1
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Fire Rescue Victoria
(C2022/2043)
COMMISSIONER WILSON MELBOURNE, 2 DECEMBER 2022
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)]
[1] The United Firefighters’ Union of Australia (the UFU) alleges a dispute arising under
an enterprise agreement relating to the endorsement by Fire Rescue Victoria (FRV) of the
establishment of a firefighters’ registration board.
[2] The Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020
(2020 Agreement) obliges the FRV to endorse the establishment of a firefighters’ registration
board and to do so by demonstrating this through a letter of endorsement to the UFU.1 A
dispute has arisen under the 2020 Agreement about the FRV’s obligation and how it requires
fulfilment. This decision deals with that dispute.
[3] The UFU argues that the FRV must fulfil its obligation by entering into a Service
Contract with an entity it has formed for the purposes of firefighter registration, the Victorian
Professional Career Firefighters Registration Board Ltd (referred to as the Corporate Board).
[4] After extensive conciliation on the subject did not lead to an agreement between the
parties the UFU’s application was programmed for hearing on 29 and 30 August 2022. A
procedural decision issued by me on 10 October 2022 deals with a development which took
place after the hearing, being the admissibility of a statutory declaration prepared by the FRV’s
solicitor and dealing with a ministerial direction to the FRV.2
[5] Mr Herman Borenstein KC with Mr Ben Bromberg of Counsel appeared for the UFU
and Mr Malcolm Harding SC with Mr Matthew Minucci of Counsel appeared for the FRV. The
Victorian Attorney General and Minister for Emergency Services, Ms Jacqueline Symes MP,
sought and was granted intervention by me, represented by Mr Chris O’Grady KC with Ms
Rebecca Davern of Counsel. Each party and the Minister sought and was granted permission
by me to be represented by a lawyer with me being satisfied that to do so would enable the
matter to be dealt with more efficiently taking into account the complexity of the matter.
1 2020 Agreement, Division A, Clause 42,Division B, Clause 49.
2 [2022] FWC 2708.
[2022] FWC 3170
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 3170
2
[6] Two identical clauses in the 2020 Agreement are in question and are in these terms,
“FRV endorses the establishment of a firefighters registration board. FRV will
demonstrate this by letter of endorsement to the UFU Secretary.”
[7] The UFU seeks through the arbitration of the substantive dispute that the Commission
answers two questions and grants an order,
“Question 1 - Whether or not the UFU should be included as:
a. a party to the Service Contract?
b. a party to the consultation process under the Service Contract?
c. a party to the dispute resolution process under the Service Contract?
d. a party to a termination process, which requires agreement from both the
FRV and the UFU to initiate the termination of the Service Contract?
Question 2 – Whether Schedule 4 of the Service Contract should be amended to reflect
the VPCFRB’s Constitution.”
“PROPOSED ORDER BY FWC
Order that FRV enter into a contract with the Victorian Professional Firefighters
Registration Board Limited ACN 659 177 992 and the UFU in the form and to the
effect of the proposed service contract, subject to completion of the details in
Schedules 1 and 3 (which is attached as Attachment A to these orders), for the
provision by the company of the services of registering qualified firefighters for FRV
and such other services as are provided for in the contract.”
[8] The submissions of the parties on each of these matters are summarised below.
Submissions of the UFU
[9] Each of the above questions should be answered in the affirmative and the proposed
order issued. The UFU submitted that affirmative answers to these questions were appropriate
since its understanding was that, other than those clauses which were identified as in contest,
the remainder of the Service Contract was not contested by FRV.3
[10] In relation to the proposed order, and the proposed Service Contract to which it refers,
the UFU made submissions on two principal matters: whether the Commission can or should
make such an order, and what the form of the Service Contract should be. Its submissions on
these subjects were made in response to matters raised by the Minister following her refusal to
consent to the FRV’s entry into the proposed Service Contract and her subsequent intervention
in the arbitration of this matter.
Question One – Should the UFU be included as a party to the Service Contract?
3 Transcript, PN367 –370.
[2022] FWC 3170
3
[11] The UFU submitted that if it is found in the affirmative that they should be a party to
the Service Contract, then the answers to the three questions identified as sub-sets of Question
One at [7] above will necessarily follow in the affirmative.4
[12] It argued that the reason the dispute is being resolved by way of a Service Contract is
due to a request of the FRV, and the board could be established without such a contract, as the
Interim Board was.5 As the manner in which the proposed new board is being established,
through a service agreement, is at the behest of the FRV, the UFU should not be penalised for
assenting to this method of resolving the dispute. 6
[13] The UFU submitted that the Service Contract is properly understood as “a vehicle
through which the parties have agreed to resolve an industrial dispute.”7 The UFU being a party
to this contract is important, as it ensures the UFU has standing to protect the outcome of the
dispute by being able to enforce its terms.8 Further, as the main beneficiaries of the agreement
will be firefighters employed by FRV, almost all of whom are members of the UFU, the UFU
has a significant interest in being party so as to ensure the scheme works as intended and so that
it may be involved in the resolution of any difficulties or issue that arise.9
Question Two – Should Schedule 4 of the Service Contract be amended to reflect the VPCFRB
Constitution?
[14] In relation to Question Two, the UFU submitted that the proposed amendments to clause
5 of Schedule 4 of the Service Contract to reflect clause 17.1 of the VPCFRB Constitution
should be made to provide consistency between the VPCFRB Constitution and the Service
Contract, as consistency in these circumstances would provide certainty to the parties and
reduce the risk of further disputes.10
[15] The proposed order extracted above (the Order) is an amended version of the order
initially proposed by the UFU. On the second day of hearing the UFU tendered variations to
their proposed order which altered it such as to render the signature of the contract by FRV
under the order as subject to the completion of details in Schedules 1 and 3.11 On the second
day of hearing, the UFU also tendered a variation to the proposed Service Contract to which
the Order refers (the Service Contract). This variation altered clause 16.2 of the Service
Contract so that the need for the UFU’s consent to the termination of the Service Contract would
only be required while the 2020 Agreement remained in operation. 12 Previous to this alteration,
the requirement that the UFU consent to a termination of the Service Contract had no expiry
specified. 13
4 Transcript, PN374.
5 Transcript, PN440.
6 Transcript, PN449; Exhibit UFU1, Outline of Submissions[31], Digital Hearing Book (DHB) 29.
7 Transcript, PN439; Exhibit UFU1, Outline of Submissions[26], DHB 28.
8 Transcript, PN443; Exhibit UFU1, Outline of Submissions [29], DHB 28.
9 Transcript, PN446; Exhibit UFU1, Outline of Submissions [30], DHB 28.
10 Exhibit UFU1, Outline of Submissions [40] – [42, DHB 30.
11 Transcript, PN506.
12 Transcript, PN503.
13 Transcript, PN503.
[2022] FWC 3170
4
FRV Submissions
[16] The FRV’s position was circumspect, giving wary support to the matters before the
Commission. The FRV’s written submissions were tendered into evidence through the filing
of a statutory declaration of David Catanese, the FRV solicitor, which attached correspondence
from the Minister to the then Acting Fire Rescue Commissioner refusing consent.14 Neither the
FRV’s brief outline of argument, nor the statutory declaration, expressed a view as to the
consequences of this refusal of consent, other than to note the Minister’s view that the FRV
must ensure the Fair Work Commission (FWC) and the affected parties were advised in a timely
manner that ministerial consent had not been provided.15
[17] In its oral submissions, the FRV submitted that it did not oppose either affirmative
answers to the questions or for the Order as amended to be granted16 and, in relation to the
Matters Pertaining Issue, stated that,
“The FRV has proceeded on the basis that those clauses are matters that pertain to the
employment relationship and as the agreement indicates, the FRV agreed to include
those clauses therein, on that basis.”17
The Minister’s Submissions
[18] The Minister opposed the Commission determining the dispute in the manner sought by
the UFU. In particular, the Minister argued that the FRV was obligated not to sign the Service
Contract and that “for FRV to sign the agreement, it would be acting beyond power and, in
effect, ultra vires”.18
[19] The Minister’s submissions, and the UFU responses to them, may be divided into four
primary jurisdictional matters:
1. Whether there is an extant dispute to be arbitrated (the Extant Dispute Objection);
2. Whether clauses 42 and 49 of the Agreement are matters that properly pertain to
the Agreement in accordance with ss.172 and 253 of the Act (the Matters
Pertaining Objection);
3. Whether the proposed Service Contract tendered to the Commission would
impermissibly fetter the powers granted to the FRV under the Fire Rescue Victoria
Act 1958 (Vic) (FRV Act) (the Fettering Objection);
4. Whether the Minister’s indication that she did not consent to the FRV’s entry into
the proposed Service Contract entailed that the Commission should not use the
14 Exhibit FRV1, Statement of David Catanese with Attachment, DHB130 – 134.
15 Ibid.
16 Transcript, PN516.
17 Transcript, PN520.
18 Transcript, PN652 – 655.
[2022] FWC 3170
5
power granted under s.739 to order the FRV the enter in the agreement (the
Ministerial Consent Objection).
