1
Fair Work Act 2009
s.234 - Application for an intractable bargaining declaration
United Firefighters’ Union of Australia
v
Fire Rescue Victoria T/A FRV
(B2023/771)
DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT BELL
COMMISSIONER ALLISON
MELBOURNE, 5 FEBRUARY 2024
Intractable bargaining determination – preliminary hearing about ‘agreed’ matters for s 274
of the Fair Work Act 2009 (Cth).
[1] The applicant, the United Firefighters’ Union of Australia (UFU), and the respondent,
Fire Rescue Victoria (FRV) are covered by the Fire Rescue Victoria Operational Employees
Interim Enterprise Agreement 2020 (2020 Agreement). They have been bargaining informally
and formally since about July 2020 for the purpose of making a proposed enterprise agreement
to replace the 2020 Agreement.
[2] On 4 October 2023, a Full Bench of the Fair Work Commission (Commission) made an
intractable bargaining declaration,1 pursuant to s 234 of the Fair Work Act 2009 (Cth) (FW
Act). The declaration was made upon an application by the UFU, which was supported by FRV.
The Victorian Minister for Emergency Services, the Hon Jaclyn Symes MLC (Minister), being
the Minister with statutory responsibility for FRV, also supported the making of the declaration.
[3] The order2 giving effect to the declaration further specified a post-declaration
negotiating period that started on 4 October 2023 and ended on 18 October 2023. The matter
remained unresolved at the end of that period and, as no order for a further post-declaration
negotiating period was made,3 it now falls to the Commission to make an intractable bargaining
workplace determination “as quickly as possible” under s 269 of the FW Act.
[4] An intractable bargaining workplace determination must include “agreed terms”:
s 270(2) of the FW Act. This decision addresses a preliminary issue in dispute, which is what
terms – if any – of the proposed enterprise agreement are “agreed terms” for the purposes of
ss 270(2) and 274(3) of the FW Act.
[5] In summary, the UFU’s position was that all matters between the UFU and FRV are
agreed terms, other than terms involving increases to wages and increases to allowances. By
contrast, FRV (and the Minister) stated that there are no agreed terms within the meaning of s
274 of the FW Act. While maintaining the position that there are no agreed terms, FRV and the
[2024] FWCFB 43
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 43
2
Minister identified a confined list of ten specific matters (including wages and allowances) that
they stated would require substantive determination, with the balance of matters not being
contested nor likely to be the subject of substantive submission as to their inclusion in an
intractable bargaining workplace determination. With the exception of the ten specific matters,
the uncontested matters that have been identified are included in a version of a proposed
enterprise agreement prepared on around 26 July 20234 – that version is variously described by
the parties as ‘Version 14,’ a term we adopt for convenience. It is not necessary for this decision
to describe the terms in Version 14 in any detail.
[6] The UFU and FRV each filed written submissions and witness statements.
[7] For its witness evidence, the UFU relied upon two statements of Laura Campanaro,
Industrial Officer Coordinator for the UFU, and a statement by James Kefalas, the officers'
representative on the Branch Committee of Management of the Victorian Branch of the UFU.
Reflecting the titles to those statements, we refer to them as the ‘Third Campanaro statement’
(dated 17 November 2023), the ‘Fourth Campanaro statement’ (dated 11 December 2023)5 and
the ‘Second Kefalas Statement’ (dated 17 November 2023).6 Ms Campanaro was cross-
examined; Mr Kefalas was not required for cross-examination.
[8] For its witness evidence, FRV called Jo Crabtree, Executive Director, People and
Culture, FRV. Reflecting the titles to her statements, we refer to them as the ‘First Crabtree
Statement’ (dated 5 September 2023), the ‘Second Crabtree Statement’ (dated 17 November
2023), and the ‘Third Crabtree Statement’ (dated 11 December 2023). The First Crabtree
Statement was made in respect of the application for an intractable bargaining workplace
declaration, although it was relied upon by FRV in the preliminary hearing before us.
Ms Crabtree was cross-examined.
[9] The Commission exercised its discretion to grant leave to the Minster to intervene to
make written and oral submissions. The grant of leave did not extend to the Minister adducing
evidence in respect of the determination of the preliminary issue in dispute and the discretion
was exercised subject to an overriding procedural consideration that the time allocation between
FRV and the Minister did not unduly disadvantage the UFU. No disadvantage was contended,
nor apparent, during the preliminary hearing.
[10] The Minister relied upon an amended position document, an amended outline of
submissions, and amended reply submissions, each dated 19 December 2023. The amendments
to each of these documents were limited to the incorporation of cross-references to referred
material in the Commission’s Court Book.
[11] The Court Book is comprised of four volumes. Volume A contains the material relied
upon by the UFU in respect of the preliminary issue in dispute. Volume B comprises FRV’s
material and the Minister’s submissions are contained in Volume C. Volume D is comprised of
court documents and other materials filed before the earlier Full Bench in this matter, that the
parties indicated a desire to rely on in the preliminary hearing. Court Book references in this
decision are therefore preceded by reference to the relevant volume.
[2024] FWCFB 43
3
Statutory framework
[12] Part 2-4 of the FW Act is titled “Enterprise agreements” and addresses a wide range of
matters dealing with that subject. There are eleven Divisions in Part 2-4 and many subdivisions.
While it is not necessary to summarise them, Division 8 of Part 2-4 is titled “FWC’s general
role in facilitating bargaining.” Up until 6 June 2023, Subdivision B of Division 8 was titled
“Serious breach declarations.”
[13] As noted in the earlier Full Bench decision in this matter,7 the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) repealed the former “serious
breach declaration” provisions of the FW Act, replaced them with their current form, and
retitled the subdivision to “Intractable bargaining declarations.”
[14] Section 234 of the FW Act (including the legislative note) is now as follows:
“Subdivision B—Intractable bargaining declarations
234 Applications for intractable bargaining declarations
(1) A bargaining representative for a proposed enterprise agreement, other than a
greenfields agreement, may apply to the FWC for a declaration (an intractable
bargaining declaration) under section 235 in relation to the agreement.
Note: The consequence of an intractable bargaining declaration being made in relation to the
agreement is that the FWC may, in certain circumstances, make an intractable bargaining
workplace determination under section 269 in relation to the agreement.
(2) An application for an intractable bargaining declaration must not be made in relation
to a proposed multi-enterprise agreement unless a supported bargaining authorisation or
single interest employer authorisation is in operation in relation to the agreement.”
[15] Section 235 sets out when an intractable bargaining declaration can be made and s 235A
provides for any post-declaration negotiating period. It is not necessary to set those sections
out, save to note that the Commission must be satisfied (which has been the case) of the
following matters specified in s 235(2):
“(a) the FWC has dealt with the dispute about the agreement under section 240 and the
applicant participated in the FWC’s processes to deal with the dispute; and
(b) there is no reasonable prospect of agreement being reached if the FWC does not
make the declaration; and
(c) it is reasonable in all the circumstances to make the declaration, taking into account
the views of all the bargaining representatives for the agreement.”
