also refers in the following
way to the “status quo” applying to matters that are the subject of the procedure while the
procedure is followed;
“12.8 While the above procedures are being followed, the status quo shall be maintained
until the matter is resolved. No party shall be prejudiced as to the final settlement by
the continuance of work in accordance with this sub-clause.”
[62] The 1999 Agreement made the following provisions with respect to the supply and
replacement, etc of uniforms and equipment;
“30. UNIFORMS AND EQUIPMENT
30.1 The employer shall supply each employee and be responsible for the cost of
replacing, repairing and/or cleaning the articles of clothing and/or equipment that the
Union and the employer agree must be worn and/or used by the employee.
30.2 The replacement, repairs and/or cleaning of the articles of clothing and equipment
will occur when reasonably required by each employee and/or when the uniform or
equipment becomes so soiled or damaged that it requires cleaning, repair or
replacement.
30.3 Employees are responsible for cleaning their own shirts, T-shirts and socks.”
[63] The 1999 Agreement uses the word “consensus” in the context referred to above,
namely the requirement in cl.9.3.4 for committees to “operate on the basis of consensus when
developing recommendations”. The word “agreement” is used mostly, but not exclusively, as
a noun referring to the industrial instrument itself. An important exception is the requirement
that employees cannot be required to be transfer between stations above a particular threshold
79 Ibid, cl. 12.1
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unless there is agreement80; and a further exception is contained within subclause 9.2.7, which
provides with respect to EBIC that;
“The committee may, by agreement, alter its size and/or composition or establish
working parties to research and make recommendations on specific issues.”
[64] “Agreement” in the sense of a contingent event is also used within in the Dispute
Resolution clause, but in the limited context of disputes arising under clauses 18 (Zone
Management) and 26 (Attendance Management);
“12.10 Both parties recognise that due to the nature of Clauses 18 and 26 that any
implementation must be by agreement and shall not be subject to determination by the
Commission under sub Clause 12.7.”
[65] Clause 18 required that implementation of the revised management structure would be
subject to agreement by each of the parties.
[66] The word “agree” is used within the 1999 Agreement in two principal contexts;
as a statement of what has already been agreed between the parties, such as by
providing “[t]he Parties agree that the existing rank and promotional structures
are appropriate and will be maintained for the life of this agreement;”81 or
as a statement of intent about something the parties may or will do during the
term of the 1999 Agreement, such as by providing that “[t]he parties will
investigate the formation of an appropriate schedule of terms and conditions for
employees who agree to form part of an MFESB response to emergencies outside
the Metropolitan Fire and Emergency Services Board district.”82
5.2 2002 Agreement
[67] The 1999 Agreement was replaced by another instrument certified in 2002, which
commenced operation on 28 November 2002.83 The 2002 Agreement had an updated
coverage provision, with the coverage clause amended to refer to persons engaged in an
occupation specified in the Victorian Firefighting Industry Employees Interim Award 2000, or
in the agreement itself.84 The 2002 Agreement provides also, in respect of its operation,
“[t]his agreement shall remain in force until replaced by a new agreement”.85
[68] The 2002 Agreement contains an important variation to the clause dealing with
consultation and the introduction of change. Whereas the 1999 Agreement provides that “a
proposal to introduce or implement significant change in matters pertaining to the
employment relationship in any of the workplaces covered by this agreement”86 requires
80 Ibid, cl 19.1
81 Ibid, cl. 23.1
82 Ibid, cl. 20
83 Exhibit MFB 3, tab 4; AG819934 (2002) Print PR925132
84 Ibid, cl. 6.2
85 Ibid, cl. 4.1
86 1999 Agreement, cl. 11
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consultation, the 2002 Agreement provides that a proposal to introduce or implement any
change as defined in clause 9.1 will require consultation, which clause provides the following;
“9.1 Definitions
Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and
the consideration of each party's views, prior to any decision.
Change
Change includes, but is not limited to, any change that will have an impact on
employees regarding work practices or location, job security, remuneration, training or
new technology or equipment or in matters pertaining to the employment relationship
or in the way work is or would be carried out by an employee in any of the
classifications of this agreement or any claim in relation to a matter contained in
Appendix B.”
[69] Importantly the clause in the 2002 Agreement expanded the scope of matters requiring
consultation from those proposals which could be expected to bring about “significant
change” to being an event which includes, but presumably is not limited to, “any change that
will have an impact on employees”. In addition to this change of substance between the 1999
and 2002 Agreements, the matters required to be referred to EBIC had also expanded, at least
on the face of the clause. The original clause required that “no proposals for change arising
from this agreement shall be implemented without referral to the Enterprise Bargaining
Implementation Committee”, whereas the 2002 Agreement provided;
“9.2.5 The respective parties, at their own initiative, may require the endorsement of
their constituents in relation to proposals for change. No change or proposals for
change arising from or relating to matters dealt with in this Agreement or in matters
pertaining to the employment relationship or in the way work is carried out shall be
implemented without referral to, the Enterprise Bargaining Implementation
Committee.” (emphasis added)
[70] Of course, it may be that in the context of the clause itself, an alteration from the
original wording of “no proposals” to “no change or proposals” may not be significant.
[71] The 2002 Agreement also contains a dispute resolution procedure, also set out within
clause 12 of the agreement. However the contents of the procedure differ in important
respects from the 1999 Agreement. In particular the clause provides different rights in respect
of the external body to whom a dispute may be referred if not settled at Step 5 (broadly, an
unresolved dispute may be referred to an “agreed arbitrator” and in the absence of agreement
the Australian Industrial Relations Commission). In addition the clause does not employ the
term “status quo” and instead prescribes the following in respect of maintaining existing work
practices;
“12.9 While the above procedures are being followed, work must continue in
accordance with the existing situation or practice that existed immediately prior to the
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subject matter of the grievance or dispute occurring. No party shall be prejudiced as to
the final settlement by the continuance of work in accordance with this sub-clause.”
[72] The provision and replacement, etc, of uniforms and equipment is dealt with in clause
29 in the same way as in the 1999 Agreement.
[73] Within the 2002 Agreement, “consensus’ is used more broadly than in the 1999
Agreement. In addition to the occasions in the 1999 Agreement requiring consensus, the
2002 Agreement required consensus decision making in meetings of Designated Work
Groups established for the purposes of an incorporated Occupational Health & Safety Policy
and Processes Agreement and in the Health and Safety Policy Committee wherein it was
provided that;
“All members of the committee will have one vote. The chairperson will have an
ordinary vote but no casting vote. It is intended that decisions will be by a consensus
vote. ...”87
[74] As with its predecessor, the 2002 Agreement uses the word “agreement” mostly, but
not exclusively, as a noun referring to the industrial instrument itself. As an example of the
exceptional use of the word “agreement”;
Cl.23 contains such an exception when it provides “HR policy that is dealt with
elsewhere in the agreement may only be varied by agreement.”
Cl. 38.3 provides that agreement of the UFU is required for a certain forms of
“contracting out” arrangements;
Schedule 2, Cl 4.7 provides that the terms of reference for an OHS Consultative
Committee may be varied by agreement of the parties.
[75] The 2002 Agreement maintains the 1999 Agreement’s two uses of the word “agree”,
with it usually being expressed in phrases such as “the parties agree”. The 2002 Agreement
also maintains the role of EBIC; what must be referred to EBIC before implementation; and
an entitlement of parties to seek the endorsement of their constituents in relation to proposals
for change.
5.3 2005 Agreement
[76] The 2005 Agreement replaced the 2002 Agreement and came into force on 19 April
2006.88 As with its predecessor, the 2005 Agreement provides that “[t]his agreement shall
remain in force until replaced by a new agreement”.89 The scope of the 2005 Agreement is
expressed to cover all employees of the MFB engaged in a classification or occupation
referred to in the agreement or what is referred to as the “scheduled Award”, being those
terms of “the VFIEI Award as at 23 September 2005” which have been incorporated into the
87 2002 Agreement, sch. 2, cl. 4.6.5
88 Exhibit MFB 3, tab 3; AG848710 (2006) PR971796
89 Ibid, cl 4.2
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agreement as a schedule.90 Schedule 1 of the 2005 Agreement provides wages under the
agreement for classifications between the levels of “recruit” and “commander” and Schedule
8 sets out the “scheduled award”, with clause 9 of the schedule setting out “classifications and
wage rates” for classifications between “recruit” and “senior station officer”. There is no
apparent provision for Assistant Chief Fire Officers.
[77] The 2005 Agreement maintains the earlier definitions of “consultation” and change,
and continues the scope of matters that must be referred to EBIC.91 Although the dispute
resolution clause continues the requirements in respect of continuation of work in accordance
with the existing situation or practice, and does not employ the term “status quo”92, it also
provides a particular procedure for dealing with “OSG disputes”. While the 2005 Agreement
does not provide a definition of OSG, the evidence in this matter has taken the Commission to
the work of the Operational Support Group, “comprised of employees of the MFB who are
not fully fit for firefighting duties”93.
[78] The 2005 Agreement provides the same arrangements as the earlier agreement for the
provision and replacement, etc, of uniforms and equipment (see clause 31).
[79] The use of the word “consensus” in the 2005 Agreement remained confined. Decision
making in EBIC and Designated Work Groups was to continue to be by consensus.94 There
remained an intention that the Health and Safety Policy Committee decision making would be
by a consensus vote and the Operational Employees OH&S Committee would continue to
arrive at solution and recommendations by consensus.95
[80] The words “agreement” and “agree” are used in the 2005 Agreement in a similar
manner and similar extent to the use of those words in the 2002 Agreement.
5.4 2010 Agreements
[81] The 2010 Operational Staff Agreement, which is one of the agreements that is the
subject of these proceedings was approved by Fair Work Australia to operate from 30
September 2010.96 In a manner similar to its 2002 and 2005 predecessors, the 2010
Operational Staff Agreement provides that “[t]he parties agree that this agreement shall
remain in force until replaced by a new agreement.”97 The scope of the agreement is
expressed to cover all employees of the MFB engaged in a classification or occupation
referred to in the agreement or in Victorian Firefighting Industry Employees Interim Award
2000 “and any successor to that award”.98
90 Ibid, cl. 6.1.3 and schedule 8; the reference to “the VFIEI Award” is apparently a reference to the Victorian Firefighting
Industry Employees Interim Award 2000 (code AP801881)
91 Ibid, cll. 9.1 and 9.2.5
92 Ibid, cl. 12.9
93 Exhibit MFB 10, para 20
94 Exhibit MFB 3, tab 3, AG84710 (2006) PR971796, cll. 9.2.2 and 4.5.1
95 Ibid, sch. 2, cl 4.6.5 and 4.7.4
96 [2010] FWAA 7414, AE881005 (PR501990) Roe C
97 Ibid, cl 4.1
98 Ibid, cl 6.3
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[82] The 2010 ACFO Agreement was approved by Commissioner Roe on 23 September
2010 and was also to operate from 30 September 2010. Upon approval the Commissioner
noted the agreement came about, at least partly, because;
“[4] There was a scope order issued in relation to this agreement in “United
Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board
and United Firefighters’ Union of Australia [2010] FWAFB 3009” which ordered
that: “the proposed agreement covers operational employees from the rank of
“Assistant Chief Fire Officer”.”99
[83] The 2010 ACFO Agreement appears to be the first time that Assistant Chief Fire
Officers were covered by a formal workplace instrument, although in the absence of direct
evidence or submissions on the matter, I make no reliance on that proposition.
[84] The 2010 Operational Staff Agreement maintains the definition of consultation being
“the full, meaningful and frank discussion of issues/proposals and the consideration of each
party's views, prior to any decision”.100 Unlike the earlier 2002 and 2005 agreements, the
2010 Operational Staff Agreement does not explicitly gives a definition of change, although it
does require consultation in accordance with a prescribed process where “the employer
wishes to implement change in matters pertaining to employment relationship”.101
[85] In the 2010 Operational Staff Agreement, the processes formally referred to as EBIC
have been redefined as the MFB/UFU Consultative Committee (which is also the consultative
body dealing with consultation under the 2010 ACFO Agreement102). In the dispute
resolution clause, the broad 5 Step process for resolution of disputes has been maintained,
however the reference to the application of the “status quo” has been reinserted as follows;
“While the above procedures are being followed, including the resolution of any dispute
by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply
in accordance with the existing situation or practice that existed immediately prior to
the subject matter of the grievance or dispute occurring. No party shall be prejudiced
as to the final settlement by the continuance of work in accordance with this sub-
clause.”103
[86] In the 2010 Operational Staff Agreement, the provisions relating to uniforms and
equipment underwent substantial change. The clause no longer relates only to the supply of
uniforms and equipment together with requirement of employees to wear them, and the
obligation of the employer to replace when required. Instead, a much broader provision
applies as follows;
“88. UNIFORMS AND EQUIPMENT
88.1. The MFESB and UFU must agree on all aspects of the:
99 [2010] FWAA 7413
100 [2010] FWAA 7414, cl 13.1
101 Ibid, cl.15
102 Exhibit MFB 55, para 3; see also 2010 ACFO Agreement, cl.8
103 clause 19.4
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88.1.1. articles of clothing;
88.1.2. equipment, including personal protective equipment;
88.1.3. station wear; and
88.1.4. appliances;
to be used or worn by employees. ‘All aspects’ includes, without limitation, design
and specifications. This applies to new and replacement items.
88.2. The employer shall supply each employee and be responsible for the cost of
replacing, repairing and / or cleaning the articles of clothing and / or equipment that
must be worn and / or used by the employee.
88.3. The replacement, repairs and / or cleaning of the articles of clothing and
equipment will occur when reasonably required by each employee and / or when the
uniform or equipment becomes so soiled or damaged that it requires cleaning, repair or
replacement.
88.4. A plan of distribution of replacement items will be finalised within the life of the
agreement.
88.5. Further to the above, the MFESB will provide any employee who so requires
them prescription eye protection/safety glasses.
88.6. Further to the above, the MFESB will develop a rehabilitation solution for
personnel to deal with the anticipated thermal stress of new PPC and changing work
environment. Any such solution should be considered in the context of Clause 35,
Special Ops.”
6. THE HEARING
6.1 The scope of witness evidence and submissions
[87] The MFB brought forward 15 witnesses, each of whom presented witness statements
and were cross-examined;
1. Peter Rau – Chief Officer;104
2. Andrew Zammit - Acting Deputy Chief Officer;105
3. Margaret Wilson - Manager – Business Assurance;106
4. David Youseff - Deputy Chief Officer and Regional Director, North West
Metro Region;107
5. Craig Lloyd - Executive Director of Property and Assets;108
104 Exhibits MFB 7 and 8
105 Exhibits MFB 10 and 11
106 Exhibits MFB 12 and 13
107 Exhibits MFB 14 and 15
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6. Paul Stacchino - Deputy Chief Officer;109
7. Adam Dalrymple - Acting Deputy Chief Officer and Acting Executive
Director of Emergency Management;110
8. David Bruce - Acting Deputy Chief Officer;111
9. Andrew O’Connell - Commander;112
10. Darren McQuade - Commander, Regional Operations Coordination;113
11. Janette Pearce - Senior Consultant, Workplace Relations;114
12. Darren Davies - Assistant Chief Fire Officer and Director of Regional
Operations in North West Metro Region;115
13. John Jugum - Commander;116
14. Michael Werle - Director, Human Resources;117
15. Gregory Pearson - Acting Assistant Chief Fire Officer and Acting Executive
Manager Property Services.118
[88] On its behalf, the UFU brought forward witness statements from 71 professional
firefighters, two union industrial officers and two professional advisers, of whom the
following 22 were called to give oral evidence, with each being required for cross
examination;
1. Michael Walker - Assistant Chief Fire Officer;119
2. Ken Brown - Assistant Chief Fire Officer, and UFU Junior Vice President and
a member of the UFU Branch Committee of Management (BCOM);120
3. Michael Tisbury - Senior Station Officer, and member of BCOM;121
4. David Hamilton - Senior Station Officer and UFU President and member of
BCOM;122
5. Brendan Angwin - Commander, and member of BCOM;123
6. Danny Ward - Leading Firefighter, and member of BCOM;124
7. Christopher Cleary - Leading Firefighter, Preston, and member of BCOM;125
8. Robert Psaila - Leading Firefighter, and member of BCOM;126
108 Exhibit MFB 17
109 Exhibits MFB 18 and 19
110 Exhibits MFB 20 and 21
111 Exhibits MFB 22 and 23
112 Exhibits MFB 25 and 26
113 Exhibits MFB 27 and 28
114 Exhibits MFB 29 and 30
115 Exhibits MFB 31 and 32
116 Exhibits MFB 33 and 34
117 Exhibits MFB 35 and 36
118 Exhibits MFB 37, 38 and 39
119 Exhibit UFU 3
120 Exhibit UFU 6
121 Exhibit UFU 14
122 Exhibit UFU 16
123 Exhibit UFU 17
124 Exhibit UFU 19
125 Exhibit UFU 20
126 Exhibit UFU 21
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9. Casey Lee - Industrial Officer Manager;127
10. Rini Krouskos - Industrial Officer;128
11. Paul Riley - Assistant Chief Fire Officer;129
12. Alan Quinton - Assistant Chief Fire Officer, Preston;130
13. Christopher Watt - Assistant Chief Fire Officer, Burnley;131
14. Gregory Bawden - Assistant Chief Fire Officer/Director of Fire Safety,
Burnley;132
15. Mark Carter - Commander, Burnley;133
16. Mark Lyons - Commander, Sunshine;134
17. Edward Brizzio - Commander, Burnley;135
18. Daniel Gatt - Commander, Fitzroy North;136
19. Bradley Quinn - Commander, Eastern Hill;137
20. William Weir - Commander, Sunshine;138
21. Ross Trimboli - Commander, Eastern Hill;139
22. Phillip Taylor - Commander, Sunshine.140
[89] In addition to having had the benefit of observing the evidence of the above 37 people,
I take into account the witness statements of the remaining 51 operational firefighters and two
professional advisers (Professor Ian Gordon, Director, Statistical Consulting Centre,
University of Melbourne141 and Dr Francesca Litow, Adjunct Associate Professor of
Environmental Health Sciences at the Johns Hopkins Bloomberg School of Public Health,
Baltimore, USA142).
6.2 Disputes featuring in evidence and submissions
[90] Evidence was brought forward about numerous instances of either consultation about
proposed or implemented change, or disputes about initiatives progressed through various
stages of the dispute resolution procedure. The MFB summarised in its closing submissions
the topics on which evidence was called, listing 28 such matters143. Other matters were the
also subject of detailed evidence about consultation or change implementation, sometimes
with the matter first introduced into the evidential contest by the MFB and on other occasions
127 Exhibit UFU 23
128 Exhibit UFU 25
129 Exhibit UFU 27
130 Exhibit UFU 28
131 Exhibit UFU 29
132 Exhibit UFU 30
133 Exhibit UFU 31
134 Exhibit UFU 32
135 Exhibit UFU 33
136 Exhibit UFU 34
137 Exhibit UFU 35
138 Exhibit UFU 36
139 Exhibit UFU 37
140 Exhibit UFU 38
141 Exhibit UFU 46
142 Exhibit UFU 48
143 Exhibit MFB 55, Appendices D to FF
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by the UFU. For example, evidence was given about issues that arose over the years with
several property locations; the MFB’s marine fire response capability, the introduction of a
digital radio communications system; restrictions on the employment of new recruits into
classifications reflecting their experience elsewhere, instead of having to start again (“lateral
entry”). Some of the matters are plainly “disputes” within the meaning of the 2010
Agreements, whereas others are not, or it is disputed that they rise to that level. For the
purposes of convenience, the matters on which evidence was received or submissions given
and which are discussed in this decision, are collectively referred to as the “illustrative
matters”.
[91] Examination of the evidence presented about these matters leads me to group these
disputes in four ways for the sake of convenience; some of the disputes were about routine
managerial or public sector decision making; some related to decisions sought by the MFB in
relation to its property holdings; a third group went to operational fire fighting issues within
the MFB; and a fourth group appeared to be about the capability of the MFB to work with
other emergency services agencies (or “interoperability”).
Routine managerial or public sector decision making
[92] The illustrative matters about which evidence was given that related to routine
managerial or public sector decision making included;
endeavours originally commenced in 2011 to introduce MFBSafe144, which is
software used for recording health and safety exposures, incidents and injuries,
the consultation for which the MFB argues took several years to conclude and
only being finalised in early 2014;
the attempted introduction from 2011 of a Workplace Behaviour Training
Program145 that would provide employees with training on workplace respect
issues including discrimination, harassment and bullying, and which has not yet
been implemented;
a dispute originating in 2012 over the introduction of limits on personal internet
use146 and which was the subject of arbitration in 2013 by Commissioner Roe147;
a 2012 dispute regarding migration of the MFB’s computer operating system to
Windows 7148 with the MFB eventually implementing the system “one year after
consultation had originally commenced”149;
the proposed introduction in 2012 of Workplace Policies and Guidelines, being
“a suite of policies and guidance notes in relation to human resources matters
such as sick leave, annual leave, payroll processing, higher duties and employee
transfers (Polices and Guidance Notes) to address a lack of adequate equivalent
144 Exhibit MFB 55, Appendix O; Exhibit UFU 75, paras 424 - 427
145 Exhibit MFB 55, Appendix S; Exhibit UFU 75, paras 439 - 448
146 Exhibit MFB 55, Appendix M; Exhibit UFU 75, paras 411 - 417
147 [2013] FWC 4758
148 Exhibit MFB 55, Appendix V; Exhibit UFU 75, paras 466 - 474
149 Ibid, para 1
[2014] FWC 7776
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documents”. 150 For the reason that consultation is unresolved, the policies and
guidelines have not been introduced;
the 2014 consultation over introduction of the Greener Government Buildings
program151, aimed at assisting departments and agencies to reduce energy use,
water use and greenhouse gas emissions through provision of a Government cost
neutral loan to organisations to fund assessments on environmental impact152;
consultation over introduction of the initiative is incomplete, with the UFU
arguing that the anticipated costs savings are relevant to productivity153.
Property holdings
[93] The illustrative matters about which evidence was given that related to decisions
sought by the MFB in relation to its property holdings included an issue regarding relocation
of the Northcote fire station154; and the proposed refurbishment of the Eastern Hill Fire
Station155. Both matters arose during the term of the 2010 Agreements, and since agreement
could not be reached about resolution of the subject matter, neither project has progressed.
Operational MFB fire fighting issues
[94] The illustrative matters about which evidence was given that related to operational fire
fighting issues within the MFB included the following;
There has been a long running dispute, since about 2006, regarding the number of
appliance to attend bin fires in the Melbourne CBD156, with the MFB contending
that it is the only fire service in Australia to send two appliances to every bin
fire157;
Extensive evidence was given about the introduction by the MFB of new
Personal Protective Clothing (PPC) and a 2007-2008 inquiry conducted for the
Victorian Government by Judge Lewis, of the County Court, (the Lewis
Report)158, which was critical of the UFU about the tendering process for the new
PPC;
Consultation from March 2009 over new breathing apparatus and HAZMAT
appliances that took longer than desirable resulting in the appliances not being
completed until February 2013159; with the UFU attributing delay to a failure of
the responsible manager to initiate consultation;160
150 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
151 Exhibit MFB 55, Appendix J; Exhibit UFU 75, paras 392 - 397
152 Exhibit MFB 29, para 25
153 Ibid, para 46
154 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
155 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
156 Exhibit MFB 55, Appendix I; Exhibit UFU 75, paras 388 - 391
157 Exhibit MFB 27, para 175
158 Exhibit MFB 55, Appendix FF; Exhibit UFU 75, paras 561 - 583
159 Exhibit MFB 55, Appendix U; Exhibit UFU 75, paras 462 - 465
160 Exhibit UFU 75, para 462 - 465
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In 2009, the MFB wanted to change the model of Chinagraph Pencils161 it used;
such pencils are capable of writing on a variety of hard surfaces, including metal,
glass and plastic, such as a Breathing Apparatus entry board162, or the roll board
of an appliance163; in order to change the pencils, “the MFB had to obtain the
agreement of the UFU through the Vehicle and Equipment Committee under ...
2005 Agreement”164, about which the UFU argues;
“There was a proposal to change the type of pencil, there was a discussion about
it and the proposal was endorsed. There was no delay, or impediment.