[20] In addition to these jurisdictional matters, the Minister also submitted that, regardless of
the jurisdictional finding, the concerns raised by her refusal to consent are substantive and
should be found by the Commission to weigh against granting the order sought (the Service
Contract Content Objection).
[21] Before turning to the matters requiring determination relevant content of the 2020
Agreement should be noted:
Formation of the 2020 Agreement was the subject of extensive consideration by Deputy
President Gostencnik in 2020. Orders made by the Deputy President included
incorporating predecessor enterprise agreements as transferable instruments, with
Division A applying to former MFB employees and Division B applying to former CFA
employees. A byproduct of the situation is that there are separate terms, albeit
substantively identical, applying to each Division for the matters requiring consideration
in this decision.
The two registration board terms are set out above. Observably the 2020 Agreement
does not specify the form of the registration board to which the FRV must give support.
Conceivably the board could be an internal function established for that purpose, a third-
party entity, or, indeed, one established by legislation.
The 2020 Agreement’s dispute resolution procedures are within the Agreement’s
Division A (applicable to former MFB employees) at clause 21, page 39, and Division
B (applicable to former CFA employees) at clause 26, page 413. The provisions are
wide and allow disputes to be raised and progressed about a broad range of matters. The
Division A term provides the following (with the Division B term in substantively
identical terms):
“21. DISPUTE RESOLUTION
21.1. This dispute resolution process applies to:
21.1.1. all matters arising under this Division; and
21.1.2. all matters relating to the application of, or for which express provision
is made in this Division; and
21.1.3. all matters pertaining to the employment relationship, whether or not
express provision for any such matter is made in this Division; and
21.1.4. all matters pertaining to the relationship between FRV and UFU, whether
or not express provision for any such matter is made in this Division; and
21.1.5. all matters arising under the National Employment Standards.
[2022] FWC 3170
6
The parties agree that disputes about any such matters may be dealt with by
using the provisions in this clause.”
A stepped escalation process is set out within each clause for unresolved matters, with
the final step stated in the following way (from Division A);
“21.2.6. Step 5 If the matter is not settled following progression through the
disputes procedure it may be referred by the union or the employer to FWC. The
FWC may utilise all its powers in conciliation and arbitration to settle the
dispute.”
CONSIDERATION
Steps taken for the formation of a registration board
[22] A proposal to establish the Victorian Professional Career Firefighter Registration Board
(VPCFRB), referred to by the UFU as the Interim Board, was first considered by the
MFB/CFA/UFU Integrated Consultative Committee on or around 24 April 2020. After the FRV
was formed on 1 July 2020 the proposal was put to the newly formed Integrated Consultative
Committee on 25 September 2020. The proposal was then put to the same committee in
February 2021 and endorsed on that occasion. 19
[23] On 23 April 2021 the FRV’s Fire Rescue Commissioner wrote to the UFU Secretary
providing an endorsement of sorts for the establishment of a firefighters’ registration board,
with the correspondence in these terms,
“Dear Mr Marshall
Establishment of the Victorian Professional Career Firefighters Registration Board
I am pleased to inform you that at its meeting on Thursday 15 April 2021 , the Fire
Rescue Victoria Executive Leadership Team endorsed, and I have approved, the
immediate establishment of the proposed Victorian Professional Career Firefighters
Registration Board ('Registration Board') in accordance with the attached terms of
reference that were agreed upon by the Operational Consultative Committee in February
2021.
As a first step towards formal establishment, the Registration Board's members must be
nominated for appointment.
Pursuant to clause 6.3 of the terms of reference for the Registration Board:
1. Fire Rescue Victoria appoints two members
2. United Firefighters Union - Victorian Branch appoints two members
19 Exhibit UFU4, Witness Statement of Laura Campanaro [17] – [20], DHB 33; Exhibit UFU4, Attachment LC – 2, DHB 46.
[2022] FWC 3170
7
3. United Firefighters Union - Victorian Branch appoints one senior retired
professional career firefighter from the Country Fire Authority, the former
Metropolitan Fire and Emergency Services Board of Fire Rescue Victoria with
professional operational training experience.
The term of members' appointments is three years and their role and functions are
detailed in the terms of reference.
Only the senior retired professional career firefighter member is to be remunerated for
service on the Registration Board. This member's remuneration is required to be set 'at
an appropriate commercial rate for Board services'.
Once appointed, the first tasks of the members include holding the first meeting of the
Registration Board at which they must select the Chairperson and Deputy Chairperson
(clause 6.6) and appointing the Secretariat to support the Registration Board (clause
6.8).
To progress the appointment of suitable members, I would be grateful to receive the
United Firefighters Union - Victorian Branch nominations for the two ordinary
members and the senior retired professional career firefighter member, accompanied by
each nominee's board resume and contact details. Should you have any queries or
require any additional information, please contact Fire Rescue Victoria's contact officer
for the establishment of the Victorian Professional Career Firefighters Registration
Board, Assistant Chief Fire Officer Ed Starinskas, telephone: [omitted] or email:
[omitted].
Yours sincerely
Ken G Block
Fire Rescue Commissioner”
[24] On 2 September 2021 the Interim Board held its first meeting and commenced issuing
registration certificates. On 6 December 2021 the business name “Victorian Professional Career
Firefighters Registration Board” was registered.20
[25] The UFU submits that “[b]etween early December 2021 and March 2022 little progress
was made towards the establishment of a permanent registration board as envisaged by the 2020
Agreement, and consequently, the UFU raised this dispute” (underlining added). There is
limited material before the Commission about why the UFU considers the Interim Board
arrangements to be insufficient and why there should be a permanent registration board, or even
how a permanent board differs from an interim board. Ms Campanaro’s witness statement sheds
some light on these issues and the positions of the parties on the subject in October 2021. Her
summary, which follows, is against the backdrop of “endorsement of the updated VPCFRB
paper/schedule in August 2021”:
20 Exhibit UFU1, UFU Outline of Submissions [13] – [15], DHB 26.
[2022] FWC 3170
8
”24. On 14 October 2021, I wrote to Deputy Commissioner Brendan Angwin and Deputy
Secretary Kirstie Schroder on behalf of the UFU. In that correspondence, I sought the
following:
a. An update on the progress of certification/registration of FRV operational members
by the Interim Board;
b. Confirmation that the FRV agree that the Interim Board should operate independently
from both the UFU and FRV.
c. Confirmation that despite being funded by the FRV, the Interim Board will maintain
independence uncompromised by the funding.
d. Confirmation that the Interim Board has no relationship to the registration board that
had been foreshadowed in the Fire Rescue Victoria Act 1958 (VIC).”21
[26] Deputy Commissioner Angwin responded to Ms Campanaro’s correspondence on 18
October 2021. Regarding Ms Campanaro’s enquiry as to the progress toward implementation
of the Victorian Professional Career Firefighter Registration Board he advised,
“Response
We have engaged the services of Wayne Carlson as the Implementation Director to
enable the board to be established.
Wayne Carlson provided me with an update on activities currently underway.
Establishing the VPCFRB as an independent legal entity.
Sourcing suitable accommodation and resources for the functional
implementation of the VPCFRB.
Gathering and processing registration data for all FRV Firefighters to enable
registration.
Developing a process for the registration of Firefighters into VPCFRB that is
expected to commence by the end of November.
Formulating a lateral entry process.