[16] As the legislative note to s 234 indicates, a necessary step making an intractable
bargaining workplace determination is that an intractable bargaining workplace declaration is
first made.
[2024] FWCFB 43
4
[17] The provisions for making intractable bargaining workplace determinations are
contained in Part 2-5 of the FW Act. Part 2-5 is comprised of six Divisions numbered 1 – 7.8
Division 3 provides for industrial action related workplace determinations.
[18] Prior to 6 June 2023, Division 4 provided for bargaining related workplace
determinations. The division was amended by the SJBP Act to its current form, and now
provides for intractable bargaining workplace determinations. By s 269, an intractable
bargaining workplace determination cannot be made prior to an intractable bargaining
workplace declaration having been made and the post-declaration negotiating period (if any)
having passed.
[19] Section 270 provides for the terms that must be included in an intractable bargaining
workplace determination, which include the “core terms” set out in s 272, the “mandatory
terms” set out in s 273 and the “agreed terms” provided for by s 274. Division 3 of Part 2-5
provides a similar structure for the terms of industrial action related workplace determinations.
[20] Section 274 is as follows:
“274 Agreed terms for workplace determinations
Agreed term for an industrial action related workplace determination
(2) An agreed term for an industrial action related workplace determination is a term
that the bargaining representatives for the proposed enterprise agreement concerned
had, at the end of the post-industrial action negotiating period, agreed should be
included in the agreement.
Note: The determination must include an agreed term (see subsection 267(2)).
Agreed term for an intractable bargaining workplace determination
(3) An agreed term for an intractable bargaining workplace determination is a term that
the bargaining representatives for the proposed enterprise agreement concerned had, at
whichever of the following times applies, agreed should be included in the agreement:
(a) if there is a post-declaration negotiating period for the intractable bargaining
declaration to which the determination relates—at the end of the post-declaration
negotiating period;
(b) otherwise—at the time the intractable bargaining declaration was made.
Note: The determination must include an agreed term (see subsection 270(2)).”
[21] Section 274(1) was repealed by the SJBP Act. Prior to its repeal, the subsection, which
is set out below, defined “agreed term” in materially the same way as s 274(3):
“Agreed term for a low-paid workplace determination
[2024] FWCFB 43
5
(1) An agreed term for a low-paid workplace determination is a term that the application
for the determination specifies as a term that the bargaining representatives concerned
had, at the time of the application, agreed should be included in the proposed multi-
enterprise agreement concerned.
Note: The determination must include an agreed term (see subsection 264(2)).”
Factual background and findings
[22] The firefighting services in Victoria have a long and established history. Until 2020, the
two primary firefighting and rescue services were the Metropolitan Fire and Emergency
Services Board (MFB) and the Country Fire Authority (CFA).
[23] Prior to 2020, the enterprise agreements for operational staff were the Metropolitan Fire
and Emergency Services Board, United Firefighters Union of Australia, Operational Staff
Agreement 2016 (MFB Agreement) and the Country Fire Authority/United Firefighters’ Union
of Australia Operational Staff Enterprise Agreement 2010 (CFA Agreement). The nominal
expiry date of the MFB Agreement was 1 July 2019 and for the CFA Agreement it was 30
September 2013.
[24] Prior to 2020, the Victorian Government undertook a number of reforms of fire services
in Victoria, which ultimately led to the establishment of FRV among other changes.
[25] On 20 February 2020, in anticipation of the establishment of FRV, the UFU and the then
Minister for Police and Emergency Services for Victoria signed a document titled “Heads of
Agreement.”9
[26] The purpose of the Heads of Agreement was, broadly, to provide for a range of industrial
measures and processes for the implementation of the Victorian Government’s fire services
reforms and the establishment of FRV. By way of example, the matters it provided for included:
• Commitment by the parties to the Heads of Agreement for making the “proposed
FRV Enterprise Agreement,” as well as assurances that existing terms and
conditions would not be diminished.
• A proposed 2.5% pay increase for staff covered by the MFB Agreement and the
CFA Agreement.
• An acknowledgement that the Heads of Agreement was consistent with the
Victorian Government’s “Wages Policy”.
• A commitment by the Minister “as a show of good faith that she will instruct the
MFB and CFA to apply an interim adjustment to the wages and allowances”
applicable under the then-relevant enterprise agreements.
• Commitment to enter into a “Common Law Deed of Agreement to be settled by
the UFU, and a Transfer of Business instrument pursuant to the [FW Act], to
provide an appropriate agreed legal basis and certainty for UFU members in
relation to these commitments.”
[2024] FWCFB 43
6
[27] While we understand that the UFU and the relevant Minister entered into the “Common
Law Deed of Agreement” contemplated by the Heads of Agreement, it was not in evidence and
there was no suggestion it had any ongoing operational relevance.10
[28] FRV was established under Victorian law by the Fire Rescue Victoria Act 1958 (Vic)
(FRV Act). FRV commenced on 1 July 2020, following the assumption of all the functions of
the MFB and some of the functions of the CFA.11 FRV’s core functions are firefighting and
rescue throughout the state of Victoria.
[29] From 26 August 2020, following an order by Deputy President Gostencnik,12 the 2020
Agreement has applied to employees of FRV covered by that agreement.
[30] The UFU is a registered organisation of employees, whose members comprise of about
98% of FRV’s operational workforce.13 The UFU is, and remains, a bargaining representative
of nearly all relevant FRV employees in relation to bargaining between FRV and the UFU.
[31] The reference in the Heads of Agreement to the “Wages Policy” is evidently a reference
to the Victorian Government’s policy at the time titled “Wages policy and the Enterprise
Bargaining Framework”14 (2019 Wages Policy), as issued by the Treasurer of Victoria and
Minister for Industrial Relations, the Hon Tim Pallas MP. By a covering letter from the
Treasurer for that document, the 2019 Wages Policy applied from 17 April 2019 and it revoked
and replaced the previous wages policy and guidance material. The 2019 Wages Policy applied
to Victorian Government agencies and bodies.
[32] The 2019 Wages Policy stated that the primary pathway for enterprise agreement-
making under the policy had three “pillars”:
• “Pillar 1” was titled “Wages” and, in summary, it stated that increases in wages
and conditions will be capped at 2.0 percent per annum over the life of the
agreement.
• “Pillar 2” was titled “Best Practice Employment Commitment” and was aimed at
implementing various government priorities operationally or without significant
cost.
• “Pillar 3” was titled “Additional strategic changes.” The requirements of Pillar 3
stated that additional changes to allowances and other conditions (not general
wages) will “only” be allowed if the Government agrees that the changes will
address “key operational or strategic priorities for the agency, and/or one or more
of the Public Sector Priorities.” Examples given of possible Pillar 3 priorities
included: increasing penalty rates for weekends or night to address high instances
of unscheduled absences at those work times; removing or reducing restrictions
which impede the efficient allocation of resources; and targeted wage increases to
a specific and identifiable cohort of the workforce who have historically been
underpaid because of gender.