It is a non-issue.”165
In 2009, the MFB commenced a Teleboom Replacement Project166, and settled
on an appliance used in New Zealand, called the “Telesquirt” or “Bronto” and an
order for the appliance was made in 2011. Shortly after the placement of an order
a grievance was raised in 2011 by the UFU about sufficiency of consultation;
since that time, the appliance has been delivered and has been “idle”167, and in
early 2014, “[n]o MFB firefighters were trained to operate the Telesquirt because
UFU agreement as required under the consultation provisions had not been
obtained to commission it”.168 The UFU argues about this matter “that the
consultative process is being used to try and satisfy the grievance raised by the
UFU about the deficiencies identified with the appliance. It was legitimate for
the UFU to raise concerns that it had about the safety of the appliance, which is
to be operated by its members”169;
In 2010 the MFB began a Ladder Platform Replacement project170, when it
ordered two new Bronto Ladder Platform appliances; in May 2011 a grievance
was initiated by the UFU claiming the MFB had not consulted; the appliances
were delivered in May 2012. Following delivery there have been numerous steps
taken to agree the commissioning of the appliances. In October 2012, a serious
safety problem was found when there was observed “a three metre gap between
the evacuation ladder on the cage and the ladder that was on the boom”171 and at
May 2014, the appliances were still not in use, although two additional ladder
sections had been delivered and the process of fitting the ladders is almost
complete172; the UFU submissions on this matter include;
161 Exhibit MFB 55, Appendix AA; Exhibit UFU 75, paras 531 - 533
162 Exhibit MFB 25, para 103
163 Exhibit UFU 75, para 531
164 Exhibit MFB 55, Appendix AA, para 1
165 Exhibit UFU 75, paras 532 - 533
166 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
167 Exhibit MFB 27, para 74
168 Exhibit MFB 8, para 98
169 Exhibit UFU 75, para 399
170 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
171 Exhibit MFB 27, para 110
172 Ibid, para 130
[2014] FWC 7776
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“The example does not assist the MFB. It shows in fact how consultation is able
to protect the safety of firefighters by identifying hazards at an early stage in
order that can be rectified before a risk is realized when equipment is used by
firefighters.”173
A dispute originating in 2010 about the development of a “Long duration
breathing apparatus training course”.174 One of the key issues was whether
employees who declined on medical grounds to swallow an ingestible pill to
monitor in real time their core body temperature would have access to the
training; the training course has had to be modified to run without the pill, with
the MFB arguing the money used to purchase the equipment has been wasted;175
In 2011 there were issues regarding Exercise Fudo176, being a large scale multi-
agency field deployment exercise designed to test operational readiness prior to
the fire season; the exercise has taken place in various forms since 2005 and an
event was scheduled for November 2011; shortly before the scheduled date, the
UFU notified the MFB of a grievance by the UFU, and as a result of which the
MFB “were effectively compelled to make changes that we otherwise wouldn't
have made to secure the agreement of the UFU to protect the event”177;
Following his observations at a significant grassfire at Westmeadows in January
2012, Mr Youssef, an MFB Deputy Chief Officer, considered there was a need to
devise and introduce a Fireground Accountability List (FAL) and associated
Fireground Accountability System T-card (FAST-card)178, being a spreadsheet to
identify who was on shift at any time. The UFU sought consultation and then
notified a grievance, which led to a conciliation conference before Commissioner
Roe, the result of which was a Recommendation issued by him179 that resulted in
the parties agreeing in March 2013 to the introduction of the FAL. Introduction
of the FAST-card was delayed, including because the UFU was concerned about
the GPS tracking functionality being used for disciplinary purposes and “full
implementation of the FAST-card with GPS capability was not achieved until
shortly before the hearing commenced in this matter.”180 The UFU argues about
this issue that;
“The software solution represented by Fast-Card was welcomed by both parties.
It was not controversial. Insofar as there was controversy about it, it was
confined to the potential for the GPS component to be utilized for disciplinary
purposes. The UFU can hardly be criticized for raising such an issue. The
MFB agreed to it and FAST-Card was implemented. There is evidence that the
173 Exhibit UFU 75, para 438
174 Exhibit MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
175 Ibid, para 6
176 Exhibit MFB 55, Appendix G; Exhibit UFU 75, paras 381 - 384
177 Exhibit MFB 25, para 74
178 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
179 C2013/3358, 20 March 2013
180 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
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trial without the tracking component impaired the application of the software
for the intended purpose.
The totality of the evidence on this subject demonstrates how, in this case, the
Operational Staff Agreement appropriately balanced the interests of employees
and management. What Mr Youssef does is to inject into his evidence criticism
of the UFU which obscures rather than reveals the workings of the Operational
Staff Agreement. The example does not assist the MFB.”181
In April 2012, a grievance arose about the MFB’s participation in a multi-agency
appliance display at Knox182; the grievance was lodged three days prior to the
display which effectively prevented the MFB’s participation as planned, about
which the UFU commented;
“The MFB’s complaint is that the UFU raised a grievance thereby invoking the
status quo and preventing it from undertaking the multi-agency drill with the
CFA in April 2012. However, as the MFB accepts, the UFU was concerned
about the number of appliances that were being taken from fire stations and
taken outside the Melbourne Fire District”.183
From mid 2012, the MFB sought to consult over a “Merlin Telemetry” trial184,
being a trial associated with an initiative to address OHS issues associated with
the MFB’s breathing apparatus system, and the Merlin Telemetry is a radio
transponder which transmits distress signals and information about how much air
time is left in a breathing apparatus set.185 The proposed trial led to an extensive
consultation over development of an associated training package, with the
consultation concluding only in August 2013, at which time it was decided that a
training package was not actually required; following this, the trial commenced
in October 2013.186 The UFU argues about this situation that;
“This is not an example of avoidable delay caused by consultation, it is an
example of a shared belief about the need for the proposal to be addressed by
the Training sub-committee that turned out ... to be incorrect. The consultative
process cannot be blamed for that.”187
In late 2012, the MFB developed a wildfire awareness drill session188 to enhance
firefighters’ understanding of how to respond to wildfire events; the session was
run in 2012 and 2013 and was then the subject in 2014 of advice from the UFU
of concerns and “to seek your confirmation that this matter will be progressed
through the consultation process”189, which meant the training was delayed;
181 Exhibit UFU 75, para 553 - 554
182 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
183 Exhibit UFU 75, para 379
184 Exhibit MFB 55, Appendix Q; Exhibit UFU 75, paras 434 - 438
185 Exhibit MFB 25, para 203
186 Ibid, para 235 - 238
187 Exhibit UFU 75, para 437
188 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
189 Exhibit MFB 25, at para 92
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In March 2013 a dispute arose about an order for a Pumper Tanker to be moved
from the Melbourne CBD Eastern Hill fire station to Sunshine North fire
station.190 In the ensuing dispute the MFB sought FWC orders on the ground that
the UFU action constituted industrial action, the outcome of which was the UFU
agreed to withdraw its grievance, and the tanker was moved to Sunshine.191 The
UFU argues the decision by the MFB for the transfer of the appliance was ill-
conceived and “made for entirely wrong reasons unconnected with operational
requirements”, neither satisfying the concerns of firefighters at the Sunshine
North Fire Station, or the concerns that fire cover in the CBD was being
diminished192;
In January 2014, a dispute arose regarding the commissioning of Mark V trucks
for Emergency Medical Response (EMR) heatwave response193; the MFB had
been requested by the State Emergency Management Team to provide greater
assistance with EMR activities as a result of a heatwave then being experienced
in Victoria; Mr Youssef’s evidence is that;
“In this meeting of the SEMT, Paul Holman, Operations Manager of
Ambulance Victoria (AV) raised concerns about a significantly
increased risk of cardiac arrest due to a forecast heatwave. AV was
concerned about the potential loss of life associated with an increased
incidence of cardiac arrest. Mr Holman said that AV would appreciate
any additional assistance that could be provided by the MFB to help
save lives.
The First Responder program aims to reduce the amount of time taken
to respond to life threatening emergencies involving cardiac arrest.
When a person experiences a cardiac arrest within Metropolitan
Melbourne, AV paramedics and MFB firefighters are dispatched
simultaneously to the patient. MFB firefighters are trained in the initial
management of life threatening medical emergencies. If they are the
first to arrive at the scene of the emergency, they will provide
emergency medical care until the ambulance paramedics arrive and take
over.”194;
“The MFB determined that the best and safest option was to use the
nine new Mark V pumper trucks in the MFB’s possession, but which
had not yet been put in commission. The pumpers were not in
commission due to a combination of protected industrial action by MFB
employees at the Thornbury Workshop (who are not covered by the
Agreements) and the refusal by the UFU to allow the pumpers to be
commissioned.”195
190 Exhibit MFB 55, Appendix T; Exhibit UFU 75, paras 449 - 461
191 Exhibit MFB 31, paras 56 - 58
192 Exhibit 75, para 451
193 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
194 Exhibit MFB 14, para 173 - 174
195 Ibid, para 177
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The UFU objected and the MFB commenced proceedings in the Fair Work
Commission pursuant to s.418 of the FW Act for orders associated with
unprotected industrial action, which matter was assigned to me. In the course
of those proceedings, the UFU agreed that it “would not take, encourage or
support any industrial action regarding the training on or use of the Mark V
pumpers”.196
In relation to this issue, the union notes there were concerns about the
safety of the Mark V appliances, which the MFB accepted required
rectification197 and that the reason the appliances had not been
commissioned by January 2014 was “management failures that were
fixed as a result of the consultative and disputes resolution processes in
the face of management’s view that the equipment was safe”198 and that
in relation to the “enhanced EMR proposal, the real issue in dispute was
Mr Youssef’s idea to deploy firefighters during the heatwave, in a way
that was unsafe”, and;
“It is clear on the evidence, that on the information available to the
UFU at the time that the proposal was raised there was strong and
legitimate basis for its to hold concerns about the safety of Mr
Youssef’s original proposal and the adequacy of firefighters’ training to
perform the work that Mr Youssef had in mind in the circumstances of
a heatwave. It was legitimate for it to act upon that information using
the processes of the Operational Staff Agreement. There is no evidence
that the UFU merely blocked the proposal for the sake of it.
The UFU argues an agreement was reached that balanced the concerns of
firefighters with the desire of the MFB to roll out its enhanced EMR
response, and that is what occurred. The disputes clause in the Operational
Staff Agreement enabled the dispute to be settled. This example shows how
the disputes clause is an effective means of resolving differences between
parties in an industry such as this, where firefighter safety is paramount and
reasonable minds will differ as to how they are to be satisfied.”199
An issue arising in 2014, regarding deployment of the “Telesquirt” appliance at
the Hazelwood mine fire200; the relevant appliance had been procured, but
because of a dispute with the UFU had been “idle”201; because of factors
associated with the Hazelwood fire, the MFB sought for the appliance to be used
at the fire, but with South Australian firefighters202;
196 Ibid, para 180
197 Exhibit UFU 75, para 509
198 Ibid, para 512
199 Ibid, paras 522 - 523
200 Exhibit MFB 55, Appendix H; Exhibit UFU 75, paras 385 - 387
201 Exhibits MFB 27, para 74; MFB 8, para 98
202 Exhibit MFB 22, paras 29 - 30
[2014] FWC 7776
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Evidence was given about an issue regarding the Operational Support Group
(OSG) and Fitness for Duty Project203, about which, the MFB submits;
“The operational support group (OSG) is comprised of operational employees of
the MFB who are unable to carry out the full functions of their role. The 2010
Agreement places limits around the extent to which members of the OSG can
be allocated to rostered duties and effectively provides that any such rostering
must only be to a limited number of positions previously agreed between the
MFB and UFU.
The MFB also wishes to improve its monitoring and compliance of the health
and safety of its employees through a new ‘Fitness for Duty’ project, which
would include a compulsory health and fitness test. This would lead to better
management of firefighters on OSG to avoid them remaining on OSG or being
unable to return to work without a clear expectation of returning to operational
duties. The current consultative arrangements would require the agreement of
the UFU prior to implementation of this project.”204
The UFU response to the MFB on this subject includes;
“There is no evidence of any actual impediment caused by any action on the
UFU’s part. The complaint is hypothetical.”205
[95] In addition to receiving evidence and submissions on these matters, there was
significant discussion of other operational firefighting matters that were the subject of
consultation or dispute between the parties. These included possible changes to the MFB’s
alarm response framework (known as GARS - the Greater Alarm Response System), together
with the potential shift to a new work allocation system through a yet to be finalised
Operational Readiness Chart; what was required in order to ensure proper response by the
MFB to marine or airport fires; and problems associated with the introduction of a digital
radio communications system around the time of planning for the 2006 Commonwealth
Games (referred to as the MMR project).
Interoperability
[96] The Victorian Emergency Management Reform White Paper206 refers to the benefits of
emergency services agencies working together and exchanging information, assets and
people. Within the context of the objective of improved agency collaboration, the White
Paper contains this sectoral reform objective;
“Victoria's emergency management governance arrangements will be reformed to
reflect the characteristics of contemporary emergencies. These arrangements will
clarify roles and responsibilities, generate stronger accountability mechanisms and
203 Exhibit MFB 55, Appendix Z; Exhibit UFU 75, paras 527 - 530
204 Ibid, para 1
205 Exhibit UFU 75, para 528
206 Victorian Government (Melbourne, December 2012) accessible at www.dpc.vic.gov.au
[2014] FWC 7776
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improve interoperability. They will require a behavioural shift and ongoing
commitment from all stakeholders to share responsibility for disaster resilience.”207
[97] Further, the White Paper elaborates with respect to interoperability that;
“Holistic, all-hazards emergency management planning engages all agencies, is
strategic, forward-looking, linked to funding, interconnected and operates at a state,
regional and local government level. It is a foundation for ‘improvements in
operational policy, standards, stronger coordination and greater interoperability and a
strengthened capacity to provide an integrated response.’ The planning process creates
opportunities to build partnerships and networks so effective communication,
coordination and collaboration between agencies is well established in the event of an
emergency.”208 (reference omitted)
[98] It is within the foregoing context that references to “interoperability” are made by the
MFB.
[99] Evidence was received on several disputes relating to interoperability matters
including the following;
a dispute regarding the loan of a Breathing Apparatus Pod to the CFA at
Bayswater;209
attendance of the MFB at an equipment display at the Bayswater CFA;210
deployment of MFB staff to, and their entitlements at, the Hazelwood mine
fire;211
an issue regarding updating Joint Standard Operating Procedures (JSOPs)212; this
issue connects with a need to develop and follow the JSOPs, through the Fire
Services Commissioner, with the MFB submitting;
“Following the Victorian Bushfires Royal Commission 2009 the Fire Services
Commissioner implemented a range of changes including implementation of
revised procedures and practices to ensure that bushfires and other emergencies
can be effectively managed by the emergency services in Victoria.
These procedures include the joint standard operating procedures (JSOPS)
which detail the resourcing of incident control centres at local, regional and
state level.
207 Ibid, contained within Exhibit MFB 18, p 70
208 Ibid, p 82
209 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
210 Exhibit MFB 55, Appendix N; Exhibit UFU 75, paras 418 - 423
211 Exhibit MFB 55, Appendix W; Exhibit UFU 75, paras 475 - 495
212 Exhibit MFB 55, Appendix X; Exhibit UFU 75, paras 496 - 506
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The MFB needs to update its own operating procedures and practices to align
them with State-wide JSOPs. A misalignment will undermine the MFB’s
service delivery.
Due to the difficulties of consultation under the 2010 Agreements, the MFB
has serious concerns about its ability to achieve this.”
In evidence, Mr Youssef explained that successful development of the JSOPs
would necessitate revised training packages and flexible delivery of training213
and that he apprehends a future problem on the subject, because “[m]y
experience is that due to the difficulties of consultation under the current
Agreements, the MFB has not been able to embed all aspects of the JSOPs in
the MFB’s work instructions and training programs.”214
The union’s response on this matter included that this issue did not relate to an
actual dispute and that he was speculating.215
[100] Within these illustrative matters, some are examples of initiatives that were the subject
of consultation and proceeded with, and some are examples where the initiative was
implemented after consultation. Many, but not all, of the examples above were the subject of
disputes between the MFB and the UFU, progressed under the 2010 Agreements’ dispute
resolution clauses. Other examples commenced or were wholly progressed under predecessor
agreements, with the MFB making the point that its experience with the consultation and
dispute resolution clauses in those agreements is, in effect, no better than its experience with
matters arising wholly under the 2010 Agreements and especially the 2010 Operational Staff
Agreement. This is notwithstanding the greatly expanded range of provisions in the 2010
Operational Staff Agreement over which consultation and agreement is required.
[101] Some of the illustrative matters related to corporate decision-making that would, in
many public sector workplaces, be considered routine or unremarkable.
7. CONSIDERATION
7.1 Introduction
[102] The FW Act sets out the means by which an application to the Commission may be
made for termination of an enterprise agreement after its nominal expiry;
“225 Application for termination of an enterprise agreement after its nominal
expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following
may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
213 Exhibit MFB 14, para 43
214 Exhibit MFB 15, para 11
215 Exhibit UFU 75, para 497
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(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.”
[103] No issue has been taken in these proceedings that the procedural elements of s.225
have not been met, and since it is consistent with the evidence I find;
each of the 2010 Agreements has passed its nominal expiry date; and
the MFB is an employer covered by each of the 2010 Agreements and is entitled
to make the application it has.
[104] Determination of the Enterprise Agreement Termination Application requires
consideration of the separate elements of s.226; of whether the Commission can be satisfied
that termination is not contrary to the public interest (s.226(a)); and whether the Commission
considers that it is appropriate to terminate the 2010 Agreements taking into account all the
circumstances, having regard to several sub-criteria (s.226(b)). The elements of s.226 are
conjunctive; that is, the Commission must be satisfied about both elements, and if not the
application will fail.
7.2 Is termination of either of the 2010 Agreements “not contrary to the public interest”?
[105] The MFB argue that continuation of the 2010 Agreements will impede its future
operations, as the content of the agreements has impeded its operations to date. It is argued
that while this is contrary to the public interest, that is not the dominant consideration and
that, rather, continuation of the 2010 Agreements is a factor that weighs heavily on the
Commission’s consideration of whether it is appropriate to terminate the agreements.
[106] The argument is also made that, in the current legislative and governance environment,
these features of decision-making have impeded, and will continue to impede, the
organisational effectiveness of the MFB. That environment includes legislation passed since
the Black Saturday Bushfires Royal Commission which endeavours to address the
recommendations made by the Royal Commission. Mr Youssef refers to the reforms in this
way;
“Post the 2009 Bushfires Royal Commission, the Fire Services Commissioner
implemented a range of changes including procedures to ensure that bushfires and
other emergencies could be effectively be managed.
Procedures and revised practices have been implemented to ensure that the State’s
finite fire and emergency services resources can be applied to maximum effect
whatever incidents that may occur within the State of Victoria.”216
[107] Mr Rau elaborated on the subject that;
“The reform program was instituted as a result of the findings and recommendations of
the 2009 Victorian Bushfires Royal Commission (Royal Commission) around changes
to deliver sustainable long-term community safety outcomes by:
216 Exhibit MFB 14, paras 35 - 36
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Building capacity and capability within the fire services and the community;
Achieving genuine interoperability between the fire services;
Increasing organisational and community resilience; and
Building safer communities.
...
The Victorian Emergency Management Reform White Paper released in December
2012 outlined a number of reforms, particularly in respect of achieving a collaborative
approach across the emergency management sector and including specific plans to
build on the Fire Services Reform Action Plan.
...
The Fire Services Reform Action Plan was built into the Fire Services Commissioner
Act 2010. Section 12 of the Act sets out the intended purpose of the plan as '(a)
enhancing the operational capacity and capability of fire services agencies; and (b)
improving the capacity of fire services agencies to operate together in planning and
preparing for the response to, and in responding to, major fires'.
...
The reform program, led by the Fire Services Commissioner Victoria (Craig Lapsley),
has meant that the MFB plays a significant part in building a combined capacity and
capability which, as a unified state resource, is made available to the communities of
Victoria. Significant efforts have been made to build genuine interoperability between
organisations within the emergency management environment and this fire season has
seen some positive steps forward.
Difficulties have occurred however in relation to my ability as Chief Officer to easily
and quickly make and enact decisions in relation to resource movements due to the
restrictions in the 2010 Operational Agreement and the implications of doing so
without reaching agreement.”217
[108] In summary, the MFB’s arguments in relation to the public interest are that public
interest is served by the MFB becoming more effective and more able to serve the Victorian
community through better responsiveness and greater interoperability with other emergency
service organisations. It is argued that the public interest is served by the MFB’s positive
contribution to the entire State, and not just the Metropolitan District. Such enhancements are
not contrary to the public interest.
[109] The MFB also argue that the Re AEU considerations raise a public interest, since the
provisions on their face attempt or limit the ability of the State of Victoria, through its
agencies, to operate as it wants to discharge its functions as a Government218. The MFB
argues that the public interest is served through reducing the uncertainty that presently exists
about the operation of the MFB agreements. The MFB has been under enterprise agreements
since 1999 and successive agreements have required consultation with employees about all
217 Exhibit MFB 7, paras 24 - 28
218 Exhibit MFB 55, para 17.1
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manner of things, and the scope of the required consultation has grown broader with
successive agreements. However, it is argued, the applied understanding of Re AEU, as laid
out in UFU v CFA casts significant doubt about the operability and enforceability of large
parts of the 2010 Agreements.219 While continued uncertainty might be contrary to the public
interest, the removal of uncertainty is not contrary to the public interest.
[110] The UFU put forward instead about the public interest that the MFB really wishes to
be free of what it sees as impediments to its managerial prerogative arising from the
consultation and dispute resolution clauses and the clauses said to infringe the principles in Re
AEU.220 The inherently dangerous work undertaken by firefighters means there is a strong
public interest in ensuring fair terms and conditions that reflect and support the nature of their
employment.221 The impugned Re AEU clauses also do not provide a proper basis for
termination, because they are of no legal effect, with there being less drastic avenues available
to the MFB to deal with them222. The changes that would be made to the relative bargaining
strengths of the parties because of termination of the 2010 Agreements mean there is a clear
and compelling public interest against granting the application.223
[111] The MFB submissions identified that the Federal Court held in United Firefighters'
Union of Australia and Others v Metropolitan Fire and Emergency Services Board that the
MFB Board is a trading corporation, within s.51(xx) of the Constitution and thereby a
constitutional corporation under the WR Act.224 The MFB submitted about its coverage by
the FW Act, that;
“(a) The FW Act operates in respect of the MFB and its employees which means, inter
alia, the bargaining regime, rights to take industrial action and agreement making
provisions apply;
(b) The application of the FW Act above is subject to the Melbourne Corporation
Principle which was applied to Federal Industrial laws and awards in Re AEU. This
prohibits Federal laws impairing the State’s capacity to function as a Government.”225
[112] The MFB’s reference to the Melbourne Corporation Principle is a reference to the
High Court’s decision in Melbourne Corporation v Commonwealth226, and as discussed in Re
AEU, an implication;
“ ... stated by Dixon J in Melbourne Corporation in these terms:
‘The foundation of the Constitution is the conception of a central government
and a number of State governments separately organized. The Constitution
predicates their continued existence as independent entities.’
219 MFB Outline of Submissions dated 15 May 2014, para 29
220 Exhibit UFU 75, para 49 - 50
221 Ibid, para 51
222 Ibid, para 57
223 Ibid, para 69
224 (1999) 83 FCR 346, at p 354
225 Exhibit MFB 55, para 4.7
226 (1947) 74 CLR 31
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His Honour went on to say:
‘(T)he efficacy of the system logically demands that, unless a given legislative
power appears from its content, context or subject matter so to intend, it should
not be understood as authorizing the Commonwealth to make a law aimed at
the restriction or control of a State in the exercise of its executive authority’.
His Honour described s.48 of the Banking Act 1945 (Cth) as a “law directly
operating to deny to the States banking facilities open to others, and so to
discriminate against the States or to impose a disability upon them”. In so
describing s.48, Dixon J found it to infringe the prohibition to be implied from
the Constitution against:
“a law which discriminates against States, or a law which places a
particular disability or burden upon an operation or activity of a State,
and more especially upon the execution of its constitutional
powers”.”227 (references omitted)
[113] In Re AEU, the High Court found that;
“It seems to us that critical to that capacity of a State is the government's right to
determine the number and identity of the persons whom it wishes to employ, the term
of appointment of such persons and, as well, the number and identity of the persons
whom it wishes to dismiss with or without notice from its employment on redundancy
grounds. An impairment of a State's rights in these respects would, in our view,
constitute an infringement of the implied limitation. On this view, the prescription by a
federal award of minimum wages and working conditions would not infringe the
implied limitation, at least if it takes appropriate account of any special functions or
responsibilities which attach to the employees in question. There may be a question, in
some areas of employment, whether an award regulating promotion and transfer would
amount to an infringement. That is a question which need not be considered. As with
other provisions in a comprehensive award, the answer would turn on matters of
degree, including the character and responsibilities of the employee.
In our view, also critical to a State's capacity to function as a government is its ability,
not only to determine the number and identity of those whom it wishes to engage at
the higher levels of government, but also to determine the terms and conditions on
which those persons shall be engaged. Hence, Ministers, ministerial assistants and
advisers, heads of departments and high level statutory office holders, parliamentary
officers and judges would clearly fall within this group. The implied limitation would
protect the States from the exercise by the Commission of power to fix minimum
wages and working conditions in respect of such persons and possibly others as well.