Working with FRV to establish seed funding to support the establishment of the
VPCFRB
Scheduling of VPCFRB meetings to progress matters.”22
21 Exhibit UFU4, Attachment LC – 5 [34], DHB.52.
22 Exhibit UFU4, Attachment LC – 6, DHB 54 – 56.
[2022] FWC 3170
9
[27] The correspondence from DC Angwin then deals with four other matters raised by Ms
Campanaro on behalf of the UFU: the independence of the Board, matters of funding, the
Board’s relationship with the statutory board, and “ownership” of the Board. DC Angwin’s
correspondence is somewhat difficult to read because of its formatting, so the following
reproduces firstly the questions posed by Ms Campanaro and then, below his response,23
Campanaro: “The UFU also seeks confirmation that FRV agree, as does the UFU, that
the VPCFRB is an independent board operating independently of both UFU and FRV.
We note that the Constitution of the Board (the board paper/schedule) includes FRV
and UFU- appointed representatives however having such representatives is no different
to any other board involving members/appointees – all Board members are independent
to the organisation from which they come.
o Angwin: “Response
FRV agrees that the VPCFRV is an independent board operating
independently of both FRV and UFU.”
Campanaro: “In addition to the above, the UFU seeks confirmation in relation to the
VPCFRB’s funding. Any such funding must be on a basis that does not compromise the
VPCFRB’s independence and, of course, we would assume that FRV has taken this into
consideration, as has the UFU. The UFU seeks written confirmation that an organisation
that merely provides funding in some form or another to the VPCFRB does do so on the
basis of not compromising the VPCFRB’s independence.”
o Angwin: “Response
FRV agree that providing funding to VPCFRB does not compromise its
independence.”
Campanaro: “It is noted, and I understand clearly understood, that this Registration
Board, which has been created under the Enterprise Agreement (via Consultative
Committee) to which UFU and FRV are parties, has the basis of federal legislation. As
such, the VPCFRB has no relationship to the foreshadowed Board provided for in the
Fire Rescue Victoria Act 1958 (Vic), which is prosecuted under state legislation.
The UFU seeks clear confirmation regarding the above. Of course, we would be
surprised if there is any divergence of views, given this matter was extensively discussed
prior to the establishment of the VPCFRB in accordance with the paper(s) submitted to
the Consultative Committee.”
o Angwin: “Response
FRV confirms that VPCFRB has no relationship to the foreshadowed board
provided for in the FRV act 1958(VIC).”
Campanaro: “Lastly, and to give effect to the above, the UFU will instruct its
lawyers to draft a Statement of Intent with regards to the principles as prescribed, so
that there is no misunderstanding as to the ownership of the VPCFRB (ie. that it is
23 Ibid; Exhibit UFU4, Attachment LC – 5, DHB 52.
[2022] FWC 3170
10
not owned by FRV or UFU – it is an independent body that merely gives effect to
issuing the qualifications and registering personnel in accordance with the
qualifications prescribed).”
o Angwin: “Response
FRV is willing to provide support, if required, to assist in this action”
[28] What springs from this exchange is that the UFU was acutely concerned about the need
for an ongoing board which operates separately and independently from the FRV, and that the
FRV shared that view, communicating as such to the UFU. The last part of the reproduced
exchange is particularly illuminating; the UFU and FRV agree that neither “own” the Board,
which instead is to be an independent body, and that both agree its formation is to be guided by
a Statement of Intent to be drafted by the union’s lawyers.
[29] The UFU argue that affirmative answers may be given to each of the questions for
determination set out above. The FRV merely submitted it did not oppose affirmative answers
to the questions and did not oppose the amendment made by the UFU to its draft order, handed
up in the course of the hearing.24
Consideration of the Minister’s Objections
[30] Each of the Minister’s five objections, if accepted, may lead to a finding against relief
in the form sought by the UFU and I turn now to a consideration of each.
The Extant Dispute Objection
[31] The primary position of the Minister was submitted to be that there is no extant dispute
to be arbitrated based on a correct interpretation of the language of clauses 42 and 49.25
[32] The first sentence of the registration board clauses was submitted by the Minister to be
a statement of fact, which accordingly did not create obligations on either party or the basis for
a dispute.26 The only obligation created by the clauses was that FRV send a letter to the UFU
secretary endorsing the establishment of a firefighters’ registration board. It is not in dispute
that such a letter was sent on 23 April 2021. Accordingly, the obligations imposed by clauses
42 and 49 had been discharged by FRV.27
[33] The continuation of the dispute past the provision of this letter means that what is sought
in relief is the imposition of “a new suite of obligations” on the FRV which are inconsistent
with the terms of the Agreement, inconsistent with the no extra claims clause therein, and
impermissible for the Commission to impose.28
24 Transcript, PN516.
25 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022, [33].
26 Ibid [25].
27 Ibid [24] – [25]; Transcript, PN191.
28 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022, [30] – [31]; Transcript PN191.
[2022] FWC 3170
11
[34] The broader aspects of the dispute resolution procedure, clauses 21.13 and 21.14, cannot
be used to impose new obligations in respect of subject matter which has already been
concluded.29 The FRV submitted that Metropolitan Fire and Emergency Services Board v
United Firefighters’ Union of Australia is authority for this position, specifically standing for
the fact that new obligations may be imposed under the clause which was at that time the
equivalent of clause 21.1(3), but that this can only occur in circumstances where those
obligations are truly new, either not dealt with in the Agreement, or dealt with to the extent that
it is left to be determined in due course by the Commission.30
[35] Further, the Minister in oral arguments submitted that, to the extent that the Commission
might find that there was an obligation to actually establish a Fire Registration Board, this
obligation had been discharged through the establishment of what has been referred to
otherwise as the ‘interim Fire Registration Board’, with the fact that this board fell into
abeyance irrelevant to this fact.31
[36] It was submitted by the UFU that the submission no extant dispute remained entailed a
misinterpretation of the clauses 42 and 29. These clauses are correctly understood as containing
two elements: the endorsement by FRV of the establishment of a Fire Fighters Registration
Board and the demonstration of that by a letter of endorsement to the UFU secretary.32 To
interpret the clause as pertaining only to the sending of the letter would be an interpretation
“divorced from any industrial reality.”33 It is implicit in the endorsement of the registration
board that there is an agreement it will exist and the dispute relates to the question of how it
will be established. This is a permissible matter which has neither been foreclosed now resolved
by the relevant clauses.34
The Matters Pertaining Objection
[37] The Minister’s secondary argument, made in the alternative, is that clauses 42 and 49 of
the Agreement do not pertain to the relationship between FRV and its employees, or FRV and
the UFU, for the purposes of s.172 of the Act and accordingly have no effect pursuant to s.253
of the Act.35 As clauses 42.1 and 49.1 of the Agreement concern an agreement between the
FRV, a commercial third party, and the UFU, they do not concern the relationship between the
employer as an employer and the employee organisation as representative of the employees
covered by the Agreement. Accordingly, in line with s.739 of the Act and ss. 666 and 675 –
678 of the Explanatory Memorandum to the Fair Work Act 2009, they are properly understood
as matters which do not pertain, and which the Commission may not exercise powers under
s.739 of the Act to determine.36
29 Transcript, PN555.
30 [2012] FWAFB 9555, [22] – [25]; Transcript, PN568.
31 Transcript, PN581 – PN583.
32 Transcript, PN319.
33 Transcript, PN321.
34 UFU Submissions in Reply, [21].
35 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022, [33], [35].