[2024] FWCFB 43
7
[33] Under the heading “Enterprise Bargaining Framework”15 in the 2019 Wages Policy was
a description of the “Government’s approval arrangements which public sector agencies must
meet before commencing bargaining, during bargaining and before seeking approval of final
enterprise agreements” (our emphasis).
[34] That same section of the 2019 Wages Policy distinguished between “Major and Non-
major Agreements.” Major Agreements included any enterprise agreement with a large public
sector workforce, with a salary base in excess of $1billion, or with significant industrial or
financial risk, and/or or strategic or operational importance to the Government. The 2019
Wages Policy specifically stated that enterprise agreements for “firefighters” were Major
Agreements.16
[35] The 2019 Wages Policy then listed some specific obligations on government agencies
under the headings “Authority to commence bargaining,” “During bargaining” and “Approval
requirements.”
[36] Obtaining authority to commence bargaining was, as would be expected, required to be
sought before bargaining commenced.
[37] For the stage “During bargaining,” the 2019 Wages Policy requirements included:17
“All offers should be made on an in-principle basis, with the public sector agency
communicating that the offer is subject to government approval and may be subject to
change to ensure compliance with Wages Policy, the Industrial Relations Policy, the
Fair Work Act or other relevant legislation.”
[38] Under the heading “Approval requirements,” the 2019 Wages Policy requirements
included:
“All proposed enterprise agreements require the approval of Government prior to the
commencement of any of the formal approval requirements outlined in the Fair Work
Act.”
[39] And, for Major Agreements:
“The process for seeking Government approval of final agreements under the
Framework differs for Major Agreements and Non-major Agreements. Approval of
Major Agreements at a high level of Government is required.”
[40] We note that a replacement wages policy took effect from 1 January 2022 (2022 Wages
Policy).18 The 2022 Wages Policy substantively replicated the requirements stated above,
although one significant change was that wages under Pillar 1 were now to be capped at 1.5
percent.
[41] It is uncontroversial that “informal” bargaining commenced between FRV and the UFU
in about July 2020. Ms Campanaro’s evidence was that between July 2020 and 26 April 2022,
there were approximately 32 meetings involving discussions for a new enterprise agreement.19
[2024] FWCFB 43
8
[42] The (slow) pace of progress during discussions throughout this informal phase was
evidently a matter of frustration to the UFU. On 1 November 2021, the UFU made a ‘Form
F11’ application under s 240 of the FW Act seeking the assistance of the Commission to deal
with a bargaining dispute.20 The form was signed by the UFU’s external solicitor.
[43] Among other matters, the UFU stated the following in its Form F11 application:
“9. On 30 November 2020, the UFU presented to the FRV its log of claims in relation
to a proposed Operational Staff Agreement.
…
11. On 8 December 2020, FRV responded to the UFU’s claims.
12. On 14 January 2021, the UFU met with some members of the FRV Executive
Leadership Team to discuss the proposed Operational Staff Agreement.
13. On 29 July 2021, FRV informed the UFU that to bargain under the applicable wages
policy, FRV needed to make a request to the Victorian Government to commence
bargaining by 1 August 2021. FRV informed the UFU that it would make its submission
with respect to a new enterprise agreement within this timeframe to ensure that when
the parties were ready to commence negotiations for the operations staff agreement, they
would be in a position to do so having already obtained Government approval.
14. To date, FRV have failed to:
a. provide costings of the monetary value for efficiencies arising from the UFU
Efficiency Clauses; and/or
b. formalise the bargaining process by taking the necessary action to obtain
Victorian Government approval.”
[44] The main matters in dispute were said to be FRV’s failure to provide costings or to
formalise the bargaining process by obtaining Victorian Government approval (i.e. as extracted
above).21
[45] On 26 April 2022, FRV issued a ‘Notice of Representational Rights’22 to relevant
employees for the purposes of s 173 of the FW Act, thus commencing what the parties have
respectively described as “formal” bargaining.23 FRV was given permission from the
Government to continue to apply the 2019 Wages Policy despite the commencement of the
2022 Wages Policy, as noted at [40] above.24 Ms Campanaro’s evidence is that there were 44
bargaining meetings held in the 12 months from April 2022.25
[46] Ms Campanaro refers to a “Bargaining Charter” drafted by FRV, that bargaining
representatives were requested to review and sign.26 The copy of the document in evidence27 is
titled “Agreed Charter” (Charter) and, while unsigned, that version was dated 3 May 2022.
[47] The Charter contains a suggested agenda for “Meeting One” on 26 April 2022.28 One
item on the agenda was “FRV to provide explanation of current status of current Enterprise
Agreement, Government Wages Policy, FRV objectives and broad concepts.”
[2024] FWCFB 43
9
[48] Ms Campanaro’s evidence about the meeting on 26 April 2022 was that “FRV
mentioned government wages policy at that meeting in the context of monies.”29
[49] Ms Campanaro’s qualification to the effect that wages policy discussions only
concerned monies or quantum is illustrative of a key difference between the parties regarding
negotiations.
[50] For example, at least for what appears to be the period up until August 2022 (the exact
timeframe is not clear from Ms Campanaro’s evidence), she states:
“45. From the time of the FRV’s first response document, the UFU and FRV were
negotiating and agreeing clauses.
46. There was no qualification or reservation expressed by the FRV during these
negotiations which suggested the agreements reached between the parties on non
quantum clauses were subject to government approval.
47. The only matter during the bargaining process that was acknowledged to be agreed
in principle between the UFU and FRV and subject only to Government funding (other
than quantum) was the matter of increased safe staffing levels.”
[51] On 15 August 2022, the UFU filed an application with the Commission seeking payment
of an “efficiencies allowance” (with case number C2022/5683), which Ms Campanaro
described as the “UFU’s Efficiencies Application.”30 Ms Campanaro says of the Efficiencies
Application:
“59. FRV’s response in bargaining changed following the UFU’s Efficiencies
Application. For the first time, FRV used the language of agreement in-principle and
the need for overall agreement on a package.”
[52] By way of example, Ms Campanaro referred to the FRV’s bargaining document31
provided by FRV to the UFU following the UFU’s Efficiencies Application. In the opening
paragraphs of that document, FRV stated (original bold, underlining added):
“Without Prejudice – 16 August 2022
FRV Response to UFU Log V10) received by FRV 11 August 2022.
The following provides FRV’s response to the above Log on a without prejudice basis,
noting that a range of substantive matters now await instruction to FRV by the State
Government. FRV has appraised the Government of the UFU’s Log.
The clause numbers referenced below are the clause or subclause numbers as set out in
the UFU Log.
All clauses as set out in the UFU Log, unless otherwise commented upon below, are
agreed in principle by FRV, subject to final agreement on an overall package of
provisions for the proposed EA.”