And, in any event, Ministers and judges are not employees of a State.”228
[114] The factors decided by the High Court were considered in detail by the Full Bench in
the Parks Victoria matter;229
227 (1995) 184 CLR 188, at [42]
228 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, at 232, per Mason CJ, Brennan, Deane, Toohey,
Gaudron, McHugh JJ
229 Parks Victoria v The Australian Workers' Union and others [2013] FWCFB 950
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“[294] The Commission does not have jurisdiction to include in the workplace
determination any terms (agreed or otherwise) which pertain to an excluded subject
matter. To the extent that an agreed term deals with an excluded subject matter (within
the meaning of s.5 of the Referral Act), s.267(2) has no valid operation. This is
because the Referral Act is the sole source of the Commission’s power in these
proceedings and, as Fullagher J. said in Australian Communist Party v The
Commonwealth,:
“... a stream cannot rise higher than its source.”
[295] The primary issue for determination is whether the impugned clauses deal with
any excluded subject matter. In essence this involves the proper characterisation of the
impugned clauses and an assessment as to whether they deal with excluded subject
matter. The industrial merit of the impugned clauses is irrelevant to this task. Parks
Victoria also advances an alternate submission based on the proposition that the
matters proscribed by the High Court in Re AEU may be broader in scope than the
excluded subject matter in s. 5(1)(a). ...”230
[115] In UFU v CFA, a matter decided by the Federal Court in 2014 with some obvious
connections with the issues in consideration in this matter and presently under appeal,
Murphy J provided a useful elaboration of the principle;
“103 It is uncontroversial that the CFA is an agency of the State of Victoria. Broadly,
the CFA submits that clauses 26, 27, 28 and 122 of the Agreement are invalid and
unenforceable by reason of the Melbourne Corporation principle. The CFA submits
that the impugned clauses of the Agreement infringe the Melbourne Corporation
principle as described in Re AEU.
104 The Melbourne Corporation principle is derived from the federal structure of the
Constitution. The classic formulation of the rule describes a limitation on the
legislative power of the Commonwealth consisting of two elements. In Re AEU at 231
the majority, comprised of Mason CJ, Brennan, Deane, Toohey, Gaudron and
McHugh JJ, described the limitation as:
... (1) the prohibition against discrimination which involves the placing on the States
of special burdens or disabilities (“the limitation against discrimination”) and (2) the
prohibition against laws of general application which operate to destroy or curtail the
continued existence of the States or their capacity to function as governments.
(Citations omitted.)
105 The rule has sometimes been expressed differently and in Austin v Commonwealth
of Australia Gaudron, Gummow and Hayne JJ explained that there is “but one
limitation, though the apparent expression of it varies with the form of legislation
under consideration”.
230 Ibid, at [294] – [295]
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106 In Re AEU the High Court held that a federal industrial award (made under a
predecessor to the FW Act) that impaired the capacity of a state government to
determine the number and identity of state government employees and/or the number
and identity of such employees to be made redundant, curtailed the state government’s
capacity to function as a government and thereby infringed the implied limitation.
...”231 (references omitted)
[116] Murphy J then determined certain clauses of the CFA Agreement232 were invalid,
because of his application of the law, together with certain concessions on the part of the
UFU;
“133 I have some difficulty in treating the implied constitutional limitation as applicable
to industrial agreements that are bona fide voluntarily entered into by a state party and
which may therefore have no practical impact on a State’s capacity to govern.
However, in my view the Melbourne Corporation principle as expressed in Re AEU
applies to an enterprise agreement approved by the Commission, whether or not it is
voluntarily entered into by the state party. Given the UFU’s concessions that cll 26,
27, 28 and 122 of the Agreement are terms of the type described in Re AEU¸ they are
invalid and cannot be enforced.”233
[117] Relevant for the purposes of this decision is that the decision in UFU v CFA records
the clauses found to be invalid deal with the following subject matter;
“...
(e) contracting out and the maintenance of various employment classifications (cl 26);
(f) safe staffing levels (cl 27);
...
(h) secondment and lateral entry (cl 28);
...
(j) lateral entry (cl 122)”234
[118] The arguments in respect of the implied Constitutional limitation set out in Re AEU as
they connect with the statute in s.226(a) are arguments that it would not be contrary to the
public interest to terminate the 2010 Agreements because significant uncertainty of important
instruments would be removed. Plainly, the situation in this matter is distinguishable from
that faced by the Full Bench in Parks Victoria. In this matter the task is not to consider what
should be in an instrument, but rather whether the existence of material that might be
considered by a Court to be beyond the power of the Commission to have made creates
231 United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17, at [103] – [106]
232 The decision concerns the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Enterprise
Agreement 2010, approved by the FWC on 21 October 2010
233 [2014] FCA 17, at [133]
234 Ibid, at [10]
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uncertainty, the removal of which, along with all other matters contained in the instrument,
would not be contrary to the public interest.
[119] In all, I consider a somewhat unpersuasive line of logic the argument that since certain
parts of an instrument may be found to be invalid lends weight to an argument for the
termination of either of the 2010 Agreements .
[120] The Commission does not have the power to remove the content of the 2010
Agreements that conflicts with the Re AEU principle and plainly the totality of the 2010
Agreements was, in 2010, asserted by the MFB on the basis of the advice available to it at that
time, to be within the power of the Commission to make. No doubt there is now uncertainty
and removal of the invalid content at such time as either agreement is re-made would be in the
public interest; however the fact that the content of the agreements is much wider than the
impugned provisions identified means that termination of the 2010 Agreements for reason of
uncertainty amounts to a remarkably blunt and inefficient instrument. Good and effective
content would be terminated as much as the impugned. In the context of this matter, this too
is a factor pertaining to the public interest.
[121] The Commission has acknowledged in Re Tahmoor Coal in the context of the same
statutory provision as currently under consideration that “the public interest involves
something distinct from the interests of the parties although they may be similarly
affected”.235 This finding by Vice President Lawler follows that of an earlier Full Bench in
Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified
Agreement 2000, dealing with the legislative predecessor of s.226 that;
“While the content of the notion of public interest cannot be precisely defined, it is
distinct in nature from the interests of the parties. And although the public interest and
the interests of the parties may be simultaneously affected, that fact does not lessen the
distinction between them.”236
[122] The Full Bench was dealing with an application for the termination of an agreement
pursuant to the provisions of s.170MH of the WR Act, which at the time provided as follows
for termination of an agreement for reason of the public interest;
170MH Terminating a certified agreement in public interest after nominal expiry
date
(1) After the nominal expiry date of a certified agreement:
(a) the employer; or
(b) a majority of the employees whose employment is subject to the agreement;
or
(c) an organisation of employees that is bound by the agreement and that has at
least one member whose employment is subject to the agreement;
235 (2010) 204 IR 243, at [30]
236 (2005) 139 IR 34, at [23]
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may apply to the Commission to have the agreement terminated.
(2) On receiving the application, the Commission must take such steps as it considers
appropriate to obtain the views of persons bound by the agreement about whether it
should be terminated.
(3) If, after complying with subsection (2), the Commission considers that it is not
contrary to the public interest to terminate the agreement, the Commission must, by
order, terminate the agreement.
(4) The termination takes effect when the Commission’s order takes effect.
[123] Importantly, s.170MH does not make reference to the second test for termination now
set out in s.226(b) – that the Commission must consider whether it is appropriate to terminate
an agreement, as well as taking into account whether termination is not contrary to the public
interest. Since they deal with a different legislative base, it is recognised that the earlier
authorities on the subject need to be approached with care. In this regard, the UFU submitted
that the criterion in s.226(b) goes beyond considerations of public interest and poses a higher
threshold for allowing a termination.237
[124] The MFB’s submissions in relation to public interest referred to six criteria238 distilled
from the discussion of the Full Bench in Re Kellogg Brown and Root; Justice Boulton in Re
Mr Thorley Operations239; and Vice President Lawler in Re Tahmoor Coal Pty Ltd240;
(a) effect on parties to the agreement;
(b) the statutory scheme for the making and observance of agreements;
(c) conduct and progress in bargaining;
(d) the need to ensure the efficient and viable operation of the enterprise;
(e) the problems relating to the continued operation of the agreement;
(f) provisions of the agreement dealing with its renewal and/or termination.
[125] The MFB noted that such a list needs to be approached with caution since it is a mix of
private interests and “the public interest”.241 The UFU noted the genesis of these
considerations was the consideration of Boulton J in Re Mt Thorley Operations.242 Four of
the above elements were direct considerations in that matter243, and the remainder were
considerations elsewhere in the decision.
237 Exhibit UFU 75, para 42
238 Exhibit MFB 55, para 7.5
239 (1999) Print S0542
240 (2010) 204 IR 243
241 Exhibit 55, para 7.6
242 (1999) Print S0542, at [41]
243 Ibid, at [41], see elements (b), (d), (e) and (f)
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[126] The matter of Energy Resources of Australia Ltd v Liquor, Hospitality and
Miscellaneous Union244 (ERA v LHMU) is also an agreement termination decision of the
Commission under the current legislation. In considering the question of the public interest,
Vice President Watson noted that the LHMU raised objections against the application “on a
range of grounds concerning the undertakings, the effect of termination, the ongoing utility of
the Agreement and the prospect that the terms of AWAs would be effectively forced on
employees who had consistently rejected them over many years”.245 His Honour considered
that these were not matters that would;
“... lead to the conclusion that it would be contrary to the public interest to terminate the
agreement. The matters raised are legitimate interests of the employees and should
properly be considered as such. However they do not attract the public interest. There
is nothing that affects the public as distinct from the interests of the employees directly
concerned. I therefore find that terminating the agreement is not contrary to the public
interest.”246
[127] Deputy President Sams in SDV (Australia) Pty Ltd247 saw a connection between the
public interest and the views of the parties, noting that, in relation to the “clear statutory
provisions, no one single factor has primacy over the others”.248 His Honour noted with
approval the findings of Munro J (in relation to the provisions in the former WR Act), that the
concept of public interest is often difficult to apply, depending as it does on the assessment of
abstract considerations and values; and that while an individual interest may have an
overlapping public interest dimension, the public interest is not derivative from individual
interests: per Joy Manufacturing Co Pty Ltd - re Joy Mining Machinery (Moss Vale Site)
Certified Agreement 1998 [2000] AIRC 335, at [33]-[34].
[128] Successive agreement termination decisions of the Commission have had regard to the
Objects of the Act in forming views about the public interest. The Full Bench in Re Kellogg
Brown and Root considered that; “[t]he notion of public interest refers to matters that might
affect the public as a whole such as the achievement or otherwise of the various objects of the
Act, employment levels, inflation, and the maintenance of proper industrial standards.”249 In
Re Tahmoor Coal, Vice President Lawler held the following;
“The objects of the FW Act are clearly relevant to a judicial exercise of the power in s
226. If termination will promote the objects then that is a material factor in favour of
considering termination appropriate and if termination will work against the objects
then that is a material factor against considering termination appropriate.”250
[129] Commissioner Roe developed this reasoning in Royal Automotive Club of Victoria;
[21] Secondly, Section 226 concerning the termination of agreements is found in Part
2-4 of the FW Act which deals with Enterprise Agreements. The legislative scheme
244 [2010] FWA 2434
245 Ibid, at [13]
246 Ibid, at [14]
247 [2013] FWC 5385
248 Ibid, at [35]
249 139 IR 34, at [23]
250 (2010) 204 IR 243, at [46]
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and objects of the Act and the objects of Part 2-4 in particular in this respect are quite
different from the WR Act. Part 8 of the WR Act which dealt with Workplace
Agreements did not have separate objects. The FW Act places a strong emphasis on
the objective of facilitating and enabling collective bargaining, bargaining in good
faith and the making of enterprise agreements. The termination of an agreement
without the agreement of all parties covered by the agreement must now be considered
in this context. It is clearly a public interest consideration under s 226(a) if the
termination of an agreement would be contrary to the objectives and scheme of the
legislation in respect to facilitating and encouraging bargaining and agreements. It is
also a context within which the interests of and effects on the parties should be
considered as required by Section 226(b).251
[130] In the same matter, the Commissioner also considered the decisions in Tristar252,
Cochlear253 and Total Marine Services Pty Ltd254, and decided;
“[26] In the Tristar case in 2007 the Full Bench followed the principles established in
the Kellogg Brown case quoted above. The Full Bench decided that there were not
sufficient public interest reasons to decline to terminate the Agreement despite the
demonstrable negative effect on employees and the strong opposition of employees
and unions to the termination of the agreement. The Full Bench accepted that the
failure by the employer to abide by the provisions of the Agreement concerning
renegotiation of the Agreement attracted public interest considerations but found that
the time when this had a real effect had passed in the particular circumstances of that
case.
[27] In respect to the Cochlear Agreement decision Commissioner Cargill also
followed the principles in the Kellogg Brown case quoted above and decided in 2008
that it was not in the public interest to terminate the Agreement and her decision was
upheld on appeal. There were three main public interest grounds in the Cochlear
Agreement matter:
If the Agreement were terminated the terms and conditions of the employees would
be governed by individual contracts of employment underpinned only by the five
minimum standards under the Workplace Relations Act 1996 Part 7.
Given that the majority of employees were female production workers from a non-
English speaking background the ability of these employees to bargain effectively
would be adversely affected.
The Agreement included a clause which required the agreement of the parties to
terminate it and it would not be in the public interest to allow a party to escape its
Agreement obligations.” (references omitted)255
251 [2010] FWA 3483, at [21]; see also Re Mt Thorley Operations (1999) 91 IR 184, at [42]; ERA v LHMU [2010] FWA
2434, at [18], [27]; SDV Australia Pty Ltd [2013] FWC 5385, at [37] – [42]
252 PR977415 and PR976734
253 PR982556
254 Print Q6511 (December 1999)
255 [2010] FWA 3483, at [26] – [27]
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[131] Having reviewed the development of the Commission’s considerations on the public
interest, Commissioner Roe discussed in Royal Automotive Club of Victoria the importance of
the objects of the FW Act to consideration of the public interest;
“[30] The changes to the legislation and in particular the Objects of the FW Act Clause
3 and the Objects of Part 2-4 Enterprise Agreements, Clause 171, are particularly
relevant to the public interest and make the considerations in the Cochlear case and the
Mt Thorley case of increased relevance. The provisions for the termination of
Agreements are to be found in Part 2-4 and therefore the objects in clause 171 as set
out below are of particular relevance.
“The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of
enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request
assistance; and
(iii) ensuring that applications to FWA for approval of enterprise
agreements are dealt with without delay.”
[31] There is now a general objective to “facilitate good faith bargaining and the
making of enterprise agreements” and hence where the termination of an agreement
would be contrary to this objective it is likely that it would not be in the public
interest. This is also repeated in the overall objects of the FW Act found in s 3(f).
[32] The general object of the FW Act s 3(e) is also relevant to the public interest in
considering termination of Agreements:
“(e) enabling fairness and representation at work and the prevention of
discrimination by recognising the right to freedom of association and the right
to be represented, protecting against unfair treatment and discrimination,
providing accessible and effective procedures to resolve grievances and
disputes and providing effective compliance mechanisms.”
[33] Where the termination of an agreement would have a significant effect on the
right of employees to be represented or achieving accessible and effective procedures
to resolve grievances and disputes then this would not be in the public interest.
[34] The general principles set out in the Kellogg Brown and Root decision quoted
above still apply. The previous cases together with the changed context created by the
new legislation suggest that the following factors are now particularly relevant to a
finding that it is not in the public interest to terminate an agreement:
Whether the safety net will be significantly undermined?
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Whether vulnerable employees will be affected?
Whether the objective of good faith bargaining and the making of agreements will
be harmed?
Whether the provisions of the Agreement itself in respect to renegotiation of the
agreement would be compromised as this would undermine the integrity of
bargaining and agreements?
Whether the right of employees to be represented and or have access to effective
dispute resolution procedures would be significantly affected?
Whether there are any specific circumstances concerning the impact on the
economy or the business, productive work, the maintenance of respect for
observance of the terms of agreements, fair industrial relations, or work and family
balance?”256
[132] Consideration of these decisions leads to the view that findings about the public
interest will invariably be situational, requiring consideration of the particular circumstances
of the agreement; the circumstances of bargaining; together with considerations about the
productivity or efficiency of the enterprise; and other factors, including the extent to which
continuation or termination of the agreement gives effect to the Objects of the FW Act, which
are set out in s.3;
“3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and
productive workplace relations that promotes national economic prosperity and social
inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are
flexible for businesses, promote productivity and economic growth for
Australia’s future economic prosperity and take into account Australia’s
international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum
terms and conditions through the National Employment Standards, modern
awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable
minimum wages and conditions can no longer be undermined by the making of
statutory individual employment agreements of any kind given that such
agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by
providing for flexible working arrangements; and
256 [2010] FWA 3483, at [30] – [34]
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(e) enabling fairness and representation at work and the prevention of
discrimination by recognising the right to freedom of association and the right
to be represented, protecting against unfair treatment and discrimination,
providing accessible and effective procedures to resolve grievances and
disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations
and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized
businesses.”
[133] Part 2 of the FW Act deals with various matters, with Part 2-4 dealing with enterprise
agreements, and includes the provisions dealing with termination of agreements, including
ss.225 and 226. That part contains its own Objects, set out in s.171;
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of
enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request
assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise
agreements are dealt with without delay.”
[134] In his decision in ERA v LHMU257 Vice President Watson made particular reference to
the object in s.3(a), relating to the objective of fair and flexible laws, promoting productivity
and prosperity, finding that it is clear that enterprise agreements are intended to apply for a
limited period;
“The Legislative Scheme
[24] In my view this is an important consideration. Enterprise bargaining lies at the
heart of the workplace relations system and has done so since the early 1990s.
Enterprise instruments have had different titles and have been subject to different
rules, but there is nevertheless consistency in many respects.
257 [2010] FWA 2434
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[25] Enterprise Agreements made and approved under the FW Act, Workplace
Agreements made under the WR Act, and Certified Agreements made under the
Industrial Relations Act 1988 have all been required to have a specified duration with
an upper limit on that duration.
[26] The prevailing legislative provisions have provided for the continuation of
agreements after their nominal expiry date subject to an ability to make application to
terminate the Agreement. Different tests have applied, some more limited than the
current provisions and some less restricted. It is clear that enterprise agreements are
intended to apply for a limited period and either be renegotiated, renewed, varied,
replaced, terminated or left unaltered depending on negotiations between the parties
and the operation of the legislative provisions.
[27] The primary object of the FW Act is to provide a balanced framework for
cooperative and productive workplace relations that promotes national economic
prosperity and social inclusion. The means by which this is to be achieved include
providing workplace relations laws that are fair to working Australians, are flexible for
business and promote productivity and economic growth and achieving productivity
and fairness through an emphasis on enterprise level collective bargaining.”258
[135] Vice President Lawler in Re Tahmoor Coal259 took a more expansive approach to the
question of the relevant objects, holding it was also relevant to take into account the object in
s.3(f) of the FW Act, for the achievement of productivity and fairness through enterprise
bargaining, as well as the specific enterprise bargaining object in s.171(a), which goes to the
objective of a simple, flexible and fair framework of collective bargaining in good faith, that
delivers productivity benefits. In this regard, His Honour held that;
“The objects in s 3(f) and s 171(a) are particularly relevant. They indicate that collective
bargaining in good faith for an enterprise agreement is the central way in which, in the
framework that has been established by the FW Act, productivity benefits are to be
achieved.
The object in s 171(b) is also clearly relevant. It emphasises that a key role of FWA is
to facilitate good faith bargaining and the making of enterprise agreements. This
suggests that that one of the effects of termination which should be considered is
whether termination will enhance or reduce the prospects of the parties concluding a
new agreement through bargaining.
The object in s 3(a) is advanced by a termination of an agreement where this would
promote productivity. However, the object in s 3(a) is expressed in general terms
whereas the objects in s 3(f) and s 171(a) are more specific. Given that principle of
construction that the specific overrides the general, this suggests that the emphasis on
promoting productivity (part of the object in s 3(a)) is primarily to be achieved through
collective bargaining in good faith (the objects in s 3(f) and s 171) rather than by other
means, such as termination of an expired agreement.”260
258 Ibid, at [24] – [27]
259 (2010) 204 IR 243
260 Ibid, at [49] – [51]
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[136] Vice President Lawler’s approach to consideration of the objects was followed by DP
Sams in SDV Australia261 and by Commissioner Roe in RACV262, in which it was also
observed about the context of objects with the public interest that;
“The legislative scheme and objects of the Act and the objects of Part 2-4 in particular
in this respect are quite different from the WR Act. Part 8 of the WR Act which dealt
with Workplace Agreements did not have separate objects. The FW Act places a
strong emphasis on the objective of facilitating and enabling collective bargaining,
bargaining in good faith and the making of enterprise agreements. The termination of
an agreement without the agreement of all parties covered by the agreement must now
be considered in this context. It is clearly a public interest consideration under s 226(a)
if the termination of an agreement would be contrary to the objectives and scheme of
the legislation in respect to facilitating and encouraging bargaining and agreements. It
is also a context within which the interests of and effects on the parties should be
considered as required by Section 226(b).”263
[137] In relation to the circumstances of the matters referred to above, previously decided by
the Commission under the FW Act;
The circumstances in ERA v LHMU includes an agreement that was almost 10 years
beyond its nominal expiry date and continued to cover only three out of 450
employees potentially covered by the agreement;264
The circumstances in Re Tahmoor Coal included bargaining for a replacement to two
agreements that were between one and two years beyond their nominal expiry date.
Around 200 employees were involved, and bargaining had been protracted, involving
more than 60 meetings for more than 18 months. There had been protected industrial
action and employer response action taken in furtherance of bargaining, together with
an application for bargaining orders and allegations of failures to bargain in good
faith.265
The circumstances in the RACV matter involved an agreement around six months
beyond its nominal expiry date that covered eight employees. The employer wished to
have the employment conditions for the employees covered by the agreement to be the
same as about 60 others who had their conditions drawn from a combination of a
Modern Award and common law contractual arrangements.266
SDV Australia concerned an application to terminate an agreement that had expired
slightly less than a year before the date of the decision. The company argued that the
union party to the relevant agreement covered only 8% of the workforce and that
261 [2013] FWC 5385, at [36] – [42]
262 [2010] FWA 3483, at [30] – [32]
263 Ibid, at [21]
264 [2010] FWA 3434, at [6]
265 Ibid, see [8] - [10], [12]
266 [2010] FWA 3483, see [2], [8], [11]
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employees were in favour of termination, although DP Sams rejected that aspect of the
submission.267
[138] The primary submissions of the MFB, and to a lesser extent the UFU, in relation to
bargaining for a replacement agreement are connected with the first consideration contained
in s.226, namely whether it is not contrary to the public interest to terminate the 2010
Agreements. The contention is made by the MFB that, notwithstanding the caution in Re
Tahmoor Coal that “that it will generally be inappropriate for FWA to interfere in the
bargaining process so as to substantially alter the status quo in relation to the balance of
bargaining between the parties”268, the circumstances of the MFB are such that termination of
the agreements is, in this case, not inappropriate.
[139] In favour of a finding that termination of the 2010 Agreements is not contrary to the
public interest is that their termination would remove significant uncertainty stemming from
the implied constitutional limitation flowing from Re AEU. On the face of the 2010
Agreements and on the basis of the decision of Murphy J in UFU v CFA, the clauses of the
agreements dealing with contracting out, staffing levels, secondment and lateral entry may
well be unenforceable. The evidence records some views of the UFU on some of these
matters, especially as to minimum crewing levels and lateral entry, and it is likely the UFU
would resist change if approached to agree to change current practices or arrangements.
Termination of the 2010 Agreements would alleviate this problem for the MFB which would
in turn have the benefit of allowing efficiencies to be introduced, noting that the scale of such
efficiencies is not dealt with in the evidence.
[140] Termination of the 2010 Agreements is unlikely to work against the general objects of
the FW Act, set out in s.3, and in some respects termination might promote the objects.269
Some of the objects in s.3 have greater relevance to the evidence and submissions than others;
termination of the 2010 Agreements appears to have a neutral effect in relation to the objects
in ss.3(a) and (b), and would not give rise to statutory individual employment arrangements
and so therefore not offend s.3(c). There is no evidence that termination would work against
employees balancing their work and family responsibilities through any reduction of flexible
working arrangements, and neither would termination promote those objectives (s.3(d)).
Similarly there is no evidence which would suggest that termination would work against, or
promote the rights to representation or the freedom of association or freedom from
discrimination allowed for in s.3(e). While termination of the 2010 Agreements is unlikely to
impede productivity or fairness, being the objective in s.3(f), it may even assist that objective
even though termination would be moved away from enterprise–level collective bargaining.
Given the size of the MFB, a consideration of the object in s.3(g) regarding the special
circumstances of small and medium-sized businesses does not arise.
[141] In relation to s.171, which sets out the objects of part 2-4 of the FW Act relating to
enterprise agreements, the evidence does not suggest that termination would work against the
objects of s.171(a), dealing with the objective of “a simple, flexible and fair framework that
enables collective bargaining in good faith, particularly at the enterprise level”. With regard
to s.171(b), although termination, in and of itself, is unlikely to work against the objective of
good faith bargaining, I consider that for the reasons set out below, it is possible that
267 [2013] FWC 5385, see [1], [3], 48] - [49]
268 (2010) 204 IR 243, at [55]
269 Ibid, at [46]
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termination of the agreements may affect the relative bargaining positions of the parties in a
way that works against the making of a future enterprise agreement, noting that for the
reasons which are articulated below, I consider it more likely than not, that by the time of the
expiry of the undertakings proffered by the MFB a replacement Fair Work Instrument,
possibly an enterprise agreement although possibly not, will be in place for the affected
employees.