36 Ibid [36] – [39]; Transcript, PN591.
[2022] FWC 3170
12
[38] In response to the submissions of the UFU that the execution of the Service Contract is
properly understood, in accordance with Electrolux, as an “ancillary or machinery provision”
to the resolution of an industrial dispute wherein the UFU is representing employee interests,
the FRV submitted that this was a misinterpretation, and the execution of the Service Contract
is correctly understood as “a substantive matter that is both discrete and significant” and
accordingly is a matter which does not pertain.37
[39] While the UFU submits that the question of whether the dispute is a matter pertaining
need not be considered, as the establishment of the registration board is made express provision
for in clause 42, they also submit that even if this were not the case the dispute would properly
be found to be a matter pertaining to the employment relationship.38
[40] Clause 21.1 of the dispute resolution clause is adequate and sufficient to sustain the
dispute about the establishment of the Fire Fighters Registration Board as, to be covered by this
clause, a matter only needs to be dealt with in the relevant division.39 Arguments to the contrary
raised by the Minister are based on a misconception of the dispute. The dispute is properly
characterised as “about the establishment of a registration system for firefighters in the FRV.”40
On the basis that employees “have an interest in the workforce being properly qualified and
skilled,” to the extent which the registration scheme deals with that issue it is clearly a matter
pertaining. 41
[41] Counsel submitted that the signature of the Service Contract is correctly understood as
ancillary to the resolution of this dispute, and not the subject matter of this dispute itself. In
support of this paragraph [97] of Electrolux42 was cited and it was noted that,
“…the dispute could just as easily be resolved by setting up a registration board without
contract, and that speaks to the correctness of the submission we put, that the substantive
dispute is about a registration board being established. The machinery by which it is
established is incidental and doesn't detract from the registration board being a matter
pertaining.”43
[42] It is appropriate to determine the Extant Dispute and Matters Pertaining Objections
together.
[43] The Minister’s Extant Dispute objection relies on a view that any dispute on the subject
of the firefighters’ registration board is confined to the things within the two clauses. If
accepted, the Minister’s submission on the Matters Pertaining issue would also lead to the
Commission not accepting a dispute could be raised and agitated on the subject of the
firefighters’ registration board.
37 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309, [97]; Transcript, PN126 –
PN134 and PN277.
38 Transcript, PN326.
39 Transcript, PN323 – PN324.
40 Transcript, PN98
41 Transcript, P124.
42 Transcript, PN134.
43 Transcript, PN136.
[2022] FWC 3170
13
[44] The Matters Pertaining argument entails a necessarily limited view of the subject matter
of an enterprise agreement in general, and this one in particular, as well as of the disputes that
may be raised under the agreement.
[45] Enterprise agreements may properly deal with all matters pertaining to the employment
relationship, as well as matters pertaining to the relationship between the employer and the
union. In generality, matters pertaining are “matters which affect employers and employees in
their capacity as such that ‘pertain to the relations of employers and employees’”.44 For an
agreement to be certifiable “it must be about matters pertaining to the requisite relationship or
to “the relationship between employers and employees” in their capacity as such”.45 The terms
of the agreement are to be about matters pertaining to the requisite relationship, or about matters
ancillary or incidental to those matters, or machinery provisions with respect to those matters.46
[46] In Re Application by Metropolitan Fire and Emergency Services Board Deputy
President Gostencnik dealt with a number of objections to approval of an enterprise agreement.
The objections included that particular terms of the agreement might impermissibly interfere
with managerial prerogative and were “veto terms”, giving the UFU “a power to simply cancel
the progressing of decisions and actions of management”.47It was argued that the veto terms
could not constitute a matter pertaining to the employment relationship with the terms lacking
“the necessary connection with the relationship between an employer in its capacity as an
employer and an employee in his or her capacity as an employee in a way which is direct and
not merely consequential”.48 The Deputy President summarised the objection by the Minister
for Jobs and Industrial Relations thus,
“The veto terms pertain to a matter of a fundamentally different character. They do not
operate to fix a particular term and condition of employment on the subject to which the
term is directed. The terms are instead directed to the power to make a decision on the
subject. As such, these terms are of a very different character and are not permitted
matters.
The Minister contends that the veto terms go to the heart of the ability of the MFB to in
truth be an employer and manage its business now and into the future. The veto terms
also take the UFU well beyond its representative capacity and into a managerial capacity
— at the managerial table. The presence of the UFU at the managerial table is not limited
by way of discussion or consultation, but with a right of veto in respect of nearly all
meaningful operational and managerial decisions that may otherwise have been made
by the MFB. As such, these provisions do not pertain to the relationship between an
employer and a union as described in s 172(1)(b). This is because the term must relate
to the UFU’s legitimate role in representing the employees to be covered by the
44 Electrolux Home Products Pty Ltd v Australian Workers Union 2004 221 CLR 309 (2004) 133 IR 49, [9] per Gleeson CJ.
45 Ibid [81] per McHugh J.
46 Ibid [100] per McHugh J.
47 [2019] FWC 106, (2019) 284 IR 239, [306].
48 Ibid [308].
[2022] FWC 3170
14
Agreement. The Minister contends that the veto right terms give a role to the UFU in a
managerial capacity, rather than a representative.”49 (references omitted)
[47] In resolving the objection, the Deputy President considered at length the development
of the “matters pertaining” formulation, both for the types of matter pertaining to the
employment relationship and for those pertaining to the relationship between an employer and
the employee organisation covered by an enterprise agreement, including matters dealt with in
the Explanatory Memorandum to the Fair Work Bill 2008 (Cth). He summarised his
consideration as follows,
“It seems to me to be clear both from the terms of s 172(2)(b), and such exposition as the
Explanatory Memorandum provides, that terms of an enterprise agreement which
facilitate the capacity of an employee organisation covered by an agreement to represent
its members who are covered by the agreement will pertain to the relationship between
the employer and the employee organisation. It will only be in a case where there is
clearly no nexus between a term of an agreement and the representative function of the
employee organisation that the term will not pertain.
I also agree with the MFB that the Minister’s characterisation that terms of an enterprise
agreement which deny, or which operate to overturn, or which are otherwise antithetical
to the employer holding and exercising a fundamental management function,
necessarily do not pertain to the requisite relationship, should be rejected. This is
because the characterisation invokes a binary approach that is inconsistent with modern
authority about whether a term pertains to the requisite relationship.
As the decisions in Federated Clerks’ Union of Australia v Victorian Employers’
Federation and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd make
clear, an assessment whether a matter pertains is not to be conducted on the basis that
there are mutually exclusive segments into which matters pertaining on the one hand
and management or managerial decisions on the other can separately be assigned. The
issue is whether a matter pertains to the employment relationship. A matter will pertain
to the relationship of employers and employees if it directly affects the conditions of
employees, which includes all the elements that constitute the necessary requisites,
attributes, qualifications, environment or other circumstances affecting the employment.
If a matter pertains, then the fact that it also intrudes upon managerial prerogative does
not change its character.
I do not accept that the impugned terms of the Agreement do not directly affect the
conditions of employees, which includes all the elements that constitute the necessary
requisites, attributes, qualifications, environment or other circumstances affecting the
employment. Once it is understood that managerial prerogative and the requisite
relationship are not consigned to mutually exclusive segments, it is difficult to conclude
that the impugned terms, which are said to be “veto powers” and which on their face
appear also to directly affect conditions of employment of the employees covered by
49 Ibid [309] – [310].
[2022] FWC 3170
15
the Agreement as just described, do not then directly affect the relationship between the
MFB and the UFU in its capacity of representing its members.”50 (references omitted)
[48] In finality the Deputy President concluded,
“The question remains whether the provision can be characterised as pertaining to the
relationships between the MFB and its employees or between the MFB and the UFU as
an organisation representing its members covered by the Agreement. A term of an
enterprise agreement will be so characterised if it directly affects the conditions of
employees, which includes all the elements that constitute the necessary requisites,
attributes, qualifications, environment or other circumstances affecting their
employment, or the capacity of the UFU to represent its members in respect of such
matters.”51
[49] Application of these principles leads to the conclusion that the firefighters’ registration
board provision is a matter pertaining.
[50] The first sentence of each term is a commitment given by the FRV at the time the 2020
Agreement was made. In simple terms, that commitment is open support by the FRV of
establishment of a firefighters’ registration board; although the questions of who establishes it
and for what purpose are not dealt with by the sentence.
[51] While there could be many forms for a firefighters’ registration board, there is nothing
about its most basic form that could be said to be beyond a matter pertaining. At its most
elemental such a board would likely keep a register of the names and qualifications of registered
firefighters and perhaps stipulate minimum requirements for registration. None of those things
would on their face be beyond a matter permitted. Very clearly, the keeping of records relating
to qualifications achieved, and their sufficiency to work as a professional firefighter, are things
which could affect firefighters’ conditions of employment including “all the elements that
constitute the necessary requisites, attributes, qualifications, environment or other
circumstances affecting” employment.52 The same may be said of endeavours by a registration
board to stipulate the minimum requirements for registration.