[2024] FWCFB 43
10
[53] FRV’s response to the UFU’s log then set out some specific comment on particular
issues or clauses. For example, in relation to clause 55 of the (then) proposed enterprise
agreement, FRV wrote: “55 Firefighters Registration Board - FRV’s response is pending the
outcome of proceedings in the FWC and instruction from Government.” The document listed a
number of other specific items concerning wages or allowances, variously stated to be awaiting
“instruction from Government.”32
[54] We note that the parties are in disagreement as to the significance of the above
exchanges, which is a matter we will return to. In summary, however, Ms Campanaro states
that other than the “uniquely” separate issue of the Firefighters Registration Board, “all
government references to instruction related to wages and allowance increases. That is, the
government attached no qualifications to non-wages and allowances clauses.”33
[55] Ms Campanaro made a more general observation of bargaining, that the UFU said was
unchallenged, which was:34
“63. On occasion Mr Parkinson said of some matters that they were subject to
Government approval or a package. Whenever he did one of the UFU representatives
would ask in effect if the matter was agreed or not. Every time he replied that it was
agreed.”
[56] Ms Campanaro’s evidence describes the course of bargaining with FRV since late 2022,
where she states that “FRV and UFU have substantially narrowed the outstanding matters in
bargaining.”35 Ms Campanaro then described (and there was no dispute) numerous bargaining
meetings, including with the assistance of Commissioner Wilson of the Fair Work
Commission.36
[57] On 4 November 2022, FRV filed with the Commission a Form F11 application for the
Commission to deal with a bargaining dispute in which it stated, inter alia, that it had attended
bargaining meetings with UFU and nominated employee representatives in good faith, at which
a “range of concessions agreed in-principle (subject to reaching an overall agreement).”37
Further, it was noted that at the most recent bargaining meeting on 11 October 2022, it was
agreed that the UFU would provide FRV with an updated draft enterprise agreement reflecting
the amendments agreed in principle.
[58] We note that by late November 2022, ‘Version 12’ of the proposed enterprise agreement
had been circulated between the UFU and FRV.38
[59] On 3 February 2023, Commissioner Wilson issued a “Statement” to the UFU, FRV and
Industrial Relations Victoria.39 The statement was expressed to be “issued for the purposes of
conciliation and is without prejudice to the rights of all concerned.” After a brief introductory
overview, Commissioner Wilson stated:
“[4] Bargaining between the FRV and the UFU and other bargaining representatives has
progressed between the parties with substantial goodwill, to the point where at the time
the matter was referred to me to be dealt with the principal parties, the FRV and UFU,
had reached agreement on all but 10 issues, as follows: …”
[2024] FWCFB 43
11
[60] The 10 outstanding issues were a mix of (predominantly) wages/allowances and other
non-wage issues. Additionally, Commissioner Wilson further summarised aspects of one
particular issue – the “Efficiency Allowances matter” – and made various observations as to
the state of bargaining, including the impact of the Victorian Government’s wages policy and
the changes to that policy that were pending at the time. The Commissioner’s conclusionary
paragraphs in the Statement were as follows:
“[13] The nature of these proceedings, though, is such that an early resolution to
bargaining will require a firm monetary offer to be put by the FRV to the UFU in the
near future. Of course, such can only be done in the event the FRV is authorised by the
Victorian Government to do so.
[14] As a result, I consider to be incumbent on the FRV, and through it the Victorian
Government, to put forward a firm wages proposal to the UFU and other employee
bargaining representatives for their consideration of the earliest opportunity and,
preferably, one that is capable of encompassing the matters that are within the scope of
the Efficiencies Allowance claim. That is not to suggest there should be an uncritical
adoption of the union’s position in respect of either its bargaining claim or the
Efficiencies Allowance claim. However, I do suggest that such proposal as is put
forward engages with and endeavours to address both matters.
[15] I note the next conference in relation to the FRV’s bargaining dispute application
is scheduled before me on Friday 24 February 2023 at 2 PM.
[16] I consider it desirable that before that date and time the parties endeavour to resolve
to finality all of the non-wages matters that have been under discussion in the
conciliation conferences to date. In particular I request that they meet on that subject
before the next conference, discussing all remaining non-wages matters.
[17] I also encourage the FRV and those that it is required to consult with in order to
form its instructions to have a firm wages proposal to provide to the UFU and the
Commission on or before the date of the next conciliation conference.”
[61] Ms Campanaro’s evidence is that UFU and FRV representatives met a further 12 times
between 3 February and 26 April 2023.40
[62] On 7 March 2023, the UFU wrote to FRV primarily in connection with the UFU
Efficiencies Application. The UFU identified a “development that has undermined the prospect
of ongoing co-operative industrial relations between the UFU and FRV.”41 While that
correspondence was primarily directed to the UFU’s Efficiencies Application, it sought
clarification on matters relating to bargaining. Specifically (among other matters) the UFU:
• Referred to a proposal it made in about 28 February 2023 to vary the 2020
Agreement to insert a “Productivity Clause” that the UFU said would “reflect that
which was agreed in bargaining over a year ago – if the matter was not able to be
progressed in bargaining.” In summary, the proposed Productivity Clause would
establish a mechanism under which payments for various “efficiency” matters
[2024] FWCFB 43
12
could be resolved by arbitration before the Commission if agreement could not be
reached in relation to such matters.
• Observed that the Productivity Clause “is one of many clauses that the parties have
treated as settled,” being a reference to settled in bargaining between the parties.
• Noted the Minister’s intervention in the UFU’s Efficiencies Application. While the
UFU further noted that the Minister did not consent to the UFU’s proposed
variation, the Minister had not “purport[ed] to formally direct the FRV in respect
of its approach to the proposed variation” (and gave an example from a different
dispute proceeding where the Minister had formally directed FRV pursuant to the
FRV Act.)
[63] The UFU stated that no reasons were given for the Minister’s position, and it expressed
its concerns as follows:
“In those circumstances, the Minister’s response potentially calls into question the
entirety of the negotiations that have taken place in respect of the replacement agreement
(which is now up to version 12, with few or no matters left in dispute other than the
quantum of the wage increases).”
[64] The UFU then sought reply correspondence from FRV as to its position on the UFU’s
proposed variation application, as well as the date upon which FRV would make an offer on
wages.
[65] On 10 March 2023, FRV wrote to the UFU with a monetary offer it said it was
“authorised” to make in accordance with the 2019 Wages Policy.42 The offer was a three-year
agreement, with increases of 2 percent effective from the commencement of the agreement and
a one-off sign on payment of $1,500. The letter stated that there was no component for “Pillar
3” wages or allowances “due to the uncertainty regarding the efficiency allowance matter
currently before the Fair Work Commission.” The letter concluded that “Government” was, at
the time, reviewing the wages policy and stated, “we hope” to be in a position to provide a
revised offer under the new wages policy “in the near future.”