[142] It is, of course, also relevant to note that the section under which this Enterprise
Agreement Termination Application is made (s.225 Application for Termination of an
Enterprise Agreement after Its Nominal Expiry Date), is contained within Part 2-4 of the FW
Act. This being the case, it is reasonable to consider that not only are ss.225 and 226
constrained by the objects set out in s.171, but also that termination of an agreement for the
reasons set out in s.226 is contemplated by and consistent with the objects in the s.171.
[143] Against these propositions, which are generally in the direction of termination of the
2010 Agreements not being contrary to the public interest, is the finding made below that
termination of the 2010 Agreements would impact substantially on the relative bargaining
position of the parties.
[144] In addition, also potentially against a finding that termination is not contrary to the
public interest are the provisions of the 2010 Operational Staff Agreement dealing with the
renewal of the agreement. In that agreement, the parties, at the time of the making of the
agreements, firmly and unambiguously committed themselves that;
“The parties agree that this agreement shall remain in force until replaced by a new
agreement.”270
[145] The question of renewal of an enterprise agreement was also considered in ERA v
LHMU, although the published decision does not disclose whether the agreement in question
contained a clause such as that referred to above. The context of the decision includes an
agreement that was almost 10 years beyond its nominal expiry date and continued to cover
only three out of 450 employees potentially covered by the agreement.271 Vice President
Watson found the following in relation to renewal;
“[29] In my view it is unreasonable to lock such an agreement in place indefinitely. The
legislative scheme supports the ending of agreement obligations at or after the nominal
period of the agreement. Termination of the Agreement does not preclude further
enterprise bargaining. Regular revisions and renewal of enterprise arrangements is
desirable.
[30] I acknowledge the understandable concerns of employees at the loss of
entitlements. The loss of some employee entitlements is almost inevitable when an
agreement is terminated. In this case the undertakings given by ERA are not
insignificant. In my view the loss in this case is not such as to outweigh the other
factors which support the notion that a party to an expired agreement should be
entitled to withdraw from it.
270 Operational Staff Agreement, cl.4.1
271 [2010] FWA 3434, at [6]
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[31] The longer the time after expiry of the nominal term the stronger the case for
termination. This agreement passed its nominal expiry date almost ten years ago.
Where the continuation of the Agreement could have detrimental affects on the
operation and the level of consistency of terms and conditions of employment the case
for preventing termination is further diminished. I find that this circumstance exists in
this case.”272
[146] Further, in relation to this subject, it was held in Re Tahmoor Coal that while it is not
intended by the FW Act “that agreements should remain in place indefinitely and that it is
unreasonable to lock an expired agreement in place indefinitely”,273 that “this does not mean
that a party to an agreement has a prima facie right to have the agreement terminated merely
because the agreement has passed its nominal expiry date.”274
Summary - public interest
[147] Overall, termination of the 2010 Agreements is not contrary to the public interest.
Termination, in the context of these agreements, is not especially contradictory to the objects
of the FW Act set out in either s.3 or s.171; it potentially provides some benefit to the MFB in
respect of its productivity or performance; and it would, to some extent at least, overcome
some of the problems relating to the continued operation of the 2010 Agreements, both in
respect of how disputes are raised or progressed, as well as in respect of providing certainty in
relation to enforceability of the clauses the MFB contends are impugned as a result of the Re
AEU principles.
[148] In forming this view I have taken into account that the chief factor weighing in support
of the proposition that termination of the 2010 Agreements is contrary to the public interest is
the finding made below relating to the effect that termination would have on the relative
balance of the parties’ bargaining position. In the context of the matter argued before me, I
consider this issue to be more about the private interests of the parties, as between each other,
than it is about the public interest. 275 Notwithstanding that it was said by Lawler VP in Re
Tahmoor Coal that “it will generally be inappropriate for FWA to interfere in the bargaining
process so as to substantially alter the status quo in relation to the balance of bargaining
between the parties”,276 the context of that reference in the overall decision allows the view
that the statement was predominantly in relation to the appropriateness of termination, rather
than the statement being predominantly in connection with considerations of the public
interest.
[149] I therefore find that termination of the 2010 Agreements is not contrary to the public
interest.
7.3 Is termination of either of the 2010 Agreements appropriate?
[150] In forming a view about whether it is appropriate to terminate an agreement, the
Commission must take into account all the circumstances of the matter. Section 226(b)
272 Ibid, at [29] - [ 31]
273 (2010) 204 IR 243, at [54]; following ERA v LHMU [2010] FWA 2434, at [29]
274 Ibid
275 cf ERA v LHMU [2010] FWA 2434, at [14]
276 (2010) 204 IR 243, at [55]
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requires consideration be given to “all the circumstances” of the matter, with particular
reference to three different classes of stakeholder; namely the employees covered by the
agreement, the employer and any organisation of employees that is covered.
Appropriate to terminate; views of those covered
The MFB views
[151] The MFB’s view, as expressed by its witnesses, is that the 2010 Agreements should be
terminated. The grounds for the MFB witnesses’ opinions were invariably connected with
their experiences with consultation and disputes developed under the 2010 Agreements. In
summary, the collective view of the MFB witnesses summarises is that the 2010 Agreements
are holding the MFB back from achieving its potential because of the need for consultation,
and in particular the need to reach agreement about change before it can be implemented
[152] As an entity, the MFB expressed the view that it was appropriate to terminate the 2010
Agreements. To do so would benefit the organisation and the community; and the effect of
the undertaking given by the MFB was to provide appropriate safeguards for employees.
Views of the employees and the UFU
[153] On the other hand the employees giving evidence on behalf of the UFU took the view
that the 2010 Agreements should not be terminated. Termination of the 2010 Agreements
would affect their employment conditions and their ability to bargain. While it was argued
that employees’ safety would be compromised by termination, the evidence only partly
supported the proposition that termination would affect the ability to consult about genuine
safety issues under the framework of an instrument approved by the FW Act and did not
support the correlated contention that safety itself would be directly compromised. The
union’s view was similar to that of the employees.
[154] Oral evidence was received from 22 operational firefighters on behalf of the UFU, and
a further 51 operational firefighters provided witness statements only. A sample of the range
of views expressed by those witnesses about termination of the 2010 Agreements is set out
below (noting that this is by no means a comprehensive categorisation of the views or listing
of who referred to each topic);
A general statement of opposition to the application;277
The loss of trust and confidence by employees and the MFB;278
That termination of the agreements would be “damaging to the future MFB's
capacity for fire and emergency response in Victoria”;279
Concerns about a loss of particular conditions of employment;280
277 See, for example, Exhibit UFU 14, para 131; Exhibit UFU 35, para 7
278 Exhibit UFU 16, para 138
279 Exhibit UFU 29, para 26
280 Exhibit UFU 31, para 36; Exhibit UFU 43, para 21; Exhibit UFU 74, statement of Rebecca Locke, para 3
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A concern about the potential loss of access to a defined benefit superannuation
scheme in the event particular employees were declared to be non-operational;281
Loss of “the opportunity and confidence to improve skills and provide for career
development and to be remunerated at that higher level”;282
A concern “that the morale of the brigade would be adversely affected to a very
marked degree. A culture of suspicion and hostility is likely to pervade the
organisation and antipathy toward senior management and its authority is likely
to emerge. This will inevitably have adverse consequences for the operational
effectiveness of the organisation”;283
Concerns that safety may be compromised or that safety issues may not, in the
future, be adequately addressed;284
Concerns that changes to rostering may be disadvantageous, for example “the
10/14 roster where firefighters work 10 hour days and 14 hour nights at least
provides for certainty and we can plan for work life balance”;285
The apprehension that possible changes to minimum crewing arrangements may
be disadvantageous, not only for employees, but potentially more generally, with
the view expressed that; “[m]inimum crewing on the fire ground means a safe
system of work for Fire Fighters in protecting the Victorian Metropolitan
community. If there is no minimum crewing on the fire ground I believe that it
would put firefighters’ lives and the Victorian public’s lives at risk”;286
A concern about how ACFOs will fare with their agreement being terminated;
“The MFB's proposal to offer ACFOs in the current negotiations a percentage
pay increase substantially less than that of other operational staff leads me to
believe that ACFOs need the continued protection of the ACCFO Agreement”;287
The loss of relative bargaining position, particularly for ACFOs;288
Concerns about the continuation of that feature of minimum crewing that
routinely requires attendance of 7 firefighters at each structural fire;289
Implications of changes to the existing framework for consultation;290
281 Exhibit UFU 31, para 43; Exhibit UFU 6, para 79; Exhibit UFU 36, para 33
282 Exhibit UFU 74, statement of Michael Pratt, para 8
283 Exhibit UFU 3, para 41
284 Exhibit UFU 57, para 14; Exhibit UFU 68, para 8; Exhibit UFU 74, statement of John Topic, para 9; Exhibit UFU 74,
statement of Rebecca Locke, para 3
285 Exhibit UFU 34, para 12
286 Ibid, para 13
287 Exhibit UFU 28, para 24
288 Ibid, para 25
289 Exhibit UFU 27, para 3
290 Exhibit UFU 74, statement of Ian Porter, para 3; Exhibit UFU 27, para 3
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The potentially detrimental effect of the erosion of existing conditions.291
[155] The MFB noted that, in respect to the dichotomous situation of the MFB supporting
the termination while the vast majority of employees and the UFU did not, that;
“Such a circumstance cannot be unusual in the context of the FW Act. Agreements
almost inevitably contain benefits to employees in excess of those contained in modern
awards. Removal of such benefits is rather likely to be opposed. As was said in
Tahmoor at [44]: ‘usually, as here, a contested application will see the employer
wanting an expired agreement terminated and the employees and union (if any)
opposing such termination’.”292
[156] In addition to the views expressed by its witnesses, the UFU relied upon evidence of a
member survey about the MFB Termination Application, and a report about the same from
Professor Ian Gordon, Director, Statistical Consulting Centre, University of Melbourne293 to
demonstrate “the views of the employees ... covered by the agreement”. The survey was
conducted by email in August 2014, through an online survey tool which provided a unique
link to 1,305 UFU members, of whom 1,073 responded294. The distribution of emails to
1,305 members compares with a total of 1,866 full time operations employees shown in the
MFB Annual Report.295
[157] Four questions were provided in the survey, with a forced response option provided
for responses.
[158] The questions and “raw” responses were296;
Question one:
1,027 (96.1%) “strongly disagreed” and 27 (2.5%) “disagreed” to the
proposition that;
MFB has applied to the Fair Work Commission terminate the MFB
UFU Operational Staff Enterprise Agreement 2010 and the MFB UFU
ACFO Enterprise Agreement. The Fair Work Commission is required
to take in to account the views of employees in relation to the
application. How do you feel about having the applicable Enterprise
Agreement terminated?
Question two:
1,051 (98.2%) “strongly disagreed” and 8 (0.7%) “disagreed” to the
proposition that;
291 Exhibit UFU 33, para 31, Exhibit UFU 74, statement of John Topic, para 11
292 Exhibit MFB 55, para 20.2
293 Exhibit UFU 46
294 Exhibit UFU 23, para 10
295 Ibid, para 6
296 Ibid, para 11
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The MFB has said that if the Enterprise Agreements are terminated
your terms and conditions of employment will be covered by applicable
awards including the Fire Fighting Industry Modern Award and be
supplemented by an MFB undertaking. The Award contains minimum
conditions and does not include many of your current terms and
conditions. How do you feel about your terms and conditions being
reduced to the award minimum with an undertaking from the MFB?
Question three:
829 (77.3%) were “extremely satisfied” and 186 (17.4%) were “satisfied”
about the proposition that;
The MFB claims that the Enterprise Agreement is unworkable because
it requires consultation with the UFU about changes to your working
conditions. Currently the MFB must consult on all changes including
safety matters such as training, uniforms, equipment, trucks and
systems of work. How satisfied are you with the current requirement to
consult?
Question four:
1051 (98.2%) “strongly disagreed” and 48 (4.5%) “disagreed” to the
proposition that;
The MFB claims that the Enterprise Agreement is not sustainable
because it requires firefighters to undergo the recruit course and other
specified training to be employed and to achieve the various ranks. If
the agreement is terminated the MFB may employ people who have not
been through the recruit course or had the training and years of service
currently required. How do you feel about working on the fire ground
with other firefighters that have not undertaken the recruit training or do
not have the competencies and experience currently required?
[159] After noting that the wording of the survey is “entirely fair”, and seeking “an honest
and frank response from those surveyed”, and that the survey “does not use partisan language
to incline those invited to respond in one way or the other”, encouraging participation,
“without being unduly coercive”,297 Professor Gordon concludes that;
“In my view, the questionnaire itself is well designed. The wording of the questions is
careful, and conducive to clear and unambiguous responses. Most importantly, the
options for responses, in all four questions, are constructed "symmetrically" and cover
the full spectrum of possible views, from "strongly agree" to "strongly disagree"
(Questions 1, 2 and 4), or from "extremely satisfied" to "extremely dissatisfied"
(Question 3).”
[160] Professor Gordon also considered the possibility that those who responded may have
disproportionately strong views compared with those who did not, or who were not union
297 Exhibit UFU 46, p 10, item (g)
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members, causing a “response bias” to the responses. He tested the responses to Question 1
against a range of four alternative scenarios, allowing for the possibility that those who did
not respond, or were not invited to respond perhaps because they did not have an email
address or were not union members, might vote differently to those who did. His modelling
indicates that even with a scenario “at the extreme end of realistic response biases” (which he
refers to as scenario C), the raw responses for Question 1, in which 98.6% of respondents
either “strongly disagreed” or “disagreed”, would be attenuated downward no further than
81.6%;
“As I have said, the extent of likely response bias is ultimately unknowable and
therefore a matter for speculation. However, the scenario under "C" is, in my opinion,
at the extreme end of realistic response biases. It assumes that there is a marked
response bias in the non-respondents in the sample frame (80% rather than 99%),
where there seems no compelling reason to suspect any. It assumes a very strong
response bias in the rest of the population of interest (50% rather than 99%). Under
this scenario, as shown, a total of 1523 (82%) would be disagreeing or strongly
disagreeing with the proposition.”298
[161] The modelling he did for question 1 leads him to the view that it is unnecessary to
undertake the same for the other questions as well because the raw figures for the other three
questions are not materially different.299
[162] Professor Gordon’s report on the survey concludes;
“In my view, the survey I have been asked to comment on was well conducted,
according to principles of sound survey design. A good method of delivery of the
survey was used, the wording of the introductory material was fair and appropriate, the
questions themselves were clear and well-constructed in their allowable responses, and
the response rate in the survey was very high. It is obvious that an overwhelming
majority of UFU members hold the views discussed in this report, for each of the four
questions separately.
Because of the potential for some response bias, the percentage in the population of
interest that hold these views may be somewhat less, but, in any case, must be a very
clear majority for each question. We can be sure of this because the UFU members
who were able to be sampled make up a large fraction of the population of interest,
and the response rate achieved in the survey was very high.”300
[163] The MFB argued in relation to the survey, as well as more broadly about the veracity
of the employee witness statements that a “Litigation Update” bulletin circulated to union
members around 9 April 2014301 was “wrong and highly misleading” since it “asserted that it
was the MFB’s intention to reduce working conditions to the Modern Award”.302 This gave
rise to the potential that employees’ views, whether expressed through the survey or the
witness statements and evidence, might be prejudiced by the misleading information. The
298 Ibid, p 9
299 Ibid
300 Ibid, p 10
301 Exhibit MFB 51
302 MFB 55, para 20.5(c)
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litigation update includes, amongst other assertions, that the MFB Enterprise Agreement
Termination Application “would wipe out the enterprise agreements and leave firefighters
with only an Award of minimum conditions”303
[164] Questions were put to Mr Lee, from the UFU, in cross examination about who drafted
the litigation update, with Mr Lee not recalling his authorship or otherwise of the document.
This led to the MFB arguing, with reference to the rule in Jones v Dunkel304, that;
“The denials, uncertainties and lack of recall by Mr Lee are unsatisfactory evidence in a
case such as this. Plainly these documents were deliberately drafted by someone in the
UFU to create exactly the reaction they did, dealt with below. This really highlights the
absence of Mr Marshall305, who authorises all bulletins, and makes public statements.
In the absence of any explanation from Mr Marshall, the proper inference is that the
UFU consciously and deliberately misled its members about the effect of the
termination application with the intent of using their consequent reaction in these
proceedings to oppose termination. That is the proper inference to draw based on the
authorities.” (References omitted)
[165] While it is the case that the absence of a satisfactory explanation for evidence not
being called when a fact is in issue may lead to an inference that the evidence would not assist
the party who was in a position to call evidence, it is not the case that an inference could be
confidently drawn in the MFB’s favour about the failure to call Mr Marshall as a witness in
relation to the subject matter it draws in section 20 of its closing submissions, which deals
with the “Views of employees, each employer and each employee organisation”, and which is
the only part of its case in which it advances a request for findings adverse against the UFU
for the failure to call Mr Marshall as a witness. There is not a sufficiency of evidence
elsewhere in the material before me to conclude that the provision of evidence by Mr
Marshall would contradict or not assist other aspects of the UFU’s case in relation to either
the views of the employees or the union.
Summary - views of employees and the UFU
[166] I accept the results of the survey as being indicative of employee views and take them
into account. I also take into account the views of employees as expressed in the witness
statements and through oral evidence. There is little if anything in either that would lead me
to consider employees support the termination of the agreements, or that they would be likely
to support termination if somehow they were provided with different information about the
implications of termination.
[167] I therefore find that the views of employees and the UFU are against termination of
the 2010 Agreements.
Summary - views of those covered
303 Exhibit MFB 51
304 (1959) 101 CLR 298
305 The UFU Victorian Branch Secretary
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[168] Consideration of the views of those covered by the 2010 Agreements shows only that
the MFB views of support for termination are different from those of the employees and the
UFU, which are against them.
Appropriate to terminate; circumstances of those covered
[169] The argument is made that the consultation and “agreement-to-change” features of the
2010 Agreements slow decision-making, sometimes for years; shift decision-making away
from managers, for reason of the need to reach agreement over any change; or block
initiatives, sometimes at short notice. The MFB postulates that the requirement to consult, or
the expectation that a particular initiative will be subject to a dispute is not predictable. The
evidence indicates that some initiatives are not controversial from the point of view of
employees or the UFU, whereas others become controversial.
Circumstances of the MFB
[170] The circumstances of the MFB include that it is a statutory authority established by the
Victorian Parliament, now funded by a fire levy imposed on all property owners in Victoria.
It is an organisation that is expected to provide a greater contribution to the State’s emergency
services capability, and is required to operate productively and efficiently. The MFB Business
Plan 2013–2014 refers to these developments in several respects, with the MFB’s Chief
Executive (who did not give evidence in these proceedings) summarising the effect of these
circumstances thus;
“MFB is a key part of the emergency management sector reform process that is being
driven by the recommendations in the Emergency Management White Paper, the Fire
Services Commissioner’s Reform Action Plan and the introduction of the property
based levy for fire services.
These reforms combined with a tight fiscal environment and continuing socio-
demographic change across Victoria means that our organisation will need to
demonstrate agility and resourcefulness in the way we deliver our products and
services to Melbourne’s communities. MFB will ensure that these services continue to
be provided while actively participating in the sector reforms.
As sector reform continues and the outcomes of the various reviews into emergency
management are implemented, we will need to be prepared to critically review and
improve our organisational activity at all levels. Self-reflection, critical review,
continuous improvement and decisive action must be seen as ‘normal practice’.
The current reforms bring with them the opportunity for MFB to align its Vision and
Goals more closely to those of the sector. The MFB Board has proactively supported
this and so this year, MFB will adopt the Fire Services Commissioner’s purpose and
goals for the sector. This clearly demonstrates the MFB’s commitment to the
reform.”306
[171] Mr Rau’s evidence on the subject of sectoral reforms included that;
306 Exhibit UFU 8, p 2
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“The reform program was instituted as a result of the findings and Recommendations of
the 2009 Victorian Bushfires Royal Commission ... around changes to deliver
sustainable long-term community safety outcomes by:
Building capacity and capability within the fire services and the community;
Achieving genuine interoperability between the fire services;
Increasing organisational and community resilience; and
Building safer communities.”307
[172] The MFB Business Plan 2013–2014 also notes the organisation’s contribution to a yet
to be finalised Victorian Emergency Management Reform White Paper which sets the vision,
principles and strategic priorities for sector reform. The MFB notes its support for the
development and implementation of the White Paper anticipating that it will disclose 19
proposed actions required across the sector, and “acknowledges that there may be changes to
the way in which we will be required to operate into the future as a result of the plan”.308 The
Business Plan identifies external and internal factors “that will challenge MFB service
delivery”;309
External factors
An ageing population will drive an increase in emergency response requirements;
Developments in information technology are driving the public’s demand for
instant, accurate and local information regarding emergency warnings, which
places a greater emphasis on the need for robust telecommunication
infrastructure in a variety of forms;
Melbourne’s growth within the metropolitan district is being driven primarily
through new high rise development proposals;
The effective and efficient delivery of emergency services to events and the rapid
transport of injured or ill people to hospitals will become more difficult as
existing road networks become more utilised;
Increasing grassfire risk as the metropolitan area expands into the urban fringe
grassland areas. The grassfire in Cragieburn/Epping in February 2013 illustrates
that bushfire is not a rural risk but one that can occur within metropolitan
Melbourne;
The fragile economic conditions, both internationally and within Victoria that are
predicted to continue in the medium term;
Internal factors
307 Exhibit MFB 7, para 24
308 Exhibit UFU 8, p 5
309 Ibid, p 12
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An ageing workforce, with a significant proportion of the operational firefighter
workforce eligible for retirement within the next five years;
An emergency management sector in the midst of reform challenged by new
government direction and policy in relation to the Fire Services Commissioner
sector reform program and the Victorian Emergency Management White Paper;
“Ongoing requirements in relation to the role of MFB in emergency events
outside the metropolitan district. The 2012–13 summer fire season saw senior
MFB operational staff performing roles in the State Control Centre on high fire
risk days in support of the state response to fires. While this occurred previously,
this is likely to increase in the future;”
“A tight fiscal environment with greater transparency and accountability applied
to MFB budgets by Government, creating new challenges when allocating funds
against priorities. MFB will require strong, evidence based frameworks for the
creation and maintenance of its resources, along with well–defined targets,
measures and reporting processes.”
[173] Peter Rau, the MFB’s Chief Fire Officer, gave evidence that the operating
circumstances of the MFB included;
“The MFB's role is to deliver on its statutory requirements as specified in the
Metropolitan Fire Brigades Act 1958 ... as a professional fire service and emergency
service. The primary role of operations in the MFB is to respond to any calls for
assistance and deliver fire and emergency services to the Melbourne community.
A range of powers and obligations are also set out in the Metropolitan Fire Brigades
(General) Regulations 2005 ..., including in relation to promotion, fitness for duty, and
discipline. Regulation 12(a), for example, provides that an operational staff member
must not disobey or fail to carry out a general order or any lawful order given in the
course of his or her duty.
Regulation 11 provides that the ‘Chief Officer may issue to operational staff any
general orders he or she considers to be desirable’. General Order 1 was issued on 5
October 2006 and sets out when operational staff members, appliances and equipment
are required to respond to an ‘Alarm of Fire’. General Order 2 was issued on 5
October 2006 and deals with command at the scene of an ‘alarm of fire’. ...
The MFB employs more than 2,100 people comprising around 1,800 Operational
firefighters and 300 corporate staff, including trainees. Together, these employees
deliver the MFB’s services.
The MFB has on-shift capacity for 24 hours a day, seven days a week, 365 days a
year. The ... Operational Staff Agreement 2010 ... requires fixed operational staffing
across the brigade. These baseline operational staff consist of 270 operational
personnel located at 47 fire stations which work as service delivery points.
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The [Melbourne District] covers more than 1,000 square kilometres, and we protect
almost 4 million Melbourne residents, workers and visitors. ...”310
Circumstances of the employees
[174] Employees covered by the Agreements are often long-serving, with little experience
outside of the MFB. They see their work as critical to the community, but dangerous. Many
of the employees giving evidence had worked for the MFB for many years or even for the
whole of their working lives.