[52] The second sentence of each term requires something to be done prospectively by the
FRV, namely, to demonstrate its endorsement of the board through a letter to the UFU
Secretary. That obligation is also a matter pertaining, in the sense of it being pertinent to the
relationship between the FRV and the UFU, since it will allow the UFU to represent its
members in relation to matters associated with their registration. The union is entitled to know
in its representation of its members whether the FRV supports the formation of the firefighters’
registration board and any conditions that the FRV may seek to place on its formation.
[53] It is appropriate at this juncture to return to the Extant Dispute objection. In short, the
objection is made for the reasons summarised above. The first sentence of the firefighters’
registration board terms is a statement of fact – that the FRV endorses the establishment of a
50 Ibid [324] – [327].
51 Ibid [330].
52 Ibid [326].
[2022] FWC 3170
16
firefighters’ registration board – with the being no further work to be done for compliance
beyond the sending the letter to the UFU Secretary. It is then argued that the present dispute,
such as it is, seeks to impose new obligations on the FRV.
[54] There is little question that the dispute as presently characterised goes to matters
pertaining to the employment relationship or the relationship between the union and the
employer, being the FRV. There is a genuine impasse between the parties about the form of the
board and how they may each influence’s operations and functioning, within the context of its
independent operation, and arms-length from either the FRV or the UFU.
[55] The Minister argues that the capacity for the Commission to arbitrate this matter is
limited, especially when regard is had to s.595 of the FW Act and the 2020 Agreement's “No
Extra Claims” provision,
“28. The functions of the Commission are prescribed by the FW Act. The only relevant
function that arises is “dealing with disputes as referred to in section 595”. Section 595
empowers the Commission to deal with a dispute: (i) by arbitration (including by making
any orders it considers appropriate) if it is expressly authorised to do so under or in
accordance with another provision of the Fair Work Act; or (ii) other than by arbitration
as it considers appropriate, including by mediation or conciliation or by making a
recommendation or expressing an opinion.
29. However, the Commission’s power to deal with the dispute does not extend to the
variation of the FRV Interim Agreement to impose some additional obligation on FRV
to require it to enter into the Proposed Service Agreement. The relief sought by the UFU
illustrates the point. Here, what is sought is to impose a potentially indefinite suite of
obligations on FRV limiting its ability to engage with a commercial third-party,
impacting upon its ability to employ and potentially promote persons within FRV,
impacting upon its ability to consult with and resolve disputes with a commercial third-
party and which would appear to involve a significant and ongoing financial
commitment that FRV would be unable to bring to an end without the agreement of the
UFU.
30. Whether the “matter” of establishing a firefighters registration board pertains to the
relationship between FRV and its employees, the relationship between FRV and the
UFU, could be said to arise under “this Division” or relate to an express provision made
in “this Division”,10 this subject matter is comprehensively dealt with for the purposes
of the Agreement by clauses 42 and clause 49. Those clauses exhaust that subject since
no other clause adds anything further, an outcome confirmed by clause 29 of Division
A and clause 34 of Division B of the Agreement each of which stipulate in identical
terms that:
There shall be no extra claims by any party.
31. The FWC may not through an exercise of arbitral power make a decision that is
inconsistent with clauses 42 and 49. Doing so is precluded by section 739(5) of the FW
Act. Requiring FRV to take additional, quite particular, steps about a firefighters’
registration board beyond the endorsement steps prescribed by the Agreement would
[2022] FWC 3170
17
not accord with what is stipulated and would amount to an extra claim on the same
subject, enlivening section 739(5).
32. The power to deal with the variation of enterprise agreements is dealt with
exhaustively in Div 7 of Part 2-4 under the FW Act (rather than in the Parts of the FW
Act which deal with the Commission’s dispute resolution power more generally).
Within Div 7 of Part 2-4, there are three types of applications which could be made to
the Commission to vary the Interim Enterprise Agreement, none of which permit the
Commission to order variation in the arbitration of a dispute.”53
[56] The proposition that the subject matter of a firefighters’ registration board could be
determined simply through giving of a public commitment and the sending the letter, while
attractive, pays insufficient attention both to the subject matter of the clause and the relationship
of those covered by the 2020 Agreement.
[57] As may be seen by from the material filed in this dispute, and the FRV Act, there could
be a myriad of possibilities for the form and functions of a firefighters’ registration board. It is
unlikely that any party could have contemplated that design and implementation of the board
could be resolved quickly or without initial disagreement. I do not agree that within this context
either the dispute resolution procedure, the no extra claims clause, or the firefighters’
registration board terms are to be construed as preventing disputes from being raised, agitated,
and resolved in relation to the mechanics associated with formation of the firefighters’
registration board.
[58] As a consequence, I do not uphold either the Extant Dispute or Matters Pertaining
objections.
The Fettering Objection
[59] The Minister argued in initial oral submissions that the arrangement for a registration
board to remain in place in perpetuity until the UFU permits the FRV to terminate it is
necessarily a significant fetter on the capacity of FRV to exercise the powers which it is granted
under the FRV Act in respect of the employment of firefighters.54
[60] In response to the UFU’s proposed alteration to the services agreement, tendered to the
Commission on the second day of hearing, which responded to this concern by providing that
the length of the contract would be for the life of the 2020 Agreement, the Minister submitted
that this did not resolve the concern. This was due to uncertainty as to when the 2020 Agreement
would end, and the possibility of developments which might occur in that time, specifically in
respect of the statutory Fire Registration board, which had the potential to give rise to an
unworkable situation.55
53 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022,
54 Transcript, PN252.
55 Transcript, PN527.
[2022] FWC 3170
18
[61] The Minister also submitted that the Service Contract, and potentially the Board
Constitution to the extent it was incorporated and imposed obligations on the Contractual
Registration Board, would impose a fetter on FRV’s power under s.25B of the FRV Act and,
on this basis should be found ultra vires and void.56
[62] The UFU submitted that the concerns raised by the Minister regarding the fettering of
the power of the FRV were not substantiated.
[63] In support of this position, the UFU noted that the submissions of the Minister appeared
to presuppose that any fetter on the power of the FRV was impermissible and submitted this
was a principle which did not reflect the relevant authority on the issue.57 The relevant analysis
is instead of the extent to which a power is fettered.58
[64] The UFU submitted that the FRV’s entry into the Service Contract did not entail a fetter
on the FRV’s powers which went beyond the permissible extent. The ‘fetters’ pointed to by the
Minister were all matters which had been agreed to by the FRV; fell within the powers of the
FRV for carrying on of its functions; and had already been imposed by virtue of formation of
the 2020 Agreement.59
[65] The Fettering Objection relies on the potential for orders of the Commission, or things
done within the Service Contract, to impinge on the functioning of the FRV, being established
by, and an emanation of, the State. The Minister initially argued about the board as proposed
“that this arrangement is to remain in place in perpetuity unless and until FRV is given
permission from the UFU to terminate it, we would submit there is necessarily a very significant
fetter on the capacity of FRV to exercise its powers in respect of the employment of firefighters
in the State of Victoria”, however later submitted that the UFU’s concession that the board
should only continue for the duration of the 2020 Agreement “addresses part of the problem
associated with the UFU being involved in any decision to terminate the agreement, it doesn't
remove the entirety of the problem”.60 By way of illustration about the greater effects of the
fettering which concerned the Minister it was submitted,
“44. The term contained in the Proposed Service Contract, by which FRV would be
agreeing with the UFU not to employ any external professional career firefighter not
registered by the Corporate Registration Board is already an obvious fetter on FRV’s
power under s 25B to employ and is ultra vires and void.
45. Further whilst the opaque nature of the Proposed Service Agreement and its
interaction with the Board Constitution leaves the matter unclear there would appear to
be a real potential for the Proposed Service Agreement to place a further fetter on FRV’s
powers to determine whether a person is suitable for employment or promotion by FRV.
To the extent the Board Constitution imposes obligations on the Contractual
56 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022, [44] – [45].
57 UFU Submissions in Reply Dated 26/09/2022, [89].
58 Ibid [95].
59 Ibid [97], [100].
60 Transcript, PN252, 546.
[2022] FWC 3170
19
Registration Board which are implied into the Proposed Service Agreement, they too
would be ultra vires and void.”