[66] The UFU responded43 on the same day and challenged the proposition that any “Pillar
3” component could not be included in bargaining and further queried whether FRV’s offer was
genuine or if it was “designed only to avoid further criticism of FRV’s previous “inertia” in
bargaining.”
[67] On 14 March 2023,44 FRV’s response to the UFU’s letter of 10 March 2023 included
the following:
“On 29 November 2022, FRV provided a without prejudice response to the UFU’s
revised log V12 in this matter. That response confirmed:
• all references to quantum for Wages and Allowances are subject to instruction and
approval from Government having regard to Government Wages Policy and the
treatment of efficiencies; and
[2024] FWCFB 43
13
• all clauses as set out in the UFU revised log V12 (unless they were otherwise
commented on) were agreed in principle by FRV, subject to final agreement on an
overall package of provisions for the proposed enterprise agreement and subject to
the efficiencies allowance dispute proceedings in C2022/5683.
FRV has maintained this position throughout bargaining and continues to maintain this
position.”45
And:
“On 3 March 2023, FRV sought Government authorisation to make an alternate wages
proposal which included a Pillar 3 element, contrary to the instruction from Government
set out above. On 8 March 2023, Government reaffirmed its instruction as set out above,
confirming that FRV had no authorisation to put forward FRV’s alternate wages
proposal.
In these circumstances, FRV will not make an offer which includes the Pillar 3
efficiencies because it does not have Government authority to do so or Government
funding for those items.
FRV’s position regarding the inclusion of the Pillar 3 efficiency items has changed as a
result of Government’s instruction set out above. However, it should be noted that
throughout bargaining, FRV has consistently maintained the position that wages and
allowances are subject to Government Wages Policy and approval.”
[68] On 15 March 2023, the UFU replied46 to FRV’s monetary offer made on 10 March 2023.
The UFU’s letter stated that the “UFU accepts your offer of a 2% base wage increase plus a
sign-on bonus of $1500, subject to the conditions set out in this letter.” The “conditions”
attached to the purported acceptance of the FRV’s offer included a “cost-of-living adjustment”
that, in substance, pegged wage increases to any consumer price index increases above 2
percent, capped at 5 percent per annum. Ms Campanaro’s evidence is that FRV responded to
this letter from the UFU at a conference before the Commission on 24 March 2023 and rejected
the UFU’s position.47
[69] Under correspondence dated 20 March 2023, the UFU provided ‘version 13’ of the
proposed enterprise agreement to FRV. In the covering letter,48 the UFU stated that (among
other matters):
“277 out of 281 clauses and all schedules have been agreed between UFU and FRV,
with many clauses already implemented. The agreed clauses are highlighted in green in
the enclosed Version 13.”
[70] On 27 March 2023, the UFU wrote to FRV setting out the UFU’s evident frustration
with what it perceived to be FRV’s and the Government’s position regarding compensation for
the “efficiencies” realised as a result of the integration of the MFB and CFA.49
[2024] FWCFB 43
14
“For three years, the UFU has facilitated FRV’s harmonisation and progression of
changes to key entitlements including Relocation Assistance and Special Rosters, as
well as other items such as introducing the IFP program, harmonising appliances and
harmonising consultation. The UFU’s participation in these processes was on the basis
that operational members would be paid from the Efficiencies realised by such changes.
The FRV has previously confirmed that the processes of harmonisation and achievement
of efficiencies could not have been achieved without the participation and co-operation
of the UFU. It does not appear in issue that these efficiencies have led to very significant
savings for the FRV to date, as the Table 3 total confirms.
However, the position of the Government and the FRV is to take the full benefit of the
UFU’s participation, but to refuse to recognise it in bargaining because those
Efficiencies have already been realised (and so will not lead to any spending changes
in the new Agreement).
The position of the FRV in this matter is untenable. To highlight how industrially
unsound its position is, it is apparent that, if the UFU had sought to prevent the processes
of harmonisation and merger and instead insisted on the maintenance of its strict legal
rights under the Interim Agreement, it would be in a far better position in bargaining
today. That is because the Government and FRV would recognise any efficiencies to be
achieved under the new Agreement (but not prior) under Pillar 3.
The FRV’s untenable stance on Efficiencies has now placed the UFU in an invidious
position where, in order to achieve what it was promised [the UFU referred here to its
correspondence of 7 March 2023] it is in it best interests to immediately unwind the
work from the last three years to put its members in the place where they should be in
bargaining.”
[71] On 29 March 2023, FRV wrote to the UFU setting out FRV’s position, including the
following:50
“FRV’s position post the recent Fair Work Commission (FWC) conciliation conference
and subsequent conversations between UFU and FRV is:
…
• Government instruction is that the efficiencies referred to in Table 3, cannot be
relied on by FRV under Pillar 3 of the 2019 Wages Policy as it is Government’s
view that they do not represent ‘offsets’ (i.e. current expenditure).
• As of 24 February 2023, FRV has been under Government direction not to make
a wages offer that includes any additional payment under Pillar 3 of the 2019
Wages Policy. Therefore, FRV’s ability to finalise bargaining and make a wages
offer with the inclusion of these efficiencies is not possible.
• As such, FRV understands that where the implementation of these efficiencies
is no longer agreed, any such savings would no longer be available to flow to
employees.
[2024] FWCFB 43
15
FRV confirms it will continue to bargain in respect of the efficiencies identified in the
Efficiencies Estimates document. Noting, any wages offer is subject to government
approval. Additionally, FRV is advised by Government that it is currently reviewing its
wages policy. FRV hopes to be in a position to provide an updated wage proposal under
a new wages policy in the near future.”
[72] Ms Campanaro’s evidence then describes various other events, prior to a further round
of conferences involving the assistance of Commissioner Wilson. For example, the UFU relies
upon a video message issued to FRV staff by the Fire Rescue Commissioner on 29 March 2023,
where he states (among other matters) “significant progress has been made with these
negotiations, for the Operational Agreement for example all matters have been agreed other
than the Firefighters Registration Board clause, the funding to increase minimum staffing
requirements, and Annual Leave for Fire Safety Officers and the Incident Management Support
clause for those Fire Safety Officers. The quantum of wages and allowances increases of course
is yet to be agreed as well.”51
[73] On 4 April 2023, the Treasurer of Victoria and Minister for Industrial Relations issued
a press release52 announcing the Victorian Government’s new wages policy. Despite the press
release being issued that day, the actual wages policy referred to was not.53 The press release
stated there would be an increase in the “wages component” of the wages policy from 1.5
percent per annum to 3.0 percent, as well as there being an ability to obtain a “lump-sum sign
on bonus equal to up to 0.5 percent of overall agreement costs.”
[74] The detail contained in the press release was sufficient to cause the UFU to write to
Commissioner Wilson to request an adjournment of the “Efficiencies” matter before him.54 Ms
Campanaro describes various efforts by the parties to continue with bargaining.