[175] Firefighters live and work together, often in ways that the rest of the community does
not. For example, rostering arrangements lead to firefighters sleeping and eating at their place
of work, and disagreements or disputes sometimes arise with the MFB about how best to cater
for those needs.311
Circumstances of the UFU
[176] The Union covers a small number of enterprises in Victoria. The UFU submitted
about its membership that;
“The MFB records in its 2012/13 annual report that it employs 1,866 full-time
operational employees. The UFU’s membership is 1,819 which represents 97% of the
MFB firefighter workforce. It has members in all MFB ranks from recruit to Assistant
Chief Fire Officer.”312
[177] In contrast to this statement about membership in the union’s outline of submissions,
Mr Lee’s witness statement records the UFU employee survey was sent to 1,305 members. 313
As a result, in the absence of direct evidence on the subject of actual membership, I find that
the union has at least the 1,305 members to whom the employee survey was sent and possibly
as many as the 1,819 asserted in the union’s outline of submissions. In any event, the
evidence and submissions show the union is inextricably involved in the welfare of its
members and the consultation and disputes that arise under the 2010 Agreements. The
evidence of its industrial officers included that in addition to the more significant matters that
might involve formal consultation or progression through the dispute resolution procedure;
“members will regularly come to us with individual concerns around issues such as
payment of a penalty, transfer between work locations, those sorts of individual run-of-
the-mill type disputes and I'd say that they are probably the majority of disputes.”314
[178] The UFU, notably, has members even at the most senior levels of the MFB, with
several Assistant Chief Fire Officers giving evidence on behalf of the union.
Summary - circumstances of those covered
310 Exhibit MFB 7, paras 10 - 19
311 See for example, Exhibit MFB 37, paras 49 - 53
312 Exhibit UFU 5, para 60
313 Exhibit UFU 23, para 10
314 Transcript, PN 9653
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[179] Having considered several aspects of the circumstances of the employees, each
employer and each employee organisation covered by the 2010 Agreements, I have formed
the view that those circumstances are a neutral factor; that is, the factors considered do not
resolve either in favour of termination, or against it. This is not a case of extreme
circumstances being faced by any party; such as one in which the circumstances of the
employer include likely closure if it cannot restructure its employment obligations; or one in
which employees’ prevailing conditions will not be protected through an undertaking; or one
in which the consequential loss of confidence of employees in their union will likely see the
collapse of the employee organisation.
Appropriate to terminate; likely effect of termination on those covered
[180] The argument is made by the MFB that termination of the 2010 Agreements will have
a major positive effect because the existing processes associated with consultation and
management of disputes will have been removed.
[181] The effect of termination on the MFB would be to remove the uncertainty about which
parts of the 2010 Agreements are not operable, and to remove the capacity of the UFU and
employees to block changes in the workplace. Coupled with this, a possible effect of
termination would be the improvement of the MFB’s capability and performance.
Notwithstanding this improvement for the MFB, the employees would be affected through the
removal of extensive consultation and agreement-to-change rights. Termination would also
likely significantly affect the employees’ bargaining position and, in the event that agreement
could not be reached for a new enterprise agreement before the expiry of the MFB
undertaking in 18 months time, employees’ wages and conditions of employment would
revert to the Modern Award. Termination of the 2010 Agreements would have the effect of
requiring employees during bargaining to recognise that disputed clauses could not simply be
“rolled over” to the next agreement, and that agreement-to-change provisions likely could not
be sustained.
[182] The effect of termination on the union would be a significant change to its bargaining
position. The union does not argue that termination would affect its members’ confidence in
the union, or their preparedness to remain members. The union would also face the effect of
the likelihood of needing to recognise that disputed clauses could not simply be “rolled over”
to the next agreement, and that agreement-to-change provisions likely could not be sustained.
[183] While the evidence indicates uncertainty exists about how the UFU or employees will
react, or why, the evidence does not lead to a finding that the uncertainty stems from
capriciousness on the part of union, or a deliberate campaign to refuse anything and
everything that might be sought by the MFB in the way of workplace change. The nearest
such a submission came to be made was questioning in cross-examination to David Hamilton,
a Senior Station Officer and UFU Branch President and member of the Branch Committee of
Management. Mr Hamilton was asked if he could recall a 2008 dispute regarding the
development and implementation of diversity training, and in particular a consultative
committee and the questioning developed in the following way315;
315 Extract from Transcript, PN 7517 - 7538
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“I’m happy to show you the minutes, Mr Hamilton. That’s where Mr Marshall turned
up and said in respect of diversity training MFB’s going to get jack shit. Remember
that?---I’d be happy to see the minutes if you have them.”
“The UFU advised they would provide an alternative proposal. You remember they
never did that, did they?---I don’t remember.
“UFU indicated they will not support this matter until hard data is received.” “PM” - so
if you go back to the start of the meeting, Peter Marshall was in attendance. He said,
“MFB will get jack shit and nothing will happen for the next three years.” Do you
remember him saying that?---I don’t remember him saying those words exactly, but
I’m sure - there were discussions, yes.
Do you remember being me - - -?---Robust discussion, I guess.”
“I think this is cross-examination of you and I think I asked you about this document,
and I read to you at 399, "'The UFU indicated they will not support this matter until
hard data is received.' PM, that's Peter Marshall, isn't it?" "That's correct"?---I assume
so, yes.
I'm just reading you a transcript and are you - - -?---Sorry, yes.
Do you remember saying that under oath?---Obviously I did, yes.
To read the next part, "'Stated that the MFB will get jack shit.' Do you remember him
then using those words?" You said, "Words to that effect, yes." And I asked you, "He
used those words, didn't he?" "Yes." "'And nothing will happen for the next three
years.' He said that, didn't he?" "Yes"?---Yes.
Right, and that's the evidence you gave, you gave it under oath and it's all true?
---Yes.
Commissioner, I'm not going to tender that. I think the commission will have enough
exhibits and the relevant parts have been read on the transcript.
THE COMMISSIONER: Thank you.
MR PARRY: That's not a particularly cooperative attitude to the consultation
process, is it?---Generally, that's - generally, the consultation process runs reasonably
smooth.
Well, it's a pretty serious thing to say, "You'll get jack shit for three years," isn't it,
from the state secretary to the MFB in a consultation process?---There was some
emotion attached.”
[184] Connected with these questions is the MFB’s Closing Submission on the subject
which characterises the proposition, not as a unilateral close-down of any and all consultation,
or of consultation becoming a device of the union for a collateral purpose, but instead of it
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being an example of problems associated with the consultation process, namely the “offensive
and aggressive use of the veto power – the MFB will get ‘jackshit’.”316
[185] The MFB submits the following with respect to the Commission’s consideration of the
likely effects of termination;
“The reference to ‘likely effect’ means just that – not speculation or exaggerated
predictions based on worst case scenarios. Into this assessment will come the
undertakings of the MFB and the terms and conditions they preserve.”317
[186] For the purposes of convenience, the likely effects of termination may be grouped into
several broad categories;
changes to conditions of employment;
change in the consultation framework and dispute resolution procedure;
changes to the parties’ bargaining position;
potential consequential changes for the MFB, such as to its performance or
productivity;
potential consequential changes for employees, such as for their safety at work;
changes for the UFU.
Likely effect of changes to conditions of employment
[187] Most obviously, termination of the 2010 Agreements will have the effect of changing
the terms and conditions of employment of the employees, and the MFB as their employer.
Termination of the agreements would, if not for undertakings provided by MFB, have the
result of operational employees’ terms and conditions reverting to those provided by the
combination of the Modern Award, the Fire Fighting Industry Award 2010,318 and the
National Employment Standards. In the case of ACFOs and Commanders, the union
contended in its initial submissions that neither group of employee is covered by the Modern
Award,319 and so their conditions would, if not for the undertaking, revert to being sourced
from the National Employment Standards. In respect of Commanders, the MFB argued that
“there is a Commanders Award which covers Commanders who were appointed as Inspectors.
This is currently being modernised by the Commission”.320 Because of the circumstances of
the MFB and its employees, State legislation would also apply in place of certain provisions
of the 2010 Agreements; for example the OHS Act or the Accident Compensation Act 1985
(Vic).321 In time, an effect of termination of the 2010 Agreements, and in the absence of new
316 Exhibit MFB 55, para 32.3
317 Exhibit MFB 55, para 21.1
318 MA000111
319 Exhibit UFU 5, para 71; also Exhibit UFU 75, para 52
320 Exhibit MFB 55, para 9.9; see also Exhibit MFB 2, tab 7, Metropolitan Fire and Emergency Services Board, Commanders
Interim Award 2002, AP839447
321 See for example Exhibits MFB 5, cl.25; 29; MFB 55, para 32.7;
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enterprise agreements on terms substantially different from the provisions of the Modern
Award, would be for employees to have terms and conditions of employment that would be
markedly different from present.
[188] In its initial submissions, the UFU put forward that termination of the 2010
Agreements would “cast most firefighters back to the inferior minimum award conditions” of
the Modern Award322 which was inconsistent with s.8 of the Public Administration Act 2004
(Vic) which applies to the MFB and which obliges the MFB Chief Executive Officer to
establish employment processes ensuring “public sector employees (firefighters in this case)
are treated fairly and reasonably”323 The MFB’s reply submissions on this contention, in the
context of submissions dealing with s.226(b), included that;
“... there is no reason why terminating an agreement containing over-award conditions
results in employees being treated unfairly or unreasonably.
The immediate legal effect would be that the majority of employees would fall back to
coverage by the Modern Award. In [Re Kellogg Brown and Root], a similar situation
prevailed. This would almost inevitably happen in the current industrial environment,
in existence when the FW Act was passed.”324
[189] The union submits in relation to the point at which employees would revert to the
provisions of the Modern Award;
“Simply stated, the likely effect on employees will be the loss of agreed terms and
conditions of employment contained in a legally binding instrument. In substitution
therefor, the MFB undertakes to provide for a limited time, a selection of the existing
agreements terms and conditions those that suit it together with a number of other
terms and conditions which are inferior to the current terms and conditions.
Once the Agreements are terminated they cannot be restored and accordingly, when
the undertaking expires, the employees previously covered by the Agreements will be
covered only by the relevant modern awards, except for Commanders not covered by
the Metropolitan Fire and Emergency Services Board, Commanders Interim Award
2002 and Assistant Chief Fire Officers who are award free. Irrespective of one’s view
about the benefits or detriments of the undertakings ...there can be no doubt that the
ultimate outcome would be seriously detrimental to the firefighters to whom the
Agreements apply.” (references omitted)325
[190] Undertakings have been provided by the MFB to the Commission about what will
happen to employees’ terms and conditions in the event of termination of the 2010
Agreements. A separate undertaking has been given for each of the two 2010 Agreements.
The undertakings are lengthy documents and are accompanied by a summary document.
Originally proffered as undertakings with a duration of 12 months from the time of
322 Exhibit UFU 5, para 32
323 Ibid, para 31
324 Exhibit MFB 55, paras 9.2 – 9.3
325 Exhibit UFU 75, para 97 – 98; in relation to Commanders, the UFU notes Commanders who held the position of the now
defunct rank of Inspector are covered by the MFB Commanders Interim Award 2002 in which a modernisation
application is reserved.
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termination of the agreements, the MFB amended the duration of the undertakings to 18
months during the course of proceedings, which amendment followed concerns expressed by
a number of UFU witnesses.326 The MFB says about the undertakings that they are;
“... comprehensive undertakings, operating on top of the Modern Award, which ensure
fairness and reasonableness to all employees, not only to those covered by the Modern
Award. In the period of the undertaking, assuming no agreement is reached, the UFU
and employees have all their options open to them, including taking industrial action to
put pressure on the MFB to achieve their goals.”327
[191] So far as is relevant, the summary to the undertaking to apply to employees under the
2010 Operational Staff Agreement, provides;
“2 Should the FWC terminate the Operational Staff Agreement, the MFB undertakes to
do the following from the time of termination:
(a) Maintain all terms setting out monetary entitlements, in the form set out in
the Operational Staff Agreement. This includes wages and all allowances;
(b) Continue to roster the operational workforce in accordance with the
practices applicable at the time of termination;
(c) Determine the allocation of employees, including numbers that will be
recalled and retained, in accordance with risk and demand;
(d) Consult with employees and their representatives, including (but not limited
to) the United Firefighters’ Union of Australia (UFU), in respect of matters
including:
(i) Definite decisions to introduce major changes in production,
program, organisation, structure or technology that are likely to have
significant effects on employees; and
(ii) changes to regular rosters or ordinary hours of work.
(e) Consultation with employee representatives under paragraph (d) above will
continue to take place through an Operational Committee (Committee) which
will be comprised of MFB and UFU representatives, with the capacity for
additional nominated representatives of employees who are not members of the
UFU.
(i) Matters can only be referred by the Committee to a sub-committee
by consensus;
(ii) No proposal will require the agreement of employees or their
representatives in order to progress to implementation.
326 Exhibit MFB 55, para 41.1
327 Exhibit MFB 55, para 9.7
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(f) Maintain the current classification structure and descriptors, with the
necessary changes to allow lateral recruitment at all levels above Recruit.
There will no longer be automatic progression based on trigger figures –
promotions will be as and when determined by the MFB when vacancies occur;
(g) Continue to deem all employees to be operational for the purposes of
membership of Emergency Services and State Super (ESSS);
(h) Maintain all leave entitlements in the terms that applied prior to
termination.
...
4 The MFB will comply with the Undertaking for a period of 12 months328 from the
time of termination. The MFB will consult with employees and their representatives in
respect of any decision to vary the Undertakings after this 12 month period, prior to
making any such variation.
[192] The UFU questions the enforceability of any such undertaking. In particular, it
questions the accuracy of Vice President Lawler’s comment in Re Tahmoor Coal that “[i]t is
inconceivable that a Court with a general equitable jurisdiction lacks the power to make
orders enforcing an undertaking of the sort given by Tahmoor. Equity regards as done that
which ought be done”329 and notes potentially contrary views have been expressed in other
matters, including those of Commissioner Roe on the subject in RACV, in which it was said;
“The employer has assured the affected employees and the Tribunal that overaward
conditions in the Common Conditions Document will be maintained and that wages
will be maintained and will increase on a regular basis. I accept the submission of the
FSU that such assurances are not legally binding or enforceable in the same manner as
the Agreement is.”330
[193] The undertakings so given are lengthy documents and not easily summarised for the
purposes of this decision; however it is plain from the reading of each summary and
undertaking that changing employment terms and conditions to the provisions of the
undertaking will provide some maintenance of conditions for employees for the duration of
the undertaking (principally those to do with wages and classification) and at the same time
will lead to a reduction in other conditions. For example, the undertakings about allocation of
employees; consultation; and lateral recruitment of staff would result in immediate change.
[194] I consider that, on balance, the likely immediate effect of termination on changes to
conditions of employment will be a significantly less favourable environment than now for
employees, which will last for the duration of the undertakings. While this is my assessment
about the immediate future, I consider it is likely a replacement Fair Work Instrument will be
in place for the affected employees by the time the undertakings expire, which is discussed at
a later point in relation to the likely effect of termination on bargaining, and that the content
of that instrument will likely be more beneficial to employees than the terms of the
328 Amended by the MFB to 18 months – see Exhibit 55, para 41.1
329 (2010) 204 IR 243, at [13]
330 [2010] FWA 3483, at [35]
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undertakings. Because of this assessment about the medium and longer term, I consider the
likely longer term effect of termination on employees’ conditions of employment will be an
environment less favourable than now, but not as significantly less favourable as for the
duration of the undertakings. If I am incorrect in my analysis of the likelihood of there being
a replacement Fair Work Instrument in place by the time the undertakings expire, then
employees will be faced with an indefinitely less favourable environment than now for their
conditions of employment.
Likely effect of changes in the consultation framework and dispute resolution procedure
[195] Given the proposition advanced by the MFB that a positive effect for it of the
termination of the 2010 Agreements will be an improvement in its ability to implement
change in the workplace and thereby give it a greater capacity to improve its effectiveness, the
question arises of what termination will mean in a practical sense for disputes that might arise
in the future of the type that arose in the past?
[196] With respect to the context within which future disputes might be dealt, it is
foreseeable on the terms put forward by the MFB (to the effect that ‘likely effect’ means just
that – not speculation or exaggerated predictions based on worst case scenarios) that;
the MFB’s requirement to consult will be narrower if working under the
undertakings than under the 2010 Agreements; and that the consultation
requirement will be narrower still if working under the Modern Award; and
the capacity for the Commission to deal with disputes, including through
arbitration, will remain broad if working under the undertakings, however such
capacity will narrow if working under the Modern Award;
[197] The MFB and its largest group of employees have been the subject of enterprise
agreements since approval of the 1999 Agreement, with that agreement requiring consultation
over “a proposal to introduce or implement significant change in matters pertaining to the
employment relationship”331 and for committees established under the agreement to “operate
on the basis of consensus when developing recommendations”.332
[198] The 1999 Agreement requirements about consultation moved appreciably by the time
of the 2002 Agreement when the need for consultation moved away from “significant change”
to the need to consult over “any change that will have an impact on employees regarding
work practices or location, job security, remuneration, training or new technology or
equipment or in matters pertaining to the employment relationship or in the way work is or
would be carried out by an employee”.333 I have referred previously to the use in the 2002
Agreement to other factors surrounding the consultative and agreement provisions, including
the use of words such as “consensus” and “agree”.
[199] The 2005 Agreement, referred to previously (and which is the immediate predecessor
of the 2010 Agreements) maintains the earlier definitions of “consultation” and change and
continues the scope of matters that must be referred to EBIC; provides the same arrangements
331 1999 Agreement, cl. 11
332 Ibid, cl.9.3.4
333 2002 Agreement, cl.9.1
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as the earlier agreement for the provision and replacement, etc, of uniforms and equipment;
and continues to use the word “consensus” in a relatively confined manner.
[200] I have also referred at an earlier stage to the greatly expanded role for consultation in
the 2010 Agreements. There is little doubt that consultation in those agreements surrounds an
“agreement-to-change” model, which the MFB characterises as a “veto” in the hands of
employees, or the UFU.
[201] In contrast, the undertakings and the Modern Award provide more limited rights and
obligations surrounding consultation and dispute resolution.
[202] The context within which all these provisions sit is the public good that stems from
consultation.
[203] For example, the FW Act requires enterprise agreements to include a consultation term
requiring an employer to consult employees about major workplace changes likely to have a
significant effect on the employees or changes to their regular roster or ordinary hours of
work.334
[204] In addition, the Full Federal Court held in QR Ltd v CEPU335 that consultation was a
legitimate intrusion into the managerial prerogatives employers;
“It may be said immediately that the process of consultation with which cl 36 is
concerned is not to be confused with the ordinary and familiar processes of negotiation
over industrial claims and counterclaims about “pay and conditions”. Clause 36 of the
agreement constitutes an intrusion upon the managerial prerogative of employers; but
the legitimacy of such intrusion and the importance attached to such provisions has
long been recognised. More than a quarter of a century has elapsed since Murphy J
said in Federated Clerks’ Union (Aust) v Victorian Employers’ Federation (1984) 154
CLR 472 at 493-494; 8 IR 157 at 168-169:
In the history of industrial law, many matters which were within the exclusive
managerial prerogative of employers have been brought within the scope of
industrial regulation, by the legislature or industrial tribunals. Sometimes the
former prerogative has been eliminated, for example by health and safety laws
which prohibit certain practices. Sometimes it has been restricted, for example
by minimum wage provisions. Various privileges which were once exclusive to
the employer are now shared with employees (or their organizations).
During this generation, there has been an accelerating trend towards
concentration of economic power in fewer and fewer persons. The growth of
the great national corporations, their mergers and expansion into transnationals
have transformed the methods of production, distribution and exchange. The
power of the greatest corporations transcends that of most governments. A
reaction to the submergence of the individual worker is the demand by
organized workers for some share in deciding what work is to be done, by
whom and when, where, and how it is to be done. The thrust of the demand is
334 FW Act, s.205(1)
335 (2010) 204 IR 142, per Keane CJ and Marshall J
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not merely the improvement in existing pay and conditions. It extends to the
protection of jobs, for themselves treated as more than wage-hands — to be
treated as men and women who should be informed about decisions which
might materially affect their future, and to be consulted on them. It is a demand
to be emancipated from the industrial serfdom which will otherwise be
produced by the domination of the corporations; a demand to be treated with
respect and dignity.”336
[205] There are, of course, significant factual differences between the circumstances of the
certified agreement applying to the parties in QR Ltd v CEPU and the 2010 Agreements,
which potentially affects the applicability of the above references. Unlike the “agreement-to-
change” arrangements applying within the 2010 Agreements, the circumstances of the QR
Limited Traincrew Union Collective Workplace Agreement 2009 which was the subject of the
Full Court decision, included consultation provisions that are much more limited in scope.
Clause 36.2 of the QR Agreement required the company to consult with affected employees
and possibly their representatives over any proposed changes that would have an impact on
employees’ terms and conditions; cl.36.3 did not require consultation over individual
workplace and performance issues; and cl.36.6 required that where the company made a final
decision, it must notify affected employees and their representatives in writing together with
final details of the proposed change and implementation date, most normally not earlier than
five working days from the date of the notification. Finally, cl.36.7 enabled the issuance of a
notice of dispute should there continue to be concerns. It is apparent therefore that the
consultation provisions in the QR Agreement were limited to consultation prior to agreement
with no apparent requirement that agreement must be reached prior to any change being
implemented.337
[206] Pertinently to some of the issues debated in this matter, the High Court in Re Cram
and Others; Ex Parte NSW Colliery Proprietors’ Association Ltd & Ors338 observed;
“No doubt our traditional system of industrial conciliation and arbitration has itself
contributed to a growing recognition that management and labour have a mutual
interest in many aspects of the operation of a business enterprise. Many management
decisions, once viewed as the sole prerogative of management, are now correctly seen
as directly affecting the relationship of employer and employee and constituting an
‘industrial matter’.
A dispute about the level of manning is a good example. It has a direct impact on the
work to be done by employees; it affects the volume of work to be performed by each
employee and the conditions in which he performs his work. So also with the mode of
recruitment of the workforce. The competence and reliability of the workforce has a
direct impact on the conditions of work, notably as they relate to occupational health
and observance of safety standards. Employees, as well as management, have a
legitimate interest in both these matters.”339
336 Ibid, at [14]
337 See also [32] and [37]
338 (1987) 163 CLR 117
339 Ibid, at p.135, per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
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[207] The UFU connected this reference to the interests of employees having a legitimate
interest in such matters, to the circumstances of its members, and in particular “the way in
which the firefighting service is resourced, distributed and the way in which it is directed to
work”, since the “essence of their work is attending dangerous situations, fires and other
emergencies”. 340
[208] Ultimately, what works for a given workplace is a matter for the workplace guided by
the minimum requirements set out in legislation or instruments such as a Modern Award.
There is a recognition in those things, as well as in the authorities of this Commission and the
Courts that not only are employees entitled to know about and discuss possible change, but
employers are entitled to implement change. While it is possible there are workplaces where
an “agreement-to-change” model could be successfully implemented for the mutual benefit of
the corporation as much as its employees, and for its external customers or stakeholders as
much as its internal ones, the MFB is not one of them. The evidence is that agreement often
cannot be reached and that impasses are frequent for opaque reasons. There is no evidence
that the constructive and supportive culture that would be required to allow success with an
“agreement-to-change” model is in place, or has any prospect of being in place.
[209] While no evidence was provided about why the parties moved to greatly expand the
provisions of the 2005 Agreement and implement an “agreement-to-change” model, there is
also no evidence that would suggest any party, and particular the MFB, was anything other
than properly advised and informed about the changes that were implemented with the
approval of the 2010 Agreements.
[210] Despite these matters, the consideration at this time must be, with the mooted
termination of the 2010 Agreements, of what will be the effect of a change in the way
consultation is required or how disputes might be resolved.
[211] Under the 2010 Agreements, and as but two examples of many such requirements;
firstly the consultative procedures apply to any occasion where the MFB “wishes to
implement change in matters pertaining to [the] employment relationship” with a part of those
procedures being a requirement that decision making in the MFB/UFU will be by
consensus341; and secondly the MFB and UFU “must agree on all aspects” of clothing and
equipment.342 Disputes may be advanced to the Commission in relation to matters arising
under the agreement, including matters pertaining to the employment relationship, whether or
not expressly provided for by the agreement, as well as matters pertaining to the MFB and
UFU relationship.343
[212] In contrast, the requirements of the undertakings will require consultation about “a
definite decision to introduce major changes in production, program, organisation, structure or
technology that are likely to have significant effects on Employees”; and disputes may be
advanced, including to the Fair Work Commission in relation to a “a matter arising under this
undertaking”.344 The Undertakings do not provide a “status quo” requirement to prevent
change to practices or procedures while the dispute is being advanced. Instead, the
340 Transcript, PN 11289
341 2010 Operational Staff Agreement, cl.15 and cl.13.3.2
342 Ibid, cl.88
343 Ibid, cl.19.1
344 Exhibit MFB 5, cl.10.1(a) and 15.2
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undertakings provide that “[w]hile the dispute resolution procedure is being conducted, work
must continue in accordance with this Undertaking, applicable awards and the FW Act”345.