[66] The Minister referred the Commission to s.25B(1) of the FRV Act which reserves the
right of basic decisions about employment to the FRV. The section provides, so far as is
relevant,
“25B
Employees of Fire Rescue Victoria
Fire Rescue Victoria may from time to time—
(a) employ any persons that it considers necessary to assist it in carrying out its functions
under this Act or any other Act; and
(b) transfer, promote, suspend or remove any employee.”
[67] The Minister’s submissions on the subject of s.25B included,
“43. FRV has general powers under ss 7(2) and 25A(1) of the FRV Act and specific
powers to enter into agreements under ss 25A(2)(a) and (b). However, each of these
powers is subject to an implied limitation, derived from numerous features of the Act,
that prevents them from being exercised in a manner that would fetter FRV’s power
under s 25B to:
(a) determine whether a person is suitable for employment by FRV;
(b) promote an employee; and suspend or remove an employee.
44. The term contained in the Proposed Service Contract, by which FRV would be
agreeing with the UFU not to employ any external professional career firefighter not
registered by the Corporate Registration Board is already an obvious fetter on FRV’s
power under s 25B to employ and is ultra vires and void.
45. Further whilst the opaque nature of the Proposed Service Agreement and its
interaction with the Board Constitution leaves the matter unclear there would appear to
be a real potential for the Proposed Service Agreement to place a further fetter on FRV’s
powers to determine whether a person is suitable for employment or promotion by FRV.
To the extent the Board Constitution imposes obligations on the Contractual
Registration Board which are implied into the Proposed Service Agreement, they too
would be ultra vires and void.”61
[68] The 2020 Agreement makes various provisions about firefighter recruitment and
employment, including the engagement of trainee firefighters, the inclusion of minimum
crewing arrangements, and specification of classification descriptors. It also prescribes certain,
but not all, training requirements. These commitments, of course, are within the context of an
61 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022,
[2022] FWC 3170
20
enterprise agreement originally made with the FRV and its employees (noting that the 2020
Agreement is in most part a transferable instrument). Being an agreement applicable to a
Victorian Government agency, the precursor even to the making the agreement by the FRV is
that the agency has been authorised to make the agreement after scrutiny of its contents within
Government. The FRV came to these commitments of its own will as a product of bargaining.
It may be presumed that the FRV was prepared to agree to these things and saw no impediment
to do so after considering its managerial discretions and legislative environment. Standing in
contrast to these matters are those potentially stemming from the Corporate Board.
[69] The governance of the Corporate Board includes the board itself, comprising a Chair
and other directors. According to the Corporate Board’s Constitution, decisions about
qualifications of firefighters are a combination of initial prescription (being things set out in the
Constitution) and determination by the Board, including for reason of the initial prescriptions
being superseded. The Corporate Board’s Constitution provides about registration,
“17.1 Qualification for Registered Victorian Professional Career Firefighters
(a) In order to be registered with the VPCFRB, professional career firefighters must be:
(i) Hold the qualifications, skills and experience listed in this clause, appropriate
for their qualification or deemed equivalent by the VPCFRB; and
(ii) Employed by Fire Rescue Victoria or another fire service as approved by the
VPCFRB.
(b) The training and qualifications framework for professional career firefighter requires
prerequisite pathways and minimum times at ranks to ensure experience is gained and
skills are developed and consolidated, so that emergencies can be mitigated safely, and
both public and firefighter safety ensured.”62 (underlining added)
[70] The Service Contract is in similar terms as well as making the following provision about
registration standards, which extend to those who may be qualified for secondment to the CFA
(noting that the reference in the passage below to the Operational Agreement is a reference to
the 2020 Agreement or its replacement),
“REGISTRATION STANDARDS
3. The qualifications, competencies and operational experience, as specified by the
Operational Agreement and the agreed training framework, are the standards required
for registration as a professional career firefighter.
4. External professional career firefighters seeking to be an officer or employee of Fire Rescue
Victoria, including for the purpose of being made available on secondment to CFA or other
agencies by agreement of the Board, must first seek registration with the Registration Board.
62 Exhibit UFU4, Attachment LC-9, DHB 83–84.
[2022] FWC 3170
21
They must have as a minimum, the qualifications, competencies and operational experience as
specified by the Operational Agreement and the agreed training framework.”63
[71] The Corporate Board’s Constitution specifies in Clause 17 that there will be six
registration categories: Firefighter (which includes Firefighter 1 to Leading Firefighter), Officer
(which includes Station Officer and Senior Station Officer), Commander, Assistant Chief Fire
Officer, Fire Service Communication Controller, and “Other Classifications”. Each registration
category specifies the criteria for registration, with me extracting only the “Firefighter”
category for the purposes of illustration,
“FIREFIGHTER: Completion of PUA20613 Certificate II in Public Safety (Firefighting
and Emergency Operations) and partial completion of PUA30613 Certificate III in
Public Safety (Firefighting and Emergency Operations) or its equivalent superseded
qualifications.
Note: On completion of recruit training recruits are promoted to the rank of Firefighter
1. Promotion to Firefighter 2 is gained after 12 months career professional service on
shift and Firefighter 3 after 24 months career professional service on shift and the
completion of continuation training at the level of Firefighter 2.”64
[72] The Corporate Board’s Constitution states about the “Other Classifications” category,
“OTHER CLASSIFICATIONS: This category covers professional career firefighters for
operational ranked classifications not listed in Categories 1 – 5 as agreed by the
VPCFRB through consultation in accordance with the Fire Rescue Victoria and United
Firefighters Union Operational Staff Agreement.”65
[73] The Corporate Board’s Constitution Clause 18 (Registration Provision) appears to
provide transitional registration arrangements for already employed firefighters, with a
reference to “Professional career firefighters (previously with MFESB and CFA) employed by
Fire Rescue Victoria”. However, the intent of the clause and its interaction with Clause 17 are
not clear. If it is intended as a transitional registration provision it highlights the possibility that
the provisions of Clause 17 may have the intention of developing greater than existing
registration requirements.
[74] Consideration of these matters leads to the conclusion that the Minister may well be
correct in the assertion that, as presently designed, the Service Contract, and behind it the
Corporate Board, will be a fetter on the FRV’s powers of determination about employment of
“any persons that it considers necessary to assist it in carrying out its functions under this Act
or any other Act”.
[75] Once implemented, the Corporate Board would be the entity that not only registers
firefighters, compiling a list of those registered and the qualifications, but actually determines
the qualifications that firefighters should hold. There appears to be no requirement that the
board should or must register all existing professional firefighters, or that it will provide
63 Exhibit UFU4, Service Contract, Schedule 4 (The Registration System), DHB 124.
64 Exhibit UFU4, Attachment LC-9, DHB 84.
65 Exhibit UFU4, Attachment LC-9, DHB 86.
[2022] FWC 3170
22
recognition of those registered or employed as professional firefighters in other Australian fire
services. There are no apparent contractual constitutional constraints on the Corporate Board
about who must be registered or not, or even that determinations must be made in such a way
as to avoid inappropriate or unlawful matters of discrimination. That is not to say that the
Corporate Board may do such things, merely that there appears to be no constraint against doing
so.
[76] When these matters are considered, the problems identified by the Minister crystallise.
[77] The Corporate Board may not immediately act in such way as to set the FRV in a
direction contrary to s.25B of the FRV Act, or even inevitably do so. Rather, the proposition is
that the Corporate Board could move to do such things with its constitution and the Service
Contract as drafted and signed by the FRV not plainly preventing such things. Although
Schedule 4 to the Service Contract refers to a condition of registration as holding “as a
minimum, the qualifications, competencies and operational experience as specified by the
[2020 Agreement] and the agreed training framework” it still potentially takes the determination
of employment away from the FRV, and even away from the 2020 Agreement.
[78] Such eventualities would plainly be determinations or decisions by the Corporate Board
and not controlled by the FRV, with it not having a majority of members of the Corporate
Board. If they came about, it would be difficult to see how their occurrence was consistent with
the FRV’s legislated entitlement/freedom to “employ any persons that it considers necessary
to assist it in carrying out its functions under this Act or any other Act”.