[75] On 2 May 2023, the new wages policy55 was issued and was titled “Wages Policy and
the Enterprise Bargaining Framework” (2023 Wages Policy).
[76] The 2023 Wages Policy was broadly similar in content and structure to the 2019 Wages
Policy and the 2022 Wages Policy. It retained as the “primary pathway” for enterprise
agreement-making substantially the same three “Pillars” in previous versions of the policy. One
notable change to Pillar 1 was that the approved increase in wages would be funded at 3.0
percent per annum (not 2.0 percent as per the 2019 Wages Policy or the 1.5 percent amount
under the 2022 Wages Policy, for example) plus an additional lump sum, cash payment of up
to 0.5 percent of the overall agreement costs.
[77] Under the 2023 Wages Policy:
• There were transitional arrangements that permitted parties to enterprise
agreements who had not finalised new agreements under previous wages policies
to “seek Government approval” to bargain under the new policy parameters.
• There remained a section titled “Enterprise Bargaining Framework” that applied
“before” bargaining, “during” bargaining, and “before seeking employee
approval” of final enterprise agreements.
[2024] FWCFB 43
16
• The distinction between “Major Agreements” and “Non-major Agreements” was
retained, with agreements covering “firefighters” again being specifically listed as
an example of a Major Agreement.
[78] The “Approval requirements” section of the 2023 Wages Policy, which were as follows,
were substantially unchanged from the requirements under the 2019 Wages Policy:
“All proposed enterprise agreements require the approval of Government prior to the
commencement of any of the formal approval requirements outlined in the Fair Work
Act.
To be approved by Government, a proposed enterprise agreement (whether a Major
Agreement or Non-major Agreement) must meet all the conditions specified in Wages
Policy. In addition:
• the public sector agency must verify that it has conducted a comparison of the
terms of the Agreement with the relevant Award, and that the Agreement provides
that each employee will be Better Off Overall than the relevant Award, within the
meaning of the Fair Work Act
• other requirements from the Industrial Relations Policies must be met
The process for seeking Government approval of final agreements under the Framework
differs for Major Agreements and Non-major Agreements. Approval of Major
Agreements at a high level of Government is required.
Eligible public sector agencies must submit proposed enterprise agreements negotiated
under the secondary pathway to Government for approval as soon as possible once
bargaining has commenced. A fast track approval process will apply for these
agreements. Where Government approval is obtained, agencies must comply with Fair
Work Act requirements and seek approval of their agreement from the Fair Work
Commission.”
[79] Negotiations between the UFU and FRV ensued, with the assistance of Commissioner
Wilson. On 19 June 2023, Commissioner Wilson issued a statement (19 June Statement),
which, prior to being issued, he circulated to the UFU and FRV in draft.56 As the 19 June
Statement was afforded significance by the UFU, we set it out in full together with the sole
amendments made to the draft of that statement by the parties (which was in paragraph [2]).
“Statement
[1] Bargaining for a replacement to the Fire Rescue Victoria Operational Employees
Interim Enterprise Agreement 2020 (the 2020 Agreement) has been underway for some
time now. Bargaining has mainly taken place outside of the Fair Work Commission with
claims and responses being discussed and resolved between the parties in an orderly and
constructive manner. There have also been 11 conferences chaired by the Commission
since an application for assistance with a bargaining dispute was lodged by Fire Rescue
Victoria on 4 November 2022.
[2024] FWCFB 43
17
[2] Bargaining has progressed very well to the point that the United Firefighters’ Union
(UFU)UFU and FRV now reports that since the last conciliation conference held on 27
April 2023 all outstanding matters have been resolved, save for the matter of an offer
for increases to wages and related monetary allowances.
[3] The constructive flow of bargaining has been assisted by mutual commitments
between the main actors in the negotiations, Fire Rescue Victoria (FRV) and the UFU
to constructively facilitate the formation of the FRV in July 2020 after the merger of the
Metropolitan Fire and Emergency Services with the professional firefighting operations
of the Country Fire Authority. The constructive industrial relations climate since 2020
has allowed, so I have been informed in the conciliation conferences held, for significant
organisational and operational changes to be made faster than otherwise may be the case
and with potentially greater effect, including financial effect. The UFU points to these
matters as not only a justification for its wages and allowance claims but also as a
reminder that continued constructive cooperation cannot be taken for granted. The UFU
also points to the fact that cooperation in negotiations has taken place against the fact
that the relevant parts of the 2020 Agreement all passed their nominal expiry date no
later than 1 July 2019.
[4] Shortly before the last conciliation conference, held on 27 April 2023, the Victorian
Government announced details of its updated Wages Policy and Enterprise Agreement
Framework. Until the new policy was announced in April 2023 and then later
documented bargaining on the matter of the union’s monetary claims had been unable
to progress as there was both a lack of clarity about the quantum of increase that could
be considered by FRV as well as that FRV had no authority to put forward a wages
proposal for the UFU’s consideration.
[5] It is no understatement to record that the whole 8-month life of this file has been
featured by statements throughout that a comprehensive wages and allowance offer from
FRV to the UFU is “imminent”. The file started that way, and it remains so now.
[6] There is a need for FRV and those who instruct them to take the imminence of a
wages proposal beyond rhetoric and make a proposal to the UFU and other employee
bargaining representatives in the near future which properly responds to their claims.
The publication of the Victorian Government’s Wages Policy and Enterprise Agreement
Framework clears the way for such an offer to be made and it behoves FRV to ensure
an offer is communicated in the very near future.”
[80] On 27 June 2023, the UFU circulated an updated version of the proposed enterprise
agreement to FRV, being ‘Version 14’ referred to in paragraph [5] above. Version 14 includes
the beginning statement: “All highlighting in green denotes agreement between bargaining
representatives of UFU & FRV.” Nearly all terms are highlighted in green, save for a number
which are identified as concerning wages or allowances.
[81] On 3 July 2023, the UFU sought an update on FRV’s wages offer. On 7 July 2023, FRV
stated “We aim to provide you with the offer in writing on Monday 10 July 2023.” Despite that
indication, no such offer was put.57
[2024] FWCFB 43
18
[82] On 26 July 2023, the UFU provided a revised Version 1458 and Analysis of Changes
table, which corrected an inadvertent omission from the previous version.59
[83] On 28 July 2023, the UFU filed its application for an intractable bargaining declaration.
The events following this date can be summarised more succinctly.
[84] On 7 August 2023, FRV wrote to the UFU under cover of a letter titled “Re: Bargaining
– Operational Agreement” (7 August letter).60 The initial parts of the letter were as follows
(emphasis added):
“As you are aware, formal bargaining for the replacement Operational Agreement has
been underway for a number of years, with informal bargaining in place since July 2020
and formal bargaining commencing in April 2022. Much progress has been made
between the bargaining parties in establishing a framework for the replacement
Operational Agreement that will support future harmonisation of Fire Rescue Victoria’s
(FRV’s) workforce.