[213] Although the undertakings provide that disputes may be conciliated or arbitrated by
the Commission346, the UFU contests that this would be sufficient to give the Commission
jurisdiction to hear and determine any such dispute, for reason that s.738 of the FW Act does
not refer to an undertaking as one of the instruments referred to in that section, with s.739
allowing the exercise of power “if a term referred to in section 738 requires or allows FWC to
deal with a dispute”.347
[214] The undertakings also provide for consultation with employees about uniforms and
equipment, including by providing the following;
“73 Uniforms and Equipment
73.1 The MFB will consult on all aspects of the following, to the extent that any
change is major change with significant effects on Employees, in accordance with
clause 10.
(a) articles of clothing;
(b) equipment, including personal protective equipment;
(c) station wear; and
(d) appliances;
to be used or worn by Employees. ‘All aspects’ includes, without limitation, design
and specifications. This applies to new and replacement items.
...”
[215] Further, the provisions of the Modern Award also require consultation when “an
employer has made a definite decision to introduce major changes in production, program,
organisation, structure or technology that are likely to have significant effects on employees”
and permits disputes to be raised “about a matter under this award, or a dispute in relation to
the NES”, with the Commission being able to exercise in relation to an unresolved matter
“any method of dispute resolution permitted by the Act that it considers appropriate to ensure
the settlement of the dispute”.348 The MFB notes about the Modern Award that “it would
appear that there is no right of the parties to have the Commission arbitrate a dispute, in the
absence of their mutual agreement”.349 While providing for a Uniform and Equipment
Allowance, the Modern Award does not explicitly provide for consultation about uniforms or
equipment.
345 Ibid
346 Ibid, cl.15.4(h)
347 Exhibit UFU 75, paras 291 - 293
348 Fire Fighting Industry Award 2010 (MA000111), cll. 8.1, 9.1 and 9.4
349 Exhibit MFB 55, para 33.5
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[216] The 2010 Operational Staff Agreement provides extensively for the occupational
health and safety of employees and the duties which are held by the MFB and managers in
respect of employees; see 2010 Operational Staff Agreement at cl.39 (Occupational Health
and Safety) and Schedule 1 (OHS Policy and Procedures).
[217] The undertaking given in respect of operational firefighters also provides at length
about OHS matters, and also includes Schedule 1, OHS Policy and Procedures. The Policy
and Procedures provide significant obligations to consult, not only over workplace policies
and guidance material, but also over the identification and control of general risks, and
specific risks and issues in particular workplaces or workgroups. In order to illustrate this
point, the following are some of the obligations set out in the Schedule;
In the preamble;
“The parties to this agreement, Metropolitan Fire and Emergency Services
Board and the United Firefighters Union recognise the importance of
establishing a consultative and cooperative environment for Occupational
Health and Safety based on the following agreed principles:
2 Fundamental to the success of the Occupational Health and Safety Program is
a commitment to consultation between the parties. This consultation will be
best achieved through the involvement of employees, their union and elected
designated work group (DWG) health and safety representatives (HSR) in
discussions for the ongoing development of OH&S and Rehabilitation policies
and procedures.”350
From the text of the Schedule;
“2.1 Management Responsibilities
The MFB management is responsible for the overall, management and prompt
resolution of all health and safety issues. In order to meet these responsibilities
a Health and Safety Manager will be employed. Some of the duties and
responsibilities for this position will be as per Appendix B.
In implementing the OH&S agreement the management will take all
reasonably practicable steps to:-
...
(g) consult with HSRs and the Union, in preparing OH&S guidelines.
Any new or changed guidelines to be submitted to OH&S Policy
committee for comment prior to finalisation;
...
k) ensure adequate consultation by:
350 Exhibit MFB 5, Sch.1
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(i) establishing a mechanism to enable and facilitate
consultation with both HSRs and operational employee OH&S
Committees.
(ii) consulting with individual HSRs on any OH&S issue
affecting his /her [Designated Work Group];
(l) consulting with the operational employees OH&S Committee where
OH&S issues affect more than one DWG.
...
2.2 Officer-In-Charge Responsibilities
The Officer-in-Charge (OIC) is the employers’ representative that ensures that
the obligations under the OH&S Act 2004 are met in workplaces or systems of
work under their control The OIC should:
(a) consult with staff, HSRs and /or nominated management OH&S
representative(s) on measures to protect against risk to the health and
safety of employees at work.
...
(e) investigate and involve OH&S Representatives in issues that effect
(sic) their workplace and work system
...” (emphasis added)
“3 Issue Resolution Procedure
... All parties will abide by the following:
(a) As soon as possible after any OH&S issue has been reported, an
MFB
representative and the relevant HSR must meet to resolve the issue.
(b) The resolution of the issue must take into account those of the
following factors
that are relevant;
(i) whether the hazard of risk can be isolated;
(ii) the number and location of employees affected by it;
(iii) where appropriate temporary measures are possible or
desirable;
(iv) whether environmental monitoring is desirable;
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(v) the time that may elapse before the hazard or risk is
permanently corrected; and
(vi) who is responsible for performing and overseeing the
control/management of the hazard or risk.
(c) As soon as possible after the resolution of an issue, details of the
remedy and /or action taken will be brought to the attention of affected
employees in an appropriate manner.
(d) Where the issue concerns work which involves a threat to the health
and safety of any person and
(i) the threat is immediate; and
(ii) given the nature of the threat and the degree of risk, it is not
appropriate to
adopt the processes set out in the above clauses 3(a) - 3(c) the
MFB and the health and safety representative for the designated
work group in relation to which the issue has arisen may after
consultation jointly direct or, if the consultation does not lead to
agreement between them, either of them may direct that the
work shall cease.” (emphasis added)
[218] These provisions, of course, sit within the context of applicable OHS legislation, being
the OHS Act and common law duties, about which the MFB argued;
“Termination of the Agreements would not in any way relieve the MFB of these
responsibilities or impair its capacity to discharge them. Indeed, removal of some of
the existing impediments in the Agreements would positively enhance the capacity of
the MFB in the area of health and safety.”351
[219] Reconsideration of the disputes that featured in this hearing within the frame of the
undertakings leads to the following;
The requirements to consult over some of the illustrative matters and the
subsequent development of the matters into disputes are likely not to be repeated
under the undertakings.
For example, on the basis of the evidence before me in this matter, the dispute
regarding personal internet use352; the dispute regarding Windows 7353; the
proposed introduction of Workplace Behaviour Training Program354; the issue
regarding Greener Government Buildings355; the disputes relating to Exercise
351 MFB Outline of Submissions dated 15 May 2014, para 46 - 47
352 Exhibit MFB 55, Appendix M; Exhibit UFU 75, paras 411 - 417
353 Exhibit MFB 55, Appendix V; Exhibit UFU 75, paras 466 - 474
354 Exhibit MFB 55, Appendix S; Exhibit UFU 75, paras 439 - 448
355 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
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Fudo356 and the Wildfire Awareness Drill357 or the introduction of new Chinagraph
Pencils358 would appear to be unlikely to have attributes that would allow them to
rise to be “major changes” as set out in the undertaking, are plainly not major
uniform or equipment changes; and are unlikely to be grounds for a dispute
because they are not a “matter arising under the Undertaking”.
The matters also appear unlikely to have a sufficient bona fide OHS connection for
them to attract the obligation to consult, or be resolved as an issue under the OHS
Policy and Procedures Schedule. Similarly the identified issues regarding the
Operational Support Group and Fitness for Duty Project359 and the proposed
Introduction of Workplace Policies and Guidelines360 appear unlikely to attract the
achieve thresholds.
For other matters, there appears to be either a likely continued requirement to
consult, or for a dispute to be progressed for the reason there may be a sufficient
connection with occupational health and safety to require consultation under the
procedures of the OHS Policy and Procedures Schedule. Issues in this category
may include;
Long duration breathing apparatus training course;361
Deployment of the Telesquirt at the Hazelwood mine fire;362
While the Bin Fires matter363 is said by the MFB to not be a particularly
major change, the UFU argues it is, and one that is linked to safety;
Issue regarding Teleboom Replacement Project;364
Merlin Telemetry;365
Issue regarding Ladder Platform Replacement;366
Dispute regarding transfer of Pumper Tanker to Sunshine North fire
station;367
New breathing apparatus and HAZMAT appliances;368
356 Exhibit MFB 55, Appendix G; Exhibit UFU 75, paras 381 - 384
357 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
358 Exhibit MFB 55, Appendix AA; Exhibit UFU 75, paras 531 - 533
359 Exhibit MFB 55, Appendix Z; Exhibit UFU 75, paras 527 - 530
360 Exhibit MFB 55, Appendices BB and EE; Exhibit UFU 75, paras 534 - 545
361 Exhibit MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
362 Exhibit MFB 55, Appendix H; Exhibit UFU 75, paras 385 - 387
363 Exhibit MFB 55, Appendix I; Exhibit UFU 75, paras 388 - 391
364 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
365 Exhibit MFB 55, Appendix Q; Exhibit UFU 75, paras 434 - 438
366 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
367 Exhibit MFB 55, Appendix T; Exhibit UFU 75, paras 449 - 461
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Some, but probably not all aspects of the MFB’s deployment at the 2014
Hazelwood mine fire369 are likely to attract the consultation procedures
under the OHS Policy and Procedures Schedule;
Issues regarding updating JSOPs (Joint Standard Operating Procedures);370
Issue regarding commission of Mark V trucks for EMR heatwave
response;371
Issues regarding FAL and FAST-card;372
Issue regarding new PPC – Lewis Report;373
Whether some of the other illustrative matters would require consultation or
could be progressed as disputes under the undertakings is less certain.
For example, the MFBSafe project374 and the issues associated with the
relocation of the Northcote Fire Station375 or the refurbishment of the Eastern
Hill Station376 are unlikely to attract the consultation requirements, but may well
have sufficient connection with bona fide occupational health and safety for there
to be a need for the MFB to consult.
Similarly, it may be able to be said that the issues associated with the Multi-
agency appliance display at Knox377; the dispute regarding the loan of a BA Pod
to CFA378; and the equipment display at Bayswater CFA379 are capable of rising
to the level of them being an issue affecting their Designated Work Group, or that
they might be “issues that effect (sic) their workplace and work system”380.
[220] As noted elsewhere, the UFU does not accept either that the undertakings are
enforceable381, or that the undertakings will provide jurisdiction for the Fair Work
Commission to act on a dispute that stems from a “matter arising under the undertaking”382.
If the union is correct, it follows that the Commission’s jurisdiction to deal with disputes in
368 Exhibit MFB 55, Appendix U; Exhibit UFU 75, paras 462 - 465
369 Exhibit MFB 55, Appendix W; Exhibit UFU 75, paras 475 - 495
370 Exhibit MFB 55, Appendix X; Exhibit UFU 75, paras 496 - 506
371 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
372 Exhibit MFB 55, Appendix CC; Exhibit UFU 75, paras 546 - 554
373 Exhibit MFB 55, Appendix FF; Exhibit UFU 75, paras 561 - 583
374 Exhibit MFB 55, Appendix O; Exhibit UFU 75, paras 424 - 427
375 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
376 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
377 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
378 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
379 Exhibit MFB 55, Appendix N; Exhibit UFU 75, paras 418 - 423
380 Exhibit MFB 5, Sch 1, cl.2.2
381 Exhibit UFU 75, paras 101, 128
382 Ibid, paras 292 - 293
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respect of the MFB, even while the undertakings are in effect, would be in relation only to
those authorised by the Modern Award, namely “a dispute about a matter under this award, or
a dispute in relation to the NES”383, with no right for arbitration of such a dispute, in the
absence of agreement by both parties.384
[221] The foregoing analysis shows that a high proportion of the disputes experienced in the
past have some or a strong connection with occupational health and safety and would attract
the procedures set out in Schedule 1 of the operational staff undertaking.
[222] This, in turn leads to two propositions about the likely effect of changes in the
consultation framework and dispute resolution procedure.
The potential for OHS connected disputes to no longer be progressed
[223] The first proposition is that in the event the UFU is correct and the undertakings are
not enforceable in a Court and disputes arising are not within the jurisdiction of this
Commission to deal with pursuant to s.739 of the FW Act, it follows that disputes of the type
identified above as having some connection with occupational health and safety will not be
capable of being regulated within the manner allowed for by the 2010 Agreements.
[224] The likely effect on employees with such eventuality will, to some significant extent,
be an inability to raise and have dealt with, other than in their own workplace or the processes
allowed for by the OHS Act or related legislation, issues of a bona fide OHS nature since
there may be no arbitration rights under the Modern Award even if the matter rises to meet the
threshold for a dispute, being a matter under the Award or in relation to the NES. Whereas
some of the illustrative matters, such as the dispute over the migration of systems to the
Windows 7 operating system, appear to have weak or non-existent OHS links, and others,
such as the property matters or the disputes associated with multi-agency displays appear to
have had their OHS links disproportionately or disingenuously overstated, the evidence in this
matter is mixed. On the one hand the totality of the evidence shows that certain of the
illustrative matters hold a compelling connection with genuinely held safety concerns.
Against this, others do not, and the evidence would suggest disputes advanced for other
purposes.
[225] In relation to the matters with safety linkages, it is the case that regardless of where the
processes of discussion, conciliation or arbitration might take the parties, the evidence,
viewed objectively, is that the matters had sufficient connection with safety concerns for them
to be pursued.
[226] The following is a review of four of the illustrative matters in order to demonstrate the
issues I have taken into account, as well as to inform my reasons for the findings I have made.
Long Duration Breathing Apparatus Training Course
[227] The dispute regarding the “long duration breathing apparatus training course”385 was
the subject of extensive evidence. The dispute commenced in 2010 and was the subject of
383 Modern Award, cl.9.1
384 Exhibit MFB 55, para 33.5
385 See Exhibits MFB 55, Appendix E; Exhibit UFU 75, paras 372 - 378
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debate and discussion at various levels through the MFB’s consultative framework, however
it never progressed to involve the Commission. At the core of the dispute is whether a person
who undertook the course would be required to ingest a device capable of recording their core
body temperature. Mr O’Connell, who was tasked with developing the training course;
“considered it imperative that the training be conducted in realistic conditions, so as to
improve firefighters' own health and safety. It was important that the people being
trained experienced how breathing hot air from the long duration BA set affected their
own physiology.”386
[228] He held these views because;
“Long duration breathing sets operate by recirculating oxygen. This means that the air
you breathe in through the set can be 42 degrees Celsius or warmer. If firefighters are
breathing in this warm air, over time they can become very sick due to an increase in
core body temperature.”387
[229] On the other hand, the proposition that trainees would be required to ingest the device,
known as the “Jonah Capsule”, or “VitalSense”, which enabled real time computer
monitoring via a Bluetooth system transmitter, was highly debatable as a result of medical
and other concerns. Michael Tisbury, a Senior Station Officer employed by the MFB for 25
years and union BCOM member, gave evidence about the following discourse in the process
of consultation;
“... consultative committee members, including myself, asked a range of questions
regarding why it was necessary that the VitalSense technology be a compulsory
component of the training, as it would mean that people with a history of bowel
problems would not be able to participate in the training. Further, there was a risk if
someone had an unknown condition it could pose a risk to their health. No issue with
the training in long duration BA was expressed, the focus was on why VitalSense had
to be compulsory.
Following the discussion, I then recall Mick Walker388 on behalf of the MFB stating
that management also now had concerns about the compulsory nature of using the
VitalSense technology and would not support it.
At that point discussions regarding the topic were finished as both sides were in
agreement that as a committee we could not endorse the VitalSense technology as a
compulsory part of the training. I am aware that the training in the new long duration
BA’s did go ahead some months later with the endorsement of the committee and
without the VitalSense technology.”389
[230] Mr Tisbury’s evidence was that he was not opposed to the use of such a device and
that initially the UFU was quite content for the device to be used, and changing its view after
386 Exhibit MFB 25, para 155
387 Ibid, para 159
388 An Assistant Chief Fire Officer
389 Exhibit UFU 14, paras 118 - 120
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receiving information from Dr Jane Wadsley.390 His evidence is that the training went ahead
without the use of the Jonah capsule being compulsory.391 Mr Tisbury put forward that the
UFU’s position about the use of the device was that the issue was one of equity; should
firefighters be excluded from participating in the training because they had some medical
condition which precluded the use of the device that would be unfairly discriminatory because
it meant the firefighters could not obtain the training at all. Rather than conduct a training
course which might have benefits for the MFB, and even for the safety of firefighters required
to use the hot breathing apparatus, if that training was restricted only to people who were
medically able, his evidence was that he would prefer not to have the training at all;
“So do you accept that this is a progressive and very good piece of equipment to
measure core temperature in firefighters?---Yes, and we just wanted to ensure that it
wasn't compulsory. We were quite supportive of it, but not the compulsory nature of it
because our members, who we represent - some of them had said, "My father had
bowel cancer. Does that mean I can't be a BA operator?"”392
[231] Mr O’Connell’s evidence was that, relying upon medical advice, use of the Jonah
capsule should be compulsory, those who chose to be involved in the training would need to
use the capsule and those who chose not to use it could not be undertake the training, perhaps
with some allowance in the event of a person with a medically declared pre-existing bowel
condition and only if everybody else in the training course was using the capsule.393
Countered against these views was the possibility that exclusion of firefighters from the
training course on the basis of their preference not to use the Jonah capsule precluded them
from completing the training and perhaps having access to the benefits which that might
bring, whether that be access to better work, promotional opportunities or, perhaps more
likely, to an ongoing additional allowance.
[232] Having made allowances that these possibilities of collateral benefits for employees in
relation to the use of the device, overall the evidence leads to the view that there were bona
fide occupational health and safety and equity concerns on the part of the employees and the
UFU. To put it another way, it could not be said on the basis of the evidence and submissions
before the Commission that absent from the dispute’s characteristics are matters that ought
properly be the subject of the exchange of information, analysis and debate. Minds will differ
about the best way to have resolved the obvious dispute, and in any event such resolution is
not the purpose of my consideration of the matter. What remains, on an objective
consideration, is that the matter in debate, and potentially dispute, was one that has sufficient
connection with issues of occupational health and safety for it to be said that it ought properly
be the subject of consultation, and possibly progression as a dispute, under the 2010
Agreements.
Issue Regarding Ladder Platform Replacement
[233] In contrast, the issue associated with the Ladder Platform Replacement Project394
shows a more fundamental issue about which there appears to be little doubt that it involves a
390 Transcript, PN 6627 – 6631
391 Transcript, PN 7262
392 Transcript, PN 6667
393 Exhibit MFB 26, para 13; Transcript, PN 3121
394 Exhibit MFB 55, Appendix R; Exhibit UFU 75, paras 434 - 438
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genuine occupational health and safety problem, that ought properly be raised through
consultation and possibly the dispute processes in the event that consultation could not
resolve the issue. The issue stems from a decision of the MFB in 2010 to replace its ladder
platforms. After considerable work, the MFB ordered two new Bronto Ladder Platform
appliances and in May 2011 a grievance was initiated by the UFU which claimed the MFB
had not adequately consulted on the subject. The new appliances were delivered in May
2012, and in October 2012 after extensive consultation and internal controversy, a serious
safety problem was found when there was observed “a three metre gap between the
evacuation ladder on the cage and the ladder that was on the boom”.395 Mr Youssef conceded
that it was probably useful for the deficiency to have been established during consultation. 396
Mr Tisbury addressed this issue in his witness statement, noting that after consultation
commenced on the subject;
“... a 3 metre gap was discovered between the bucket at the end of the boom and the
boom arm when deployed. Mr McQuade states an opinion at paragraph 117 that the
three metre gap did not create a significant risk when viewed “in the context of the
number of other primary means of bringing ladder platform down”. As I read his
statement, these means are identified at paragraph 90. The proposition that the 3 metre
gap did not create a “significant risk” is preposterous.
The ladder section on the arm of the boom is designed for the rapid and safe rescue of
multiple victims, as well as firefighters, in the event of an emergency. In this way it
acts in effect as a fire escape when deployed against the side of a building. If there is a
three metre gap in the ladder between the bucket (where the firefighter is) and where
the ladder ends on the boom the only way down is to jump from the bucket to the
ladder. When the boom arm is fully deployed it is 45 metres in the air.
It is difficult to comprehend how Mr McQuade could say that he found it difficult to
envisage circumstances where a firefighter would need to descend from the bucket
during an emergency via the ladder. On at least one occasion I am aware of during an
actual fire in Moorabbin a firefighter was trapped in the bucket of the current
appliance (not the one with the 3 metre gap) when the fire engulfed the boom due to
an unexpected wind change. The firefighter needed to use the ladder for a quick
escape. If there had been a 3 metre gap the firefighter would have been forced to
choose between remaining in the bucket and being burned or jumping the gap with the
risk of a fall. Further, what Mr McQuade fails to mention is that if the truck ignition is
turned off, which is not uncommon, the computer on the truck resets itself and will not
allow the boom to be retracted until the computer is satisfied that all the safety settings
have been properly set. This takes time. In the meantime, the firefighter in the bucket
has to stay there until the system is reset or removes himself from the bucket by
climbing down the boom. That would normally be done via the ladder, but not if there
is a 3 metre gap in it.
Mr McQuade complains about the consultation the MFB had to engage in about this
piece of equipment. However, it was only through the consultation process that
395 Exhibit MFB 27, para 110
396 Transcript, PN 1213
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employees learnt of the problem and raised an objection. The equipment has not yet
been fixed and remains in the sheds.”397
[234] Again, this subject matter is one that ought properly be the subject of consultation and
potentially for progression as a dispute under the 2010 Agreements.
[235] Against these examples of a potentially proper alignment with the consultation
provisions of the 2010 Agreements can be pitted examples from the illustrative matters where
very serious matters were trivialised or perhaps obstreperously delayed for some unapparent
or ulterior purpose.
Issue Regarding Teleboom Replacement Project
[236] The Teleboom Replacement Project398 commenced in 2009, with the MFB seeking to
replace its fleet of five Teleboom appliances, with the machinery described as being similar to
a normal pumper, but with a slightly higher pumping capacity and a hydraulic boom of 17
metres in height. The appliance “is particularly useful in fighting factory fires and other fires
where an elevated or extended boom provides better suppression”.399 A dispute arose with the
UFU after the replacement (known as a “Bronto”) had been purchased and delivered,
ostensibly about consultation and safety issues400, and the appliance has not been used
since401, at least by MFB employees.
[237] The parties are in dispute about when the safety matters were first raised, or whether
they are genuine, with Darren McQuade, a Commander, giving evidence that the witness
statement of Robert Psaila, a Leading Firefighter and member of the UFU Branch Committee
of Management “is the first time the UFU have listed these concerns in writing”402. Mr Psaila
raises 15 such issues in his witness statement, some appearing to be design issues and some
appearing to be capable of being fixed by remedial work, and still others appearing to be
capable of being dealt with through the administrative controls.
[238] Because of the dispute between the parties, MFB employees have not been trained in
the use of the equipment and the machinery has not been used within the MFB. Despite these
safety concerns, at the time of the Hazelwood mine fire in 2014, with the MFB submitting in
of closing submissions;
“During the recent Hazelwood fire the MFB’s Bronto was operated by South Australian
firefighters (as MFB fire fighters were not trained in how to operate the Bronto). The
evidence of Mr McQuade is that feedback from those firefighters is they thought it was
a great piece of equipment. Further, feedback received by the MFB from the Bronto
representative is that the experience of other Australian and New Zealand fires services
with the Bronto has been very positive.”403
397 Exhibit UFU 14, paras 102 - 105
398 Exhibit MFB 55, Appendix K; Exhibit UFU 75, paras 398 - 402
399 Exhibit MFB 27, para 40
400 Exhibit UFU 21, paras 28 - 29
401 Exhibit MFB 27, para 74
402 Exhibit MFB 28, para 35
403 Exhibit MFB 55, Appendix K, para 3
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[239] David Bruce, Acting Deputy Chief Fire Officer, gave evidence how the equipment
came to be used by the South Australian firefighters as follows
“Within the first week or so of the Hazelwood fire, the CFA asked us to provide as
many aerial appliances as possible. We provided them with one aerial appliance but
they asked for more.
We had a Telesquirt appliance (an appliance with an elevating nozzle) which had not
yet been commissioned. I understand that there was a consultative process to
commission the new appliances which had been unsuccessful. I understand that the
reason given by the UFU for this was that some issues had been identified with the
Telesquirts being used in New Zealand and that the users there had referred to the
appliance as a “pig”. In a nutshell, I understand that commissioning the appliance
wasn’t agreed to by the UFU and the appliance has been sitting in a shed ever since.
As a consequence, no one was ever trained in how to operate the appliance.
We negotiated an outcome with the UFU where we had firefighters from South
Australia attending Hazelwood to operate the Telesquirt on our behalf.
Because the Telesquirt appliance was similar to the ones used in South Australia, the
South Australian crews were able to operate our appliance. Generally the functionality
of appliances is the same across fire services. There may be small differences in things
such as compartment layout and control panels, to allow for slightly different gear or
functionality.”404
[240] Mr Tisbury’s evidence about how SA firefighters came to use the equipment when
MFB firefighters would not includes that he was content for SA firefighters to operate the
appliance because they have been trained but not so for MFB employees because they had not
been trained and there was no training package developed.405
[241] It could perhaps be said that the MFB employees were prevented from the last minute
use of the equipment simply because there was no training package for them to be trained
upon; however all concerned got to that point because there was no preparedness on the part
of the UFU or its members to cooperatively work to commissioning the equipment. It is not
possible to resolve consideration of this illustrative matter in the favour of the UFU. The
explanation that safety considerations were holding MFB employees back from either being
trained in the use of the equipment or being prepared to develop a training package for its use
is exposed as disingenuous when interstate firefighters working for an organisation with no
less significant duties of care towards its employees can be rapidly deployed to use the
equipment.