[79] As drafted, the Corporate Board Constitution and the Service Contract do not appear to
be consistent with s.25B and as such amount to a fettering of the FRV’s functions. It would be
inappropriate for the Commission to determine such a situation through this arbitration. It
follows from the above that the fettering objection must be upheld, with the consequence that
the Commission must also decline to provide the relief sought by the FRV.
[80] This is not to say that either the Corporate Board or the Service Contract cannot be
drafted in such a way as not to fetter the FRV’s legislative right in relation to whom it employs.
The Ministerial Consent Objection
[81] Counsel for the Minister noted that the Minister had formally indicated she believes her
consent is required under s.25A of the FRV Act for the FRV to enter into the Service Contract
and that she refuses this consent. On this basis it was submitted that the Commission should
not, pursuant to s.739, order the FRV to enter into the Service Contract as to do so would be to
require the FRV to act inconsistently with the FRV Act.66
[82] The Minister argues that relief should not be granted in any form that orders the FRV to
enter into the Service Contract since to do so would be contrary to her direction to the FRV and
thus a direction to act inconsistently with the FRV Act. The UFU argues to the contrary,
submitting that the Minister’s argument that her consent is required for entering into the Service
66 Exhibit Minister1, Outline of Submissions of Mr O’Grady (on Behalf of the Minister for Emergency Services) Dated
22/08/2022, [46], [48].
[2022] FWC 3170
23
Contract is untenable (noting that references in the below extract to the VCPFRB are references
to the Corporate Board),
“70. In its oral submission, at PN624, the Minister contends that FRV requires ministerial
consent on two bases:
a. First, the Minister submits that ministerial consent is required under
s.25A(3)(a), because the Minister asserts that by entering into the Proposed
Services Contract the FRV is entering into an agreement or arrangement for the
provision of services by FRV;
b. Second, the Minister submits that the FRV requires Ministerial consent
pursuant to s.25A(3)(b) before it ‘participated in the formation’ of a body
corporate, namely the VCPFRB.
71. Both submissions are untenable.
72. Dealing with the first, the Minister points at PN627-PN630 to the requirement under
Schedule 1, Item 5 of the Proposed Services Contract, which is a requirement that FRV
provide the VPCFRB with lists of firefighters it employs. She then submits that that is
a requirement in the Proposed Services Contract for FRV to provide services to
VPCFRB. That submission is plainly wrong.
73. In the first place, the Minister fails to have regard to the terms of s.25A(2)(b), and
whether the Proposed Services Contract can sensibly be characterised as an agreement
for the provision of services by FRV. It is submitted that on any fair reading of that
contract it cannot; its clear purpose and intent is for the VPCFRB to provide services to
FRV. It is VPCFRB that is getting paid for its services.
74. Nextly, the provision of information by a client to a service provider, in order to
facilitate the procurement of their services, is not of itself an agreement to provide
services. This is supported by the lack of consideration provided by the service provider
for those purported ‘services’. Item 5 is a classic example; in order to apply the
registration process VPCFRB necessarily needs to know who the firefighters are that
are to be assessed and registered.
75. In oral submissions at PN286, the UFU provided the Commission with the example
of an accountant, who requires certain information from a client in order to provide the
services of preparing financial accounts. A further example would be a patient/doctor
relationship where the patient provides the doctor with an X-Ray so that the doctor can
provide them with medical services. These examples demonstrate the absurdity of the
Minister’s position, which should be rejected.”67
[83] The Minister’s Consent Objection in the context of this arbitration is primarily a matter
between the Minister and an agency reporting to that Minister. The Minister’s withholding of
consent for the FRV to enter into the Service Contract with the Corporate Board is for the
reasons summarised above. However, it is not known if consent could be achieved with a
67 UFU Submissions in Reply Dated 26/09/2022.
[2022] FWC 3170
24
different set of board constitutional and contractual arrangements or what degree of change, if
any, would be sufficient to elicit the Minister’s consent. Whether or how the agency proposes
to respond to the Minister’s objections, or whether the FRV Commissioner see the Minister’s
objection in quite the same light as advanced in these proceedings may well be interesting
questions. However, this matter does not turn on those views or relationships. While it is not
necessary to determine the Consent Objection in the context of my finding that the fettering
objection is upheld, it is not inconceivable changes could be made that did not fetter the FRV
in the manner described or provoke the Minister’s public withholding of consent for the
arrangements. Whether and how consent could be provided should be matters for the FRV and
the Minister to explore in the first instance.
Service Contract Content Objection
[84] Counsel for the Minister further submitted that the Minister had raised a number of
substantive concerns regarding the Service Contract which should be given significant weight
by the Commission in determining the dispute.68 These concerns are extracted below:
“(a) Deficiencies remain in the transparency and oversight of the Corporate Board’s
functions under the Proposed Services Agreement that would not advance the purpose
or functions of the FRV Act or the government’s fire and emergency services priorities.
The Proposed Services Agreement does not make provision for regulatory oversight
adopted by registration bodies subject to Victorian legislation and therefore would not
meet public expectations.
(b) The Corporate Board will not be a public entity and therefore would not be subject
to accepted public sector requirements such as complying with the Freedom of
Information Act 1982 (Vic) and administrative law principles such as procedural
fairness and judicial review. There would be limited ability for government to oversee
the administration of the Corporate Board’s performance of its obligations under the
Services Agreement, notwithstanding that it will regulate public sector employees. The
lack of regulatory oversight and transparency in the governance and scope of the
activities to be undertaken by the Corporate Board pursuant to the Proposed Services
Agreement raise significant public interest risks.
(c) Any obligation on the Corporate Board to comply with public law principles, such
as information privacy principles, would only arise due to contractual provisions in the
Proposed Services Agreement which could be amended.
(d) The Proposed Services Agreement could impermissibly fetter FRV’s employment
powers contained in section 25B of the Act. Even if the fettering were lawful, it would
be inappropriate for a body that sits outside the public sector to maintain a Register of
FRV employees in circumstances where the Register might be used to limit the manner
in which FRV exercises its power of employment.
(e) The potential for duplication between the functions to be performed under the
Proposed Services Agreement and those to be performed by the Board established by
68 Ibid [49].
[2022] FWC 3170
25
section 149 of the FRV Act (Statutory Board) may create confusion and undermine
the legislative objectives of the Statutory Board.
(f) The costs associated with the operation of the Corporate Board under the Proposed
Services Agreement will be borne by the Victorian Government. The Proposed Services
Agreement fails to meet public expectations in ensuring transparency in meeting
financial reporting obligations designed to prevent fraud and corruption and ensure
accountability and transparency in the administration of public funds.”69
[85] Grounds (a), (b), (c) and (f) deal with matters of the Corporate Board’s governance.
Ground (d) overlaps with the Fettering Objection, and Ground (e) expresses concern about the
potential for duplication of effort with the Statutory Board.
[86] In their oral submissions, the UFU argued that the deficiencies identified by the Minister
in the Service Contract fail to have regard “to the specific provisions which are already
contained within the service contract which has been negotiated with FRV and which FRV has
proposed in order to deal with the very matters that the Minister now complains of.”70
[87] The UFU noted that the Service Contract was created at the request of the FRV with the
purpose of addressing the key risks which the FRV is required to manage pursuant to legislative
and insurance obligations.71 They stated that the contract is,
“… essentially in the same form as the FRV would use for any supplier of service,
whether it be for a short term for a long term or for a very long term. And it is designed
and presumably approved by the government for some level as being satisfactory to
satisfy the regulatory obligations on FRV.”72
[88] The Service Contract content objections were touched on briefly in the Minister’s
written submissions and less so in oral submissions. The UFU went on to note clauses within
the Service Contract which, on its submission, resolved a number of the concerns raised by the
Minister. These are summarised as follows:
Clause 7.5.1, which obliges the VPCFRB to cooperate with and assist FRV in
connection with any enquiry or investigation by an Authority resolves the ground (a)
concern regarding regulatory oversight.73
Clause 3.4, which imposes a duty to cooperate with the FRV on the VPCFRB for the purpose
of compliance with regulatory requirements or obligations, and clause 7.5.2 which obliges the
VPCFRB to cooperate with and assist FRV in connection with any requests to the FRV about
or relating to the Service Contract under the Freedom of Information Act 1982 (Vic), resolve
the ground (b) concern regarding lack of regulatory oversight and transparency.74