While FRV and the bargaining representatives have been in direct negotiations, as a
government agency, any offer made by FRV, and all matters agreed in-principle are
subject to government approval and authorisation. FRV has consistently reinforced this
message throughout the bargaining process.
In accordance with the Victorian Government’s 2023 Wages Policy and the Enterprise
Bargaining Framework (the 2023 Wages Policy), FRV is pleased that they have been
authorised by the Government to make a settlement offer.
On this basis, FRV provides the following settlement offer to the United Firefighters
Union (UFU) and other bargaining representatives in relation to a replacement
Operational Agreement: …”
[85] The letter then set out the financial terms of the offer before proceeding to explain that
“there are some elements that FRV has not been authorised by the government to include in the
replacement Operational Agreement as they could result in additional unbudgeted costs.” Those
elements were identified as any reference to a firefighters registration board and any clause that
would allow the Commission to arbitrate for any extra claims.
[86] The letter stated a further qualification to the effect that the offer would be “revised” if
the Commission made a determination on the UFU’s Efficiencies Application or in relation to
a different application (C2023/2071) before the Commission for an increase in allowances that
would affect allowances for operational staff. A further item concerned funding for “staff
increases” (which were noted as having not been approved at that time), although the letter
expressed the view that this issue “would not result in a change to the replacement Operational
Agreement.”
[87] The letter then concluded:
[2024] FWCFB 43
19
“This settlement offer is being put in the context of an overall package, provided on a
“without prejudice” basis.
FRV will be seeking a s240 conference with the FWC to enable discussion of the
settlement offer.”
[88] The UFU’s response, by a letter to FRV on the same day, was swift and direct. It is
unnecessary to summarise its four pages although the statements in the opening paragraph
encapsulate its view, namely that FRV’s offer was “rejected outright” and was “clearly
incompatible with the good faith bargaining obligations” under the FW Act.61 The UFU’s letter
then set out a chronology of bargaining events before a heading “The UFU’s Position.” The
UFU’s position was stated to be as follows:
“Your letter of 7 August 2023 is suggestive of an intention to resile from a number of
agreements already made by FRV in the proposed draft agreement. These agreed clauses
are:
(a) The withdrawal from agreement to the longstanding clause on allowances.
This represents a serious diminution in the conditions of UFU members. This
clause has been used, often by practical agreement between the parties, to
obtain minimal increases for firefighters in circumstances where bargaining
for wage increases has taken an inordinate length of time, just like the current
situation. In fact, as you are no doubt aware there is a claim currently
reserved by Wilson C in which FRV agreed that there should be an increase
under this clause pending resolution of the current drawn-out bargaining
process.
(b) The withdrawal of agreement to the Firefighters’ Registration Board clause.
It is hard to see that this relates to funding issues as opposed to political
issues arising from other litigation.
(c) While your letter does not expressly state it, it makes clear that you now wish
to resile from agreement over staffing increases. These were agreed through
a process in which FRV and the UFU sought to identify what was necessary
for the safe operation of FRV. This is a significant betrayal of the process of
co-operation which has been undertaken by the parties in these negotiations,
and a betrayal of UFU members.
Additionally, your offer fails to recognise or to give effect to the agreement between
FRV and the UFU that efficiencies achieved during the creation of the FRV, which were
only achieved through UFU co- operation, and were intended by all parties to be utilised
to fund wage increases. Those efficiencies on FRV’s figures amount to $117m. The
increases in your offer come nowhere near that figure. The bad faith involved in this
about face, which was detailed in my letters to you of 7 March 2023 and 27 March 2023,
has prevented any prospect of genuine agreement being reached in bargaining.
Your offer is made on the eve of the first hearing of the UFU’s intractable bargaining
application (listed on 9 August 2023). Aside from matters related to the increase in
quantum of wages and allowances everything else was agreed, and you have gone on
[2024] FWCFB 43
20
record to that effect. This offer is rejected because it is not a genuine offer, it is nothing
more than a cynical, disingenuous and transparent attempt to reframe the issues that will
be liable to be arbitrated in an intractable bargaining workplace determination. It is seen
by the UFU as such and is rejected out of hand.”
[89] Further correspondence followed, which is unnecessary to summarise. It suffices to
observe that the UFU’s position was that the “only” thing the parties were bargaining about was
the quantum of wages and, in its view, FRV’s contrary statements were “part of a tactical
ploy.”62
[90] As noted above, on 4 October 2023, the Full Bench of the Commission made an
intractable bargaining declaration in respect of the matter and ordered that there be a post-
declaration negotiating period starting on 4 October 2023 and ending on 18 October 2023.
[91] While correspondence and communications between the parties ensued after 4 October
2023, by 18 October 2023, the parties had not reached agreement on the “overall package.” On
that final day of the post-declaration negotiating period, FRV wrote to the UFU in the terms
that relevantly concluded:63
“UFU Rejection of the Package and Government Approved FRV position
As you are aware, the 7 August Offer reflects the terms (including, amongst other things,
proposed salary increases, lump sum payments and certain conditions) that the Victorian
Government advised FRV it is prepared to approve on an overall package basis. FRV
has not been authorised to agree to any other proposal and it is clear that UFU have
rejected the 7 August Offer, including wages and conditions.
Unfortunately, in circumstances where FRV has made it clear that the 7 August Offer
was put as a package, the UFU's rejection of this package means that there are currently
no matters that meet the definition of 'agreed terms' for the purpose of inclusion in a
workplace determination.
Therefore, whilst it is not FRV's preference, given the UFU's intractable bargaining
application and the status of bargaining outlined above, the matter will need to proceed
to the Commission for the making of a workplace determination.”
[92] We record briefly that the evidentiary material filed by the UFU and FRV was extensive
in volume. The evidence described in this decision, based as it was on documentary material,
was not of itself controversial. The dispute about that evidence concerns its significance.
[93] However, the parties led evidence about a number of other matters. While we have
touched upon some particularly salient aspects of the evidence in the following paragraphs, we
have not sought to summarise its totality. Notwithstanding, we have considered the evidence as
a whole and, in particular, by reference to the question of whether there were “agreed terms”
for the purposes of s 274(3) between the UFU and FRV.
[2024] FWCFB 43
21
[94] As is commonly the case, some of the evidentiary material was not controversial, albeit
not directly probative, such as general background material or contextual material to explain
why certain actions were taken or not.