Issue Regarding use of Mark V Trucks and Light Vehicles for EMR Heatwave Response
[242] The background to this dispute406 includes that for some years now the MFB has
worked with a first responder programme in which it has appliances and firefighters routinely
dispatched to cardiac arrests at the same time as an ambulance. Firefighters are trained to deal
404 Exhibit MFB 22, paras 27 - 30
405 Transcript, PN 7068 - 7069
406 Exhibit MFB 55, Appendix Y; Exhibit UFU 75, paras 507 - 526
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with life-threatening medical emergencies and can and do provide emergency medical care
until the time that an ambulance paramedic arrives.407 In addition, as background, Victoria
and much of southern Australia was experiencing an extreme heatwave in mid-January 2014.
After being requested by State emergency coordinating authorities, the MFB sought to
increase its capability to respond to cardiac arrests. It sought to do this by using yet to be
commissioned Mark V pumper trucks which the MFB alleged had been the subject of
industrial action by the UFU and its members.408 The MFB also sought to increase its EMR
response capacity through the use of light vehicles.409 The practical effect of this decision
would be to increase the number of vehicles and staff available at any given time to attend to
cardiac arrest emergency calls by citizens.
[243] In response to difficulties faced by the MFB in implementing its request, the MFB
commenced s.418 proceedings in the Fair Work Commission for orders associated with
unprotected industrial action in relation to use of the Mark V pumper only, and ultimately the
matter was resolved in conference before me with the UFU agreeing it would not take,
encourage or support any industrial action regarding the training on or use of the Mark V
pumpers.410
[244] Mr Psaila’s evidence about the restrictions on the use of the Mark V pumper trucks
was “that these appliances were faulty and posed a safety risk to firefighters and the Victorian
Community and were therefore not in use.”411 His evidence was that the safety problems
were severalfold, including problems associated with the electronic stability control; the
electronic pump governor; and the foam injection systems.412
[245] Further, in relation to the proposal of the MFB to use light vehicles to undertake
additional EMR work, Mr Psaila’s evidence includes that he advised the MFB “that gas
cylinders cannot be stored unsecured in cars, as this poses a safety risk and was against
relevant Australian safety codes” 413 of which the MFB was unaware and that;
“The UFU had concerns with the proposal, which was lacking any detail, from the
MFB. These concerns included the following:
a. Firefighters (other than Commander and ACFOs) do not respond in light
fleet vehicles or sedans. Firefighters are trained to respond with an appliance
which will be carrying equipment necessary to perform their tasks. In EMR
events this equipment is specific and specialised equipment.
b. Firefighters are only trained in basic levels of EMR and are not trained to
provide patient care in cases of, for example, extreme dehydration where a
intravenous drip is required to provide fluids.
407 Exhibit MFB 14, para 174
408 Ibid, para 177
409 Exhibit UFU 21, p.48
410 Exhibit MFB 14, para 180; pp.370-378; see also C2014/2674
411 Exhibit UFU 21, para 55
412 Ibid, paras 34 - 44
413 Ibid, para 51
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c. That firefighters would be exposed to situations where they would not have
the necessary equipment, skills and training and could be potentially liable for
any action or inaction.
d. That a process would be put in place that would expose the public to
potential risks.”414
[246] The MFB responded through Mr Youssef in relation to the light vehicle component of
the proposal, that there has been a long history of firefighters below the rank of commander
responding in light vehicles albeit that they must always respond with minimum of two such
firefighters in the vehicle; responses to cardiac arrest calls ones that firefighters routinely
respond to and that they would have sufficient skill and training to do so. Mr Youssef’s
evidence is also that EMR oxygen kits are routinely transported in light vehicles and securing
straps are provided for that purpose, with no safety issue arising with regard to the
transportation of oxygen kits in such way.415
[247] Mr Rau’s evidence about the need for swift action was that he and other emergency
service chiefs were informed on 13 January 2014 that Ambulance Victoria;
“had projected there would be a large increase in the number of people experiencing
heart attacks due to the heat wave. The estimate was somewhere in the order of 75
people per day compared with the usual 11 people per 24 hour period.”416
[248] Mr Rau’s evidence continues that;
“Accordingly, following the SEMT meeting on 13 January I spoke with Peter Marshall
about the MFB's proposal to commission additional vehicles to respond to any
significant surge in EMR events. Mr Marshall appeared reasonably supportive but
asked that I put the heatwave proposal in writing. I did this by email dated 13 January
2014 at 5.47 pm ...
On 14 January at 8 58 am Casey Lee of the UFU notified a dispute under the 2010
Operational Agreement ‘in relation to the MFB attempts to unilaterally change
systems of work in relation to EMR without proper consultation.’ ... Mr Lee's email
noted the UFU's ‘serious concerns regarding ill conceived components of the MFB
proposal and the extreme late notification regarding this matter.’”417
[249] Further context about the imperatives for the initiative and the MFB’s decision making
is given in Mr Youssef’s oral evidence, including in relation to the MFB’s decision to move
away from its initial proposal to use light vehicles for the initiative in addition to the Mark V
pumpers;
“What you're implying there is, there was no objection from the union to the use of the
trucks earlier with the recruits, and yet they were now objecting to the use of the trucks
in the commission proceedings?---The way that I saw it was that the brigade was faced
414 Ibid, para 48
415 Exhibit MFB 15, paras 20 - 24
416 Exhibit MFB 7, para 60
417 Ibid, paras 66 - 67
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with a very serious situation in the middle of a heatwave. Ambulance Victoria had
communicated at the State Emergency Management Team that they expected to have a
significant spike in the number of cardiac arrests in Melbourne. They were concerned
about their ability to respond. They asked the MFB to help. I was at that SEM Team
meeting. I was aware that we had tried to commission those appliances, we had been
unsuccessful. We looked at another option, which was around using twin cab vehicles.
In the end we withdrew from that option, and then we went back to the pumpers again
and then eventually I was able to determine that the pumpers - I didn't know initially,
but that they were used for the training recruits and that was brought into discussions
here at the commission and in the end we were able to reach agreement.”418
[250] Late on 14 January 2014, the UFU wrote to Mr Rau, seeking further information about
the proposal. The union sought answers to these questions;
“14 January 2014
Questions in relation to matter notified to UFU on 13 January 2014:
Note: this list is provided as quickly as possible and therefore may not be exhaustive
and is also arising on the basis of the limited information provided to date.
1. Why is AV seeking assistance from MFB in dealing with ambulance work?
2. Why has this proposal been left until a day before an expected heat wave?
3. Please provide all MFB briefing papers and documentation which articulates the
MFB reasoning and explains the proposals, including but not limited to the T Hunter
documents referred to in discussions and the 2009 report.
4. Please provide minutes from yesterday's SEMT meeting where these issues
apparently arose?
5. Please provide clearly articulated and details of the request, expectations and
briefing from AV to MFB in relation to this increased response.
6. What other advice has AV provided MFB in relation to the expected increase in
calls? Please provide all such advice.
7. In discussion, Paul Holeman referred to hotspots identified in an April 2009 report,
what are the locations of the hot spots referred to by Paul Holeman?
8. What are the locations intended for deployment by AV of MFB resources?
9. What will be the mechanism for deployment of MFB resources to AV identified
areas and to EMR incidents?
10. What extra AV resources will be located in these areas?
418 Transcript, PN 1680
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11. What are the exact number of extra emergency ambulance resources which will be
put into service over the period?
12. Is their (sic) any intention that there be any circumstances where MFB EMR crews
will be utilised outside of the agreed dispatch grid for EMR?
13. It is our understanding that under code orange that codes can be upgraded,
resulting in UFU members being responded to heat illness incidents which they are not
trained to respond to. What guarantee do AV and MFB provide that this will not
occur.
14. How many and what type of vehicles will be utilised for the additional response?
15. Will these intended vehicles be equipped with the full complement of EMR
equipment, additional PPC and facilities for storage of contaminated cloth ing as per
current MFB EMR capable appliances?
16. Is the proposed enhanced response model within and consistent with the MFB AV
MOU for EMR?
17. What additional resources are proposed for FSCC's in relation to t he increased
response?
18. Given the expected frequency and intensity of the EMR call load for these
appliances, what arrangements are being put in place to ensure staff health and safety
and welfare?
19. How does the MFB intend to manage firefighter fatigue given t he increased EMR
resources?
20. Given that MFB EMR crews will be confronted with clinical situations outside of
those for which they have been trained, can you confirm that MFB crews will be fully
indemnified should an adverse patient outcome occur?
21. Has the MFB sought legal advice as to whether the organisation is at risk from
litigation by sending firefighters to incidents outside their training and skills?
22. Given that MFB EMR crews will be confronted with clinical situations outside of
those for which they have been trained, what training, clinical skill sets and equipment
does the MFB intend to provide the additional crews?
23. Is there any intention to utilise additional CFA resources as part of this proposal?
24. How many and from what areas/departments will the crews be drawn from to staff
the additional appliances?
25. Will off duty employees be recalled or will day duty staff be utilised and under
what systems and arrangements?
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26. What will be the agreed trigger points for the deployment of these additional
resources over the next week and into the future?
27. What are the intended duration and hours of operation of the additional resources?
28. Where will the additional resources be located?
29. What facilities will be provided for the crews at the locations?
30. Has the MFB EMR medical officer been consulted and is in agreement to this
proposal?
31. Is it intended that the additional appliances be part of CAD or as strike teams as
articulated by Peter Rau today?
32. As stated by Peter Rau today that the response is under strike team arrangement,
under what protocols and systems of work will the additional appliances be deployed,
i.e. as per current strike team arrangements for deployment into CFA areas?
33. If CAD is to be utilised, how will the additional resources be recognised and
utilised by that system?
34. What will be the crewing arrangements including rank numbers, rank type and
qualifications for the appliances?
35. Given that it is expected that AV resources will be in higher demand, what is the
expected on scene duration prior to AV arrival for MFB EMR responders?
36. Will AV resources be re-allocated to other jobs on the basis that MFB is on scene?
37. What guarantee do you provide that in all circumstances MFB will be co-
responded with AV to all EMR calls?
38. Given the expected extreme weather what additional resources will the MFB be
deploying to meet the expected fire threat and does the additional EMR resource
proposal compromise the MFB's ability to meet the expected fire threat?”419
[251] Mr Rau’s evidence on the subject of the January heatwave includes that he was aware
“that AV experienced a 700 per cent rise in the number of call-outs it received for cardiac
arrests on Friday (17 January), when temperatures spiked at almost 44 degrees Celsius.”; and
that “the Victorian Institute of Forensic Medicine said that it had recorded 139 deaths in
excess of the average expected between Monday, January 13, and Thursday, January 23
2014”.420 An ABC News article attached to his witness statement highlights that during the
period of the heatwave:
“More than 203 deaths were reported to the coroner, more than twice the average. The
Victorian Institute of Forensic Medicine expects the number of deaths to reach that of
419 Exhibit UFU 21, para 52
420 Exhibit MFB 7, paras 83 - 84
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the unprecedented heatwave in 2009, which is thought to have killed more than 370
people in Victoria alone.
...
Ambulance Victoria says it received a 700 per cent rise in the number of call-outs it
received for cardiac arrests on Friday, when temperatures spike at almost 44 degrees
Celsius.
At one point paramedics were receiving a call every six minutes reporting cardiac
arrests.
Across the state last week paramedics treated more than 500 people for heat
exhaustion and received 208 calls about cardiac arrests.
Sixty children were discovered locked in cars during the extreme weather.”421
[252] Colourfully and colloquially, Mr Rau put the methods of the UFU in relation to the
Mark V trucks as an embuggerance,422 which, according to the Macquarie Dictionary, is “an
unnecessary or irrelevant interruption in the completion of a task”.423
[253] In the context of the issue and its urgency, and the nature of the 38 questions asked,
the request was certainly that. The request by the union for information appears highly
unlikely to have been an action intended in good faith to elicit information for the making of a
timely decision. Instead the questions appear more likely to be an endeavour to smother
consultation, notwithstanding that the MFB responded comprehensively to each question424.
The device appears more likely than not to be an unsophisticated endeavour to overwhelm the
proposer of change with a demand for a disproportionately large amount of information,
rather than to engage with the proposal. The context of the January heatwave; the request for
assistance from Ambulance Victoria; and the fact that the very nature of a heatwave is that it
will last for only a short, unknown time means that there is no other reasonable way to view
the demand. As such, it is not consistent with the commitment given by the parties to
“effective consultation and communication” and likely does not comply with the obligation
on members of the MFB/UFU Consultation Committee “to cooperate positively to consider
matters that will increase efficiency, productivity, competitiveness, training, career
opportunities and job security.”425
[254] The potential for issues such as the four referred to in detail immediately above to no
longer be advanced in the event of termination of the 2010 Agreements is one that must be
taken into account in consideration of the criteria in s.226(b)(ii).
[255] Despite finding that there are mixed motives for, and benefits from, consultation or
progression of matters through a dispute resolution procedure, it is unavoidable that some
matters at least have been appropriate to progress through those forms.
421 Ibid, pp.139-140, Attachment PR-15
422 Transcript, PN 401 - 403, incorrectly transcribed
423 Macquarie Dictionary, (5th ed, 2009), p.545
424 Exhibit MFB 7, para 73, and Attachment PR-11
425 Operational Staff Agreement, cl.13.3.1 and 13.3.3
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[256] In such case the likely effect on the MFB will be to significantly reduce the matters it
faces that need to be the subject of consultation, and none such would then be the subject of
“agreement-to-change” or veto requirements during consultation, or arbitration if a Modern
Award dispute could be raised about the matter. In contrast, there will be a significantly
reduced capacity for employees and the UFU to raise and progress disputes with a genuine
connection to occupational health and safety under the auspices of an instrument such as the
2010 Agreements, governed as they are by the FW Act,.
The potential effects if undertakings are enforceable
[257] The second proposition is that in the event the UFU is incorrect and the undertakings
are enforceable in a Court and disputes arising are within the Commission’s s.739 dispute
resolution jurisdiction, then a significant number of the disputes experienced by the MFB in
the past will be capable of being advanced in the future, and in such case the MFB will not
have gained as much improvement in the consultation framework and dispute resolution
procedure as it expects. Even so, there would be an improvement; some consultation would
not be required, and that which is would not be subject to “status quo” or “agreement-to-
change” provisions; and some disputes could not be advanced because they insufficiently
connect to the criteria in the Dispute Resolution clause.
Summary - likely effects of termination on the parties
[258] I refer elsewhere that I consider it is likely a replacement Fair Work Instrument will be
in place for the affected employees by the time the undertakings expire, and that I consider it
likely the content of that instrument will be more beneficial to employees than the terms of
the undertakings, but less beneficial than the current agreements.
[259] I consider that, on balance, the likely effect of termination on changes in the
consultation framework and dispute resolution procedure will be to;
improve the consultation and dispute resolution framework for the MFB, with the
extent of the improvement being dependent on the enforceability of the
undertakings and whether they give the Commission jurisdiction to deal with
disputes; and
significantly impede the framework for employees and the UFU, with the extent
of the impedance being dependent on the same factors as indicated above.
Likely effect of changes to the parties’ bargaining position
[260] Consideration of the bargaining history and the external environment within which the
MFB, its employees and the union work, leads to the view that it is also more likely than not
that operational firefighting employees will not fall back only to the provisions of the Modern
Award (as well as employment provisions drawn from the National Employment Standards or
applicable State legislation). Rather, it is more likely than not that there will be in place, by
the time the undertakings expire, a replacement enterprise agreement of some type, or another
Fair Work Instrument, such as a Workplace Determination, which could potentially be
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industrial action related or bargaining related426. I consider this eventuality is also likely for
ACFOs, to whom the Modern Award appears not to extend, and Commanders, about whom
the UFU contends are not covered by the Modern Award.
[261] It is also more likely than not that the consultation and dispute resolution provisions of
an ongoing instrument would be somewhere between the content of the undertakings and the
provisions of the 2010 Agreements. This proposition is discussed in greater detail at later
point.
[262] The submissions of the parties in relation to bargaining for a replacement agreement
are connected mainly with the first consideration contained in s.226, of whether it is not
contrary to the public interest to terminate the 2010 Agreements. However, a likely effect of
termination is a significant impact on the standing of parties in bargaining. This likely effect
extends not only to the question of what the parties may bargain for, but also the strength of
their relative bargaining positions.
[263] The FW Act, as demonstrated through these proceedings, makes it difficult for a party
to unilaterally walk away from the content of an agreement, even if it has passed its notional
expiry date.
[264] In Toyota Motor Corporation Australia Limited v Marmara427 the Full Federal Court
considered the status of enterprise agreements, within the context of an alleged breach of the
“no extra claims” provision. In that decision, the Full Court distinguished the making of
enterprise agreements from precepts of contract. Albeit within the context of consideration of
the law as it applies to the circumstances in which an agreement may be varied and not in
which it may be terminated, the Full Court held;
“85 The respondents pointed out that the FW Act is silent on the question whether a
provision of an enterprise agreement may be inconsistent with the ability of an
employer and its employees to make a variation to the agreement under Subdiv A of
Div 7 of Pt 2-4 of the FW Act, or, specifically, with the ability of the employer to
request its employees to approve a proposed variation under s 208. Taking the no
further claims term in cl 4 of the Agreement as including a prohibition upon making
such a request, the existence of the prohibition would not have stood in the way of the
Commission approving the Agreement: indeed, given the terms of s 186(1), the
Commission would have had no option but to approve the Agreement notwithstanding
the prohibition. Neither, it was pointed out, does s 253 render this part of cl 4 of no
effect. In a statutory setting in which so little is left to implication, the legislature must
be taken to have intended, or at least assumed, that an agreement containing a
prohibition of this kind could and should be approved, and that the prohibition could
and should be effective according to its terms.
86 We accept the broad thrust of the respondents’ submission that the FW Act has
addressed, in great detail, the matter of the terms that are permitted in an enterprise
agreement, and has also given attention to the consequences of a term which is not so
permitted finding its way into such an agreement. For the most part, however, the
legislative indications on which the respondents rely are indirect ones. As it happens,
426 See FW Act, Pt 2-5, Div 3 and Div 4
427 [2014] FCAFC 84
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the clearest, and most relevant, indication of legislative intent is to be found on the
terms of Subdiv A itself, specifically those of ss 207 and 208. It is there provided that
an employer and its relevant employees may jointly make a variation of an enterprise
agreement, and that the employer may request the relevant employees to approve such
a proposed variation. That a provision of an agreement which prohibited – either in
terms or within the scope of a more generally-expressed prohibition – the making of
such an agreement or request should be regarded as inconsistent with the statute is a
proposition to which, in our view, there could be no answer.
87 The respondents sought to extract themselves from the inevitability of that
conclusion by proposing that s 208 of the FW Act was merely “facilitative”, in that it
gave the employer a facility which it was at liberty to take up or not as it chose. If the
employer does not take it up, that could not be regarded as inconsistent with the
section, or with the statutory scheme of which the section forms a part. From there, it
is but a short step to propose, as the respondents did, that the situation arising under
cl 4 of the Agreement is no different from one in which a party to a contract agrees,
for consideration, not to exercise a right which he or she has under the general law.
88 We do not accept that premise, or the appropriateness of the contractual analogy.
Under the FW Act, an enterprise agreement is an agreement in name only. Those
who, by s 172(2), are empowered to “make” an enterprise agreement are the employer
and “the employees who are employed at the time the agreement is made and who will
be covered by the agreement”. A contract lawyer would assume that those persons
would be parties to the agreement, and that the assent of all of them would be
necessary for the agreement to be “made”. But the lawyer would be wrong on both
counts. The FW Act does not identify the employer, or any employee, as a “party” to
an enterprise agreement. Further, notwithstanding the specific empowering terms of s
172, it is not necessary for all the employees who are employed at the time an
agreement is made and who will be covered by the agreement to assent to the terms of
the agreement. Once a majority of those employees have agreed by voting, the
agreement must be sent to the Commission for approval and, if approved, thenceforth
applies to all the employees in the relevant group, even those who did not agree, and
even those, subsequently taken into employment, who were not part of the relevant
group at the time the vote was taken under s 182.
89 In his reasons, the primary Judge said that “Toyota contended and it was not
disputed, that an enterprise agreement made under the FW Act is a form of delegated
legislation”. It appears that that contention was made in the context of Toyota’s
submission based on s 46 of the AI Act to which we have referred. However, although
the FW Act provides that an enterprise agreement is “made” otherwise than by the
Commission, the Act does more than merely impose conditions upon, and give
additional legal effect to, an agreement made between private parties. The effect of
the legislation is to empower the employer and the relevant majority of its employees
to specify terms which will apply to the employment of all employees in the area of
work concerned. The legal efficacy of those terms will arise under statute, not
contract, and, as mentioned above, will be felt also by those who did not agree to
them. Someone, such as an employee subsequently taken on, who had nothing to do
with the choice of the terms or the making of the agreement, will be exposed to penal
consequences under s 50 if he or she should happen to contravene one of the terms.
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When viewed in this way, it is not difficult to share in the perception that an enterprise
agreement approved under the FW Act has a legislative character.
90 An enterprise agreement is a statutory artefact made by persons specifically
empowered in that regard, and under conditions specifically set down, by the FW Act.
It is enforceable under that Act, and not otherwise. There is, in the circumstances, no
reason to approach the question of legislative intent with a predisposition informed by
notions of freedom of contract.”
[265] Further, and relevant to the same subject of the legal status of an enterprise agreement,
the Full Court held;
“97 An enterprise agreement made under Pt 2-4 of the FW Act is not, of course, a
regulation. But, as stated above, it is something more than a mere agreement in the
way of a contract. It is a specific instrument made only under the detailed regime for
which Pt 2-4 provides and enforceable only as provided by the FW Act. ...”
[266] Well before the decision in Toyota v Marmara, DP Sams commented on the likely
policy objective of the legislation in SDV Australia. After referring to the caution of Vice
President Lawler in Re Tahmoor Coal428, His Honour observed;
“[39] In addition, Roe C observed in Royal Automotive Club of Victoria:
‘It has certainly been the case since the introduction of a legislative scheme for
collective bargaining in Australia that the platform for bargaining replacement
agreements has been with very few exceptions the old agreement.’
[40] It is pellucidly clear that the legislature has deliberately made it more difficult to
terminate an expired agreement than has been the case in the past. This is so, because
unlike its predecessor legislation, (Workplace Relations Act, 1996) there is no capacity
for the unilateral termination of an expired agreement, simply upon the giving of
written notice by an employer. It seems to me that the continued operation of an
expired agreement is desirable for the following policy reasons:
it permits the parties to negotiate from the standpoint of the ‘status quo’
and there is no significant shift in the balance of the forces of bargaining;
and
employees do not suffer an immediate reduction in the terms and
conditions of their expired agreement.
[41] Obviously, the practical effect of terminating an agreement is to substantially
alter the ‘status quo’ in relation to the bargaining process. I agree with Lawler VP’s
comments in Tahmoor Coal that it would generally be inappropriate for the
Commission to interfere in the bargaining process by terminating an existing
agreement.
428 (2010) 204 IR 243, at [54] – [55]
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[42] In this case, there is no doubt the nominal term of the TWU Agreement has
expired, that the Union and its members wish to engage in negotiations with the
applicant for a new agreement and have commenced, albeit in a preliminary way,
discussions for such an agreement. All these ingredients, reinforce in my mind, the
inappropriateness of altering the ‘status quo’ so as to plainly advantage one party’s
negotiating starting point over the other. This is a powerful reason why it would be
inappropriate to terminate the TWU Agreement at this point in the bargaining cycle. I
would wish to emphasise, that to do so would be contrary to the objects of the Act and
the principles underpinning the primacy given to enterprise bargaining under the Act.”
(reference omitted)
[267] It was noted in Re Tahmoor Coal in relation to bargaining that;
“the FW Act entitles bargaining parties, through their representatives, to “hold out” and
decline to make concessions on matters that are important to them. Both Tahmoor and
the CFMEU/employees have exercised that “right”.”429
[268] The same case took into account, and elevated to the point of it becoming a matter of
significant weight, that there would be a substantial weakening in the employee’s bargaining
position;
“Termination of the Agreements will alter the status quo in a fundamental way. It will
effect a very substantial improvement to Tahmoor’s bargaining position and an
equivalent weakening in the bargaining position of the employees. Moreover, and
perhaps more importantly, if the Agreements are terminated Tahmoor will effectively
achieve all that it sought out of the bargaining save that the employees will continue to
be entitled to take protected industrial action in support of claims for a new agreement
(a right which the employees presently enjoy). This is a matter to which significant
weight should be attached.”430
[269] The partial context of this finding included pessimism on the part of the Commission
about the prospect of there being a replacement agreement, coupled with fears there would be
additional disputation, in the event that termination was permitted;
“... in this case the effect of termination of the Agreements will be to deliver all of the
key productivity benefits sought by Tahmoor by virtue of the termination rather than
by collective bargaining resulting in an enterprise agreement that delivers those
benefits.