69 Ibid [47].
70 Transcript, PN137.
71 Transcript, PN433.
72 Transcript, PN438.
73 Ibid, [110] (a).
74 Ibid, [110] (b).
[2022] FWC 3170
26
Clause 8.1, which obliges the VPCRFM to securely maintain complete and accurates
records, clause 9, which obliges the VPCFRB to keep confidential information
confidential, and clause 10, which binds the VPCFRB to the Information Privacy
Principles, resolve the ground (c) concern regarding compliance with the
Information Privacy Principles.75
Clause 7.5.1, noted already in relation to ground (a), and clause 8.2, obliges the
VPCFRB to allow FRV and its representatives access to the VPCFRB’s premises,
facilities, systems and any information or documentation in its possession or control
which is connected to the services it provides (including any records) for the purpose
of FRV performing an audit, resolve the ground (f) concern regarding financial
reporting obligations and accountability and transparency regarding public funds.76
[89] In relation to ground (d), which overlaps with the fettering objection, the UFU reiterated
its submissions on this issue, noted at [62] – [64] above.77
[90] In relation to ground (e), which expresses concern about the potential for duplication of
effort with the Statutory Board, the UFU firstly submitted that the statutory board was not in
operation, with no evidence tendered about steps taken to operationalise the board or details of
how it will function if operationalised. Secondly, they noted that the Statutory Board as
contemplated by s.149 of the FRV Act is necessarily limited and demonstrably narrower than
the ambit of the VPCFRB. Thirdly, as no evidence had been tendered of the potential for
conflict the submissions were fundamentally hypothetical. The potential for possible future
expansion of the Statutory Board and issues which might arise as a result of this, raised in the
oral submissions for the Minister, was also rejected by the UFU as entirely speculative and
accordingly without substance.78
[91] The governance grounds relied upon by the Minister, and set out above, are no doubt
real. However, there is insufficient material before me to lead to a finding that for those reasons
alone the relief sought by the UFU could not be granted. If they are matters about which she is
concerned, and the FRV is in turn concerned, they should be capable of resolution. The fact that
the design of the Corporate Board to date has not sufficiently addressed the matters about which
the Minister expresses concern does not mean that the board’s design cannot be moved to
address the concerns. It must be said though that the public sector regularly enters into service
contracts and the governance matters she raises are not novel, likely even within FRV let alone
the wider Victorian public sector, and it would be straining credulity for it to be suggested that
the Minister’s identified concerns have not already been addressed in other template contractual
arrangements, or cannot be so.
[92] The ground dealing with duplication of function between the Corporate Board and the
Statutory Board would have some merit were it not for the fact that the Statutory Board has the
extremely limited functions of registering “officers and employees of Fire Rescue Victoria
proposed to be made available to the Country Fire Authority under a secondment agreement”
75 Ibid, [110] (c)
76 Ibid, [110] (f).
77 Ibid, [110] (d), [80]–[101]
78 Ibid, [110] (e), [102]–[109].
[2022] FWC 3170
27
and “other persons who wish to be employed by Fire Rescue Victoria in order to be made
available to the Country Fire Authority under a secondment agreement”.79 There is no evidence
before me as to the actual duplication about which the Minister is concerned, and so I do not
find the asserted duplication to be credible.
[93] While it is not necessary for me to formally determine the Service Contract Content
Objection, the material before me on the subject would incline me not to uphold it.
[94] Consideration of each of the Minister’s objections, the case put forward by the UFU and
the position expressed by the FRV leads to the following conclusions, relevant to the overall
disposition of the dispute presently before me:
When Deputy Commissioner Angwin wrote to the UFU on 18 October 2021 there
was apparent consensus between the parties about several matters.
Despite this, not all matters were agreed between the UFU and FRV which led to
the lodgement by the union of the dispute application now before me on 29 March
2022.
Conciliation after lodgement of the dispute application expanded the agreed matters
but did not entirely resolve the dispute.
Having heard the Minister’s objections to the matters before the Commission, and
for the reasons stated above, I do not uphold either the Extant Dispute or Matters
Pertaining Objections, and do not determine either the Ministerial Consent or the
Concerns Objection. However, the Fettering Objection should be upheld.
The relief sought by the Applicant is set out above, with the FRV not opposing it.
The finding that the Fettering Objection should be upheld is on the basis that the
Service Contract as drafted has the potential to conflict with the FRV’s legislated
function (see FRV Act s.25B (1)) since the Corporate Board may potentially set the
qualifications of the firefighters it registers and thereby the firefighters the FRV may
engage. However, that is not to say that the Service Contract is incapable of being
drafted in such a way that the conflict is removed.
The significance of the withholding of Ministerial consent for the FRV to enter into
the Service Contract is not a matter properly to be determined through this decision
and nor is it necessary to do so.
[95] It will be apparent from the above considerations that it is not inconceivable that a
firefighters’ registration board can be established at arms-length to the FRV and UFU, but that
it may not be done in the way presently envisaged.
[96] Deputy Commissioner Angwin’s October 2021 commitments, freely and openly given,
should be regarded, including by the Minister, as a binding set of obligations on the FRV. To
79 FRV Act, s.148.
[2022] FWC 3170
28
do otherwise would be a repudiation both by the FRV and its responsible Minister of the
commitments given in the 2020 Agreement: that the FRV endorses the establishment of a
firefighters’ registration board and that disputes about the employment relationship and the
relationship between the FRV and the UFU may be resolved through the process as defined in
the agreement, including through reference of matters to the Commission for conciliation and
arbitration. The commitments given by Deputy Commissioner Angwin are not in conflict with
the FRV Act’s s25B which reserves to the FRV decisions to “employ any persons that it
considers necessary to assist it in carrying out its functions under this Act or any other Act”.
[97] Taking those commitments forward and implementing them in such a way as to not
fetter the operation of the FRV’s legislative remit is not impossible, just a task that should be
free from overreach by either the UFU, or the FRV or, for that matter, it’s Minister.
[98] Since the Fettering Objection has been upheld it is not necessary to conclude the
questions posed by the UFU for determination by the Commission. If such were necessary, I
would answer them through the prism of the commitments given by DC Angwin on behalf of
the FRV; principally that the registration board should be an “independent board operating
independently of both FRV and UFU”, giving “effect to issuing the qualifications and
registering personnel in accordance with the qualifications prescribed”. Each may be answered
within that context in the affirmative.
[99] The commitments given by the FRV plainly place the registration board, however
established and constituted, outside of the entity which is Fire Rescue Victoria. Senior Counsel
for the FRV submitted that the relief sought by the UFU involved matters permitted and that
the FRV did not oppose either affirmative answers to the questions or for the Order as amended
to be granted.80 Those matters in turn lead me to accept that an order of some type may be
granted in the event the question of fettering is overcome.
[100] Even so, the matter of an order and its content should not be developed further at this
time. Mr Borenstein advocated that an order of the type he put forward could be made, relying
on reasoning of the Full Bench Metropolitan Fire and Emergency Services Board v United
Firefighters' Union of Australia (Victorian Branch)81 and the High Court in Project Blue Sky
Inc v Australian Broadcasting Authority.82 Mr O’Grady advocated the contrary, submitting that
“based upon the MFB decision, that a third party, i.e., the company here in question, can't be
the subject of a dispute resolution procedure, or can't be the subject of an order”.83
[101] The matter of any order and its jurisdictional base will likely turn on what is sought after
the appropriate changes of structure, form, and governance have been considered.
[102] In conclusion, and since the Minister’s Fettering Objection is upheld, the application
before the Commission is dismissed.
80 Transcript, PN516.
81 [2012] FWAFB 9555, [20] – 25], [43] – [47].
82 [1998] HCA 28, 194 CLR 355.
83 Transcript, PN590 – 593.
[2022] FWC 3170
29
COMMISSIONER
Appearances:
Mr H Borenstein KC for the Applicant
Mr M Harding SC for the Respondent
Mr C O’Grady KC intervening for the Minister
Hearing details:
2022.
Melbourne:
29 and 30 August.
Printed by authority of the Commonwealth Government Printer
PR748454
OF THE FAIR WORK 0 AUSTRALIA, MMISSION THE SEAL