In relation to the object in s 171(b), in this case I consider that termination will reduce
the prospects of an agreement being concluded through bargaining. At present, the
employees have an incentive to conclude an agreement because they have had no pay
increase for an extended period and a new agreement is the only realistic way that they
will be able to achieve a pay increase. If the Agreements are not terminated then
Tahmoor will retain the incentive that it presently has to conclude a new agreement
because it is clearly eager to obtain productivity benefits which it considers can be
delivered by a removal of some or all of the Constraints. If the Agreements are
429 (2010) 204 IR 243, at [70]
430 Ibid, at [59]
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terminated then Tahmoor will have much less incentive to compromise on its present
bargaining position and, thus, Tahmoor’s incentive to conclude a new agreement will
be significantly reduced.
I consider it more likely than not that there will be further protracted protected
industrial action by employees if the Agreements are terminated.”431
[270] The evidence in this matter leads to a likely effect of the termination of the 2010
Agreements being a “significant shift in the balance of the forces of bargaining” in favour of
the MFB. The context to this shift featured in the course of evidence about the progress of
bargaining and is summarised in the MFB Closing Submissions. Mr Paul Stacchino, an MFB
Deputy Chief Officer and leader of the team responsible for the negotiation of the
replacement enterprise agreements for MFB operational staff432, gave evidence that the
current and former CEO have reinforced to him;
“... that the MFB will not, under any circumstances, concede to replacement enterprise
agreements that contain any of the following terms:
(A) A consultation provision which contains a requirement that decisions can only be
made by agreement/consensus between the parties.
(B) A consultation provision that requires consultation on all or any change.
(C) A dispute resolution clause which applies to all matters pertaining to the
employment relationship.
(D) A dispute resolution clause which requires the MFB to maintain the ‘status quo’ in
place prior to any grievance arising.
(E) Provisions that restrict external recruitment.
(F) Provisions that restrict and/or impede operational deployment across the
[Melbourne District] and the State more generally.
(G) Provisions that are more appropriately addressed through Victorian State
legislation, e.g. OH&S Act, MFB Act etc.
(H) Provisions that prevent the MFB from determining and acting when an employee
is not fit for duty.
(I) Provisions that defer bargaining as a reserve matter, to be dealt with during the life
of the agreement, or are constructed in a manner that keeps bargaining live during the
life of the agreement.
(J) Provisions which are not permitted to be included in an enterprise agreement by
law.”433
431 Ibid, at [65] - [70]
432 Exhibit MFB 18, para 6
433 Exhibit MFB 19, para 11
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[271] Mr Rau’s evidence supported that these were the MFB’s instructions approved in
conjunction with the MFB Board, and that;
“No concessions will be made in relation to these matters. Furthermore, the bargaining
team have been instructed not to enter into any other forms of agreement arising from
bargaining, such as a deed, memorandum of understanding or exchange of letters. All
matters arising from and being settled in bargaining, must be reflected within the
enterprise agreement.”434
[272] Mr Stacchino’s evidence on this subject included that the MFB had communicated to
the UFU in bargaining that there were several “threshold” issues for negotiation;
“... the three ‘threshold issues’ for the MFB are:
(A) Consultation. The MFB will not concede to a consultation provision which
contains a requirement that decisions can only be made by
agreement/consensus between the parties, or that requires consultation on all or
any change.
(B) Dispute resolution. The MFB will not concede to a dispute resolution
clause which applies to all matters pertaining to the employment relationship,
and which requires the MFB to maintain the ‘status quo’ in place prior to any
grievance arising.
(C) Classifications in the context of external recruitment.
It has been, and continues to be the MFB’s position that these matters are fundamental
to any new agreement. The MFB will not be in a position to reach an agreement with
its employees about the range of other matters on which the parties remain apart unless
these matters are agreed to by the UFU. The MFB has stated on a number of occasions
that it sees little utility in deferring discussions about these matters to later in the
bargaining process.”435
[273] The UFU observed about the MFB’s position on these matters that;
“All the above represent criticisms made by the MFB in these proceedings of existing
rights. Self-evidently, terminating these rights alters the status quo in the bargaining
process. It gives the MFB the “big ticket items” it wants in the bargaining.”436
[274] I consider that there is little doubt that termination of the 2010 Agreements will shift
the balance of bargaining in favour of the MFB. The evidence in this matter in respect of
bargaining shows that while the progress of bargaining may be slow and that there is a
measure of frostiness tending towards hostility evident in the parties’ contact with each other,
it does not demonstrate that bargaining is moribund or at an end. That the parties choose to
stipulate preconditions to each other or make outlandish claims about the content of the next
434 Exhibit MFB 8, paras 61 - 63
435 Exhibit MFB 19, para 16-17
436 Exhibit UFU 75, para 177
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agreement is hardly unsurprising either within the context of bargaining generally, or
especially within the context of bargaining between these parties.
[275] I take into account that the appeal to the Full Federal Court of the decision of Murphy
J in respect of UFU v CFA is reserved and that, depending upon the decision ultimately given
by the Full Court, clarity is likely to be given to the MFB and the UFU in respect of those
parts of the MFB’s preconditions for bargaining that have a connection with the implied
Constitutional limitation set out in Re AEU. Whether or not the decision of the Full Court
ultimately assists either party is not relevant to this proposition; rather what is relevant is that
the clarification by the Full Court will state the law, thus potentially assisting the parties and
perhaps encouraging the development of their respective bargaining positions around the law
as stated.
[276] In the event that termination of the 2010 Agreements were to be ordered by the
Commission, I consider a fundamental imbalance will be created whereby many of the things
sought by the MFB as being changes to the existing framework of employment conditions
will no longer need to be progressed by the MFB. Instead the employment conditions will
have been reset in a way which means the MFB will simply not need to debate the issue with
the UFU. To the extent there are similarities to be drawn between this matter and the decided
termination of agreement matters referred to in the foregoing analysis, I consider the
circumstances in this matter to be entirely distinguishable in one fundamental respect- the
resetting of employment conditions in such a significant way as would occur in this matter
does not appear to be a feature of the circumstances reported in Re Tahmoor Coal, ERA v
LHMU, RACV, or SDV Australia.
[277] As referred to at an earlier point, I take the view that it is more likely than not that
there will be in place, by the time the undertakings expire, a replacement enterprise agreement
of some type or another Fair Work Instrument, such as a Workplace Determination and that
the consultation provisions of the ongoing instrument are likely to be somewhere between the
content of the undertakings and the provisions of the 2010 Agreements. I have formed the
view, in the context of this matter, that the pessimism expressed in the matter of Re Tahmoor
Coal that termination would reduce the prospects of agreement being concluded through
bargaining, does not apply in this particular instance.
[278] The MFB workplace is appreciably larger, by many factors. The workforce is highly
unionised by a single union, and there appears to be little prospect of that feature changing. In
addition, the MFB is of course, a statutory body created by and responsible to the State of
Victoria. It provides a vital emergency service to millions of people. There are no prospects
of the employer being closed or the work of its core operational workforce being outsourced
on a large scale.
[279] These factors combine to mean there would be, in my view, a substantial impetus for
all concerned upon termination of the two 2010 Agreements to ensure the foreshadowed post-
undertaking arrangements did not come about. While this would be especially so for the
employees and the UFU, I extend my consideration of that impetus to the MFB itself and
even to the State of Victoria itself (even though it is not a direct bargaining representative or a
party to the agreements) for the reason it is the State which is accountable to the community
for the provision of the emergency service. All parties to the 2010 Agreements are highly
protective of their industrial rights and it seems improbable that the union especially would
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not take every possible step to change what would otherwise come about at the expiry of the
agreements.
[280] These features of the MFB, its employees and the UFU and my observations about the
impetus stand these agreements in distinction from those considered in the earlier decided
matters. The size of the workforce; its creation by and responsibility to a State Government;
the industrial posture of the employer and union; and the constitution of the employer as an
emergency service are important points of difference to the issues considered in ERA v
LHMU; Re Tahmoor Coal, SDV Australia; and RACV.
[281] It seems likely, on the basis of their industrial history and use of the FW Act, that
within 18 months other industrial arrangements of some sort will be in pace, whether that be
one or more replacement agreements or a Workplace Determination, which could potentially
be industrial action related or bargaining related437.
[282] Even so, I consider that the content of such Fair Work Instrument will not be as
advantageous to employees or the UFU in respect of the requirements for consultation; for
“agreement-to-change” arrangements; or for the progression of disputes. With the 2010
Agreements terminated, the tension in bargaining would be for terms and conditions built up
from what was now the base of employment conditions (whether that be the undertakings, the
Modern Award or the NES). As a result, it would be unlikely that the existing employment
conditions would be replicated in an ongoing instrument.
[283] Because of these factors my overall consideration in respect of the likely effect of
changes to the parties bargaining position is that termination of the 2010 Agreements will lead
to an appreciable and unmatched shift of the parties’ bargaining position in the favour of the
MFB.
Likely effect of potential consequential changes for the MFB, such as to its performance or
productivity
[284] The MFB contention is that with the termination of the 2010 Agreements, the MFB
will not have to consult and reach agreement before implementation of change, with it being
argued in relation to the MFB’s performance or productivity objectives that;
“(a) some of the content is operating in a way that is detrimental to the MFB and the
achievement of its statutory objectives;
(b) some of the content operates in a way that is detrimental to a productive, fair and
balanced workplace”438
[285] The MFB’s statutory objectives include those set out in the MFB Act, as amended and
supplanted by the Emergency Management Act 2013 (Vic), with the former providing the
following functions for the Metropolitan Fire and Emergency Services Board, being the
corporate entity created by the Act.
“7 Functions of Board
437 See FW Act, Pt 2-5, Div 3 and Div 4
438 Exhibit MFB 55, para 20.8
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(1) The functions of the Board are—
(a) to provide for fire suppression and fire prevention services in the
metropolitan district; and
(b) to provide for emergency prevention and response services in the
metropolitan district; and
(c) to carry out any other functions conferred on the Board by or under this Act
or the regulations or any other Act or any regulations under that Act.
(2) The Board has all powers necessary to carry out its functions.
(3) The functions of the Board extend to any vessel berthed adjacent to land which by
virtue of section 4(2) is part of the metropolitan district.”
[286] Section 7AA provides a duty for the MFB to assist in the response to any major
emergency occurring within Victoria, and further functions that now connect with the powers
and functions of the Emergency Management Act 2013 (Vic) are set out within s.7A of the
Metropolitan Fire Brigades Act 1958 (Vic);
“7A Objective
The objective of the Board in performing its functions and exercising its powers under
this Act is to—
(a) contribute to a whole of sector approach to emergency management;
(b) promote a culture within the emergency management sector of community
focus, interoperability and public value.”
[287] Is it more likely than not that termination of the 2010 Agreements will assist the MFB
in achievement of these objectives?
[288] The proposition that some content of the current agreements is detrimental to a
productive, fair and balanced workplace appears to stem from the MFB’s experience in
introducing change that would be unremarkable in many workplaces, as highlighted by some
of the disputes it has faced over matters such as decisions about the replacement of
equipment; attendance at field and training days; introduction of new software or workplace
policies or training; or decisions about how best to respond to extreme heat conditions.
[289] Some disputes will no longer be able to be agitated in the future either at all, or to the
degree that may have been possible to date, at least under the framework of the FW Act. The
dispute resolution procedure, at least as it is manifest in a post-undertakings Fair Work
Instrument, may prevent others from being dealt with by the Fair Work Commission in the
way they have been to date. For the period of the undertakings, the likely effect of the broad
commitment about what the dispute resolution process applies to, will be to continue to allow
most, and perhaps all, disputes that arise to be dealt with by the Commission, either for
conciliation or arbitration.
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[290] Articulated above, with reference to the likely effect of termination on changes in the
consultation framework and dispute resolution procedure are findings made about the
likelihood of there being improvements in those for the MFB. In particular, I found that there
would be an improvement, but the extent of the improvement will be dependent on the
enforceability of the undertakings and whether they give the Commission jurisdiction to deal
with disputes. This being the case, it follows that the likelihood of there being improvements
to the MFB’s performance or productivity will be similarly dependent on findings to be made
about the enforceability of the undertakings and whether the Commission has any or sufficient
jurisdiction to deal with disputes that may arise under the undertakings.
[291] The history of the relationships between the MFB, its employees and the UFU, amply
demonstrated with the evidence in these proceedings, is fractious and litigious, with frequent,
matters referred either for determination by this Commission or the Courts. It is likely,
tending towards certainty, that an immediate post-termination legal dispute would be
resolution of the question of whether the undertakings are enforceable and whether they, or
something else, give the Commission jurisdiction to deal with disputes. It can be expected
that this likelihood will temper such improvement as may be expected to the MFB’s
performance or productivity as a consequence of termination of the 2010 Agreements, at least
for the time that it takes the Commission or the Courts to resolve the matter, which may well
be a significant distance into the 18 months allowed for in the undertakings.
[292] Notwithstanding this predictability, and as referred to earlier, I consider it more likely
than not that there will be in place, by the time the undertakings expire, a replacement
enterprise agreement of some type, or another Fair Work Instrument, such as a Workplace
Determination and that instrument is likely to have within it consultation provisions and a
dispute resolution provision somewhere between the content of the undertakings and the
provisions of the 2010 Agreements.
[293] Drawing these factors together, I consider that there will be a positive impact for the
MFB’s performance and productivity, for the reason it will not be required to consult to the
level it has in the past, or for as long and will also not be subject to the “agreement-to-change”
or “status quo” provisions to which it is presently bound. However, the dimension of the
positive impact is subject to an externality, beyond the control of the MFB, being the
questions of the enforceability of the undertakings and the Commission’s jurisdiction to deal
with a dispute arising under the undertakings. In addition, the duration of the positive impact
is likely to be time-limited, firstly because of the time it may take for resolution of that
externality, and secondly because of the prospect of an ongoing Fair Work Instrument with
consultation and dispute resolution procedures enhanced from those within the undertakings,
proximate to the time of expiry of the undertakings.
[294] It is also the case that the size of the positive effect for the MFB is likely to be
attenuated by a further effect, the impression about which was amply evident in hearing the
evidence, but which was not addressed to any significant extent in the parties’ submissions.
[295] The illustrative matters to which I was taken by the evidence are certainly a mix of
problems associated with consultation and negotiation, together with the problems stemming
from the text of the agreements, but the benefit of seeing and hearing the 37 witnesses in a
continuous stream was to highlight that not all of the problems faced by the MFB stem from
the formalities of consultation and the “agreement-to-change” arrangements of the 2010
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Agreements. This view of the evidence leads to the proposition that the workplace inertia
faced by the MFB is likely to stem as much from formalities of the agreements as perhaps its
organisational and managerial culture.
[296] The examples of this proposition are legion. When Mr Christopher Watt, an Assistant
Chief Fire Officer of more than 10 years standing, and at the most senior levels of an
organisation of 1,800 operational staff refers to “the MFB” or “management” he doesn’t mean
himself, but those above him,439 even though in many other organisations he would be
considered as a senior executive with critical responsibilities for development and deployment
of strategy and culture. This belief about status or responsibility was not unusual; the
impression I gained was that senior staff frequently saw the MFB as an externality to them,
rather than them being an integral part of it, responsible for its direction, strategy and culture.
[297] When managers make decisions within the scope of their training, skill and authority,
but others, including their peers, disagree with those decisions, the disagreement is often
active and persistent, without the seeming potential for acceptance that “great minds may
differ”. The decision by Mr Darren Davies, another Assistant Chief Fire Officer, to move an
appliance from the Melbourne CBD to Sunshine North is such an example.440 Further
examples showing managerial or cultural dimensions to an issue, as well as those stemming
from the formal consultation and dispute resolution mechanisms of the 2010 Agreements can
be found in other illustrative matters: the MFB’s participation in a multi-agency appliance
display at Knox441; the loan of Breathing Apparatus Pod to the CFA at Bayswater;442 the
proposed relocation of the Northcote fire station443 and the proposed refurbishment of the
Eastern Hill Fire Station444; and the proposed wildfire awareness drill session.445 A further
example comes from some of the behaviours reported by Mr Youssef in relation to the
Hazlewood mine fire, in which he did not obtain critical information through his management
hierarchy, but through the union.446
[298] These factors lead to the view that, notwithstanding the termination of the 2010
Agreements, or the elimination of the “agreement-to-change” and dispute resolution features
of the existing agreements, there are other factors contributing to the formation and
progression of the disputes that feature in the illustrative matters. Objectively, such elements
of dysfunction are likely to be a factor in the dissipation of such gains as may arise from
termination of the 2010 Agreements; or, at the least, such elements are unlikely to assist those
gains that may arise.
[299] In all, I consider that these and other factors relevant to termination of the 2010
Agreements are likely to coalesce in such a way as to mean that the probability of there being
an ongoing very significant positive impact for the MFB’s performance and productivity from
termination of the 2010 Agreements is likely to be lower than might otherwise be anticipated.
439 Transcript, PN 10533 - 10536
440 Referred to in Exhibit MFB 55, Appendix T and Exhibit UFU 75, para 449 - 465
441 Exhibit MFB 55, Appendix F; Exhibit UFU 75, paras 379 - 380
442 Exhibit MFB 55, Appendix L; Exhibit UFU 75, paras 403 - 410
443 Exhibit MFB 55, Appendix D; Exhibit UFU 75, paras 366 - 371
444 Exhibit MFB 55, Appendix DD; Exhibit UFU 75, paras 555 - 559
445 Exhibit MFB 55, Appendix P; Exhibit UFU 75, paras 428 - 433
446 Transcript, PN 1570 - 1575
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On the other hand, it is also unlikely there would be no or insignificant positive impact
termination of the 2010 Agreements.
[300] I consider that, on balance, it is likely there will be a positive effect of termination
through consequential changes of termination of the 2010 Agreements for the MFB, such as
to its performance or productivity, however that positive effect is unlikely to be great, being
lower than might be anticipated by the MFB.
Likely effect of potential consequential changes for employees, such as for their safety at
work
[301] I consider that, for reason of the MFB’s recognition about the importance of
workplace safety, coupled with the statutory obligations of Victorian OHS legislation, it is
unlikely that an effect of termination of the 2010 Agreements will be a reduction in
employees’ safety while at work.
Likely effect of changes for the UFU
[302] There appears little, if any, direct evidence about the effect of termination on the UFU
as the employee organisation covered by the 2010 Agreements, and I can infer no specific
effects.
Summary - likely effects of termination of the 2010 Agreements
[303] In summary, after consideration of the likely effects of termination on each of the
employees, the employer and each employee organisation covered by the 2010 Agreements, I
have concluded the following in relation to each sub-factor considered by me;
The likely effect of termination on changes to conditions of employment will be a
significantly less favourable environment than now for employees for the
duration of the undertakings;
The likely effect of termination in relation to the consultation framework and
dispute resolution procedure;
will be a reduction in the matters the MFB faces that need to be the subject of
consultation; and none of those would be the subject of “agreement-to-
change” or veto requirements during consultation, or arbitration if a Modern
Award dispute could be raised about the matter;
Employees and the UFU will lose the opportunity to raise and progress
disputes with a genuine connection to occupational health and safety under
the auspices of an instrument such as the 2010 Agreements, governed as
they are by the FW Act;
The size of the changes referred to will be dependent on the enforceability
of the undertakings in a Court and the extent to which disputes that arise
are within the Commission’s s.739 dispute resolution jurisdiction. At the
minimum, the MFB will have some level of improvement from the current
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situation in relation to number or range of the matters requiring
consultation or progression through the dispute resolution procedure.
Termination of the 2010 Agreements will result in an appreciable and unmatched
shift of the parties’ bargaining position in the favour of the MFB;
On balance, it is likely there will be a positive effect of termination for the MFB
through consequential changes of termination of the 2010 Agreements, such as to
its performance or productivity, however that positive effect is unlikely to be
great, being lower than might be anticipated by the MFB.
It is unlikely that an effect of termination of the 2010 Agreements will be a
reduction in employees’ safety while at work.
I find no specific effects of termination on the UFU as the employee organisation
covered by the 2010 Agreements.
[304] The foregoing indicates that some of the sub-factors in relation to the effects on those
covered fall in favour of the MFB, lending support to the proposition that it may be
appropriate to terminate the 2010 Agreements and some against them. However the
consideration I have undertaken leads to the view there are two very significant likely effects
on employees and the UFU which, when viewed objectively against the factors weighing in
favour of termination, might lead to the view that it is not appropriate to terminate the
agreements. I refer in particular to my findings that employees and the UFU will lose the
opportunity to raise and progress disputes with a genuine connection to occupational health
and safety, and that termination of the 2010 Agreements will result in an appreciable and
unmatched shift of the parties’ bargaining position in the favour of the MFB.
[305] It is possible that either of these matters taken on their own, may be insufficient to lead
to a finding that it is inappropriate to terminate the agreements. However in some respects
such proposition is a hypothetical, since plainly the two have arisen together.
[306] The prospect of there being an appreciable and unmatched shift of the parties
bargaining position in the favour of the MFB is the more significant of the two factors.
[307] If that factor were on its own there would not be a compensating factor for the UFU
through any other mechanism, save perhaps for the possibility of there being findings in the
appeal of UFU v CFA that were wholly against the MFB’s contentions in respect of the Re
AEU implied Constitutional limitation.
[308] If that were the case, the possibility arises that the foreshadowed post-termination
bargaining imbalance could persist for some considerable time, even if there was an
imperative for the parties to conclude a new enterprise agreement or pursue a workplace
determination prior to the expiry of the undertakings. It is also the case of course that the
undertakings would become the base from which negotiations or consideration commenced.
This would be more against the interests of the UFU, as represented by the whole of the
employment conditions in the 2010 Agreements, than it was in the employees and union’s
favour.
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[309] On the other hand, at least some attributes associated with the lost opportunity to raise
and progress OHS disputes through the means of an enterprise agreement or other Fair Work
Instrument formed under the FW Act, might be capable of compensated through mechanisms
available through the OHS Act or other legislation.
[310] Having taken these matters into account, I consider the likely effect of termination on
each of the employees, the employer and each employee organisation covered by the 2010
Agreements, will be a significantly greater negative effect on the employees and the union
than the positive effect on the MFB. This is for the reasons firstly that disputes that have a
genuine connection with occupational health and safety will no longer be required to be the
subject of consultation and a requirement to reach agreement and will not be able to
progressed through the dispute resolution procedure; and secondly that termination of the
2010 Agreements will result in an appreciable and unmatched shift of the parties’ bargaining
position in the favour of the MFB.
Appropriate to terminate; “all the circumstances”
[311] Are there other circumstances to be taken account of?
[312] Consideration of “all the circumstances” does not show factors additional to those
specifically referred to within s.226(b)(i) and (ii) that require being taken account of.
Accordingly this consideration is a neutral factor.
Summary – appropriate to terminate
[313] My findings in relation to the likely effect of termination on those covered, are that
there will be a significantly greater negative effect on the employees and the union than the
positive effect on the MFB. I have made this finding for two reasons. Firstly because
disputes that have a genuine connection with occupational health and safety will no longer be
required to be the subject of consultation and a requirement to reach agreement and will not
be able to progressed through the dispute resolution procedure. Secondly, I have decided this
because termination of the 2010 Agreements will result in an appreciable and unmatched shift
of the parties’ bargaining position in the favour of the MFB. There are insufficient findings
stemming from my other consideration of the circumstances, effects or views that would
suggest the findings I have made about the effects on employees and the UFU are, in context,
lesser factors to be taken account of in my consideration of whether it is appropriate to
terminate the 2010 Agreements.
[314] I therefore consider that because of these two factors taken together, it is not
appropriate to terminate the 2010 Agreements.
9 CONCLUSION
[315] The finding that termination of the 2010 Agreements is not contrary to the public
interest is the first of two necessary pre-conditions for the Commission to be required to
terminate the 2010 Agreements.
[304] The other is that termination is appropriate.
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[316] Since I have found that it is not appropriate to terminate the two 2010 Agreements, I
must find the Commission is not required by s.226 to terminate them, and now make such
finding. I do not find there to be any other grounds that would give the Commission a
discretion to terminate the 2010 Agreements.
[317] Accordingly, the MFB’s Enterprise Agreement Termination Application must be
dismissed. An Order dismissing the application is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr F Parry, QC and Mr P Wheelahan (of Counsel) for the Metropolitan Fire & Emergency
Services Board
Mr H Borenstein, QC and Mr M Harding (of Counsel) for the United Firefighters’ Union of
Australia
Hearing details:
2014.
Melbourne:
July 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25
August 21, 22
Printed by authority of the Commonwealth Government Printer
Price code O, AE881004 PR557297
& THE FAIR WORK - OMMISSION THE SEA