[95] Other material was of greater controversy. The UFU contends that the Commission
should approach the evidence of Ms Crabtree with caution. It notes that unlike the direct
evidence given by Ms Campanaro for the UFU, Ms Crabtree was not involved in negotiations
until mid to late 2022 and aspects of her evidence were based on information derived from other
unidentified sources, or omitted from inclusion.64 In circumstances where Ms Crabtree did not
commence her role with FRV until July 2022, we accept that any evidence given by Ms Crabtree
in relation to specific aspects of the bargaining meetings prior to this time is of limited probative
value. However, we do not understand Ms Crabtree’s evidence to be solely directed to
bargaining meetings, and it addresses matters including the industrial framework within which
FRV engaged in bargaining65 and the steps taken during the post-declaration negotiating period
between 4 October and 18 October 2023.66
[96] Ms Crabtree was cross-examined at some length about evidence in the First Crabtree
Statement describing private communications between FRV and the Minister’s office or the
Government in about July 2023.67 Various calls for documentary productions were made (and
responded to). We note Ms Crabtree’s evidence about those matters was contained in the First
Crabtree Statement, which was filed in support of the making of an intractable bargaining
declaration. In that context, the private communications between FRV and the Government
were potentially relevant to the decision to make the intractable bargaining declaration,
although we do not consider them relevant to the question of whether, objectively assessed,
there were “agreed terms” for the purposes of s 274(3) of the FW Act.
[97] Ms Crabtree was also challenged under cross-examination68 about the authorisation
FRV was given on 15 June 2023 by the Government to put a revised settlement position to the
UFU. The offer, which was ultimately contained in the 7 August letter, did not specify the
specific condition nominated by Government, set out in the First Crabtree Statement,69 that
should the UFU reject the offer in the 7 August letter, FRV “will reserve its rights to withdraw
in-principle agreement to retain some or all of the restrictive clauses contained” in the current
agreement. Ms Crabtree accepted this was so during cross-examination. The UFU submits that
FRV’s contention that the offer contained in the 7 August letter was framed and approved by
Government is not borne out having regard to the nature of the Government’s authorisation and
the express terms of the 7 August letter which omits the Government’s condition.70 Nor should
the Commission infer, it is submitted, that the UFU understood the dramatic consequence that
would follow as a consequence of rejecting the offer.71 We will return to this issue in our
consideration later in this decision, although we indicate at this point that Ms Crabtree’s
subjective understanding of the effect of the 7 August letter is not a matter we consider is
objectively relevant.
[98] Another area of controversy concerned the testimonial statements by witnesses as to
what was said or not said at particular meetings between the UFU and FRV and, in particular,
evidence by those witnesses stating, to the effect, that various matters were “agreed” or not
between the parties. For example:
[2024] FWCFB 43
22
• In the Third Crabtree Statement, Ms Crabtree states that, at the time the UFU’s
intractable bargaining declaration was made on 28 July 2023, “no matters had been
agreed between FRV and the UFU.” Ms Crabtree states this was “because” (among
other matters) “FRV has, throughout the bargaining process, made it clear to the
UFU (and other bargaining representatives) that any in principle agreement on the
inclusion of particular clause” was subject to Victorian Government approval.72
• In the Third Campanaro Statement, under the heading “The process of reaching
agreement during bargaining” Ms Campanaro makes numerous references to
“agreed clauses” and “agreed items” or the “matters agreed.”73 Other examples
include rolled-up evidence regarding occasions (not specified) where a
representative for FRV – Mr Parkinson – said some of the matters were subject to
Government approval or a package. Mr Parkinson was said to have been
challenged by the UFU “[w]henever” he made such statements by being asked “in
effect” if the “matter was agreed or not,” and he replied it was agreed.74
• In the Second Kefalas Statement, Mr Kefalas said that, during bargaining, “the
parties agreed on clauses as they progressed discussions.” He said further that there
“was no qualification” in relation to the matters “agreed” between the parties
concerning non-wage related clauses “until at least August 2022.”75
[99] In a similar respect, in the Second Kefalas Statement, Mr Kefalas referred to events
“post-August 2022” in which he said FRV “indicated” for the first time that FRV required
Government approval on certain non-wage related matters.76 How the matter was “indicated,”
what words were said, by who or when were not provided except in a summary way.
[100] Mr Kefalas held a specific responsibility for negotiating staffing numbers.77 Mr Kefalas
describes three meetings “prior to formal bargaining” (being prior to about April 2022). He
gives a summary of “these meetings” and then states that, after “the UFU had responded to all
of [FRV] Commissioner Block’s questions, he expressed his agreement to the Plan to increase
the capability (that is the staffing numbers, infrastructure and appliances)…”
[101] We do not consider that the matters we have described at [98]-[100] above to be
sufficiently probative.
[102] Of greater reliability, having regard to its specificity, is evidence such as Ms
Campanaro’s statement regarding the first “formal” bargaining meeting on 26 April 2022. Ms
Campanaro states there was “no discussion” at that meeting of “any qualification” that might
attach to agreements reached by the parties during bargaining and “any” discussion of the wages
policy was confined to early topics she had listed (which were FRV having “approval” to
bargain, that there was an “extension” 2019 Wages Policy until 1 August 2022, and that the
2019 Wages Policy was more beneficial than the 2022 Wages Policy). Further, Ms Campanaro
states that there was an “agreement” at the first formal bargaining meeting that conditions could
not be diminished from those in the 2020 Agreement.78
[103] A particular area of evidentiary controversy concerned the UFU’s awareness of various
elements of the Government’s wages policies. Ms Campanaro was cross-examined about this
[2024] FWCFB 43
23
matter. Ms Campanaro was apparently unaware of, or could not recall, a number of matters
regarding significant elements of the Government’s then 2019 Wages Policy, including:
• The “enterprise bargaining framework” section within that policy was not a matter
Ms Campanaro had paid attention to.79
• Ms Campanaro could not recall “firefighters” being referred to under the “Major
agreements” part of that policy.80
• Ms Campanaro was unaware of the concept, within the “Approval requirements”
part of the policy, that all enterprise agreements required approval of the
government prior to the commencement of any formal approval requirements
outlined in the FW Act. Ms Campanaro was aware, however, that FRV was
required to obtain government approval to commence bargaining.81
[104] It was put to Ms Campanaro that she had read the 2019 Wages Policy quite closely. Ms
Campanaro denied that proposition and, having regard to her lack of understanding or recall
about other significant elements of the wages policy that applied to firefighters, we accept her
denial. Nonetheless, Ms Campanaro was plainly aware of the existence of the 2019 Wages
Policy and that FRV considered itself bound by that policy.82
[105] We are readily satisfied that the UFU, as a factual matter, was aware of each relevant
iteration of the Government’s wages policy and was also aware that FRV considered itself to
be bound by such policies.
Applicable principles
[106] There did not appear to be any general disagreement between the parties83 that the task
of statutory construction begins and ends with consideration of the statutory text, read in
context, having regard to the purpose and policy of the provision under consideration, in
particular the “mischief” the provision is seeking to remedy.84
[107] While the parties were generally aligned regarding the principles of interpretation, they
differed as to how those principles were to be applied to the construction of the statute and the
application of the facts to them.
[108] Section 274(3) defines an “agreed term” for an intractable bargaining determination.
There are a number of elements to the section:
• First, s 274(3) has, at its centre, a requirement that certain matters be “agreed”;
• Second, the FW Act does not state that a term must be “agreed” simpliciter. The
subject matter of what must be “agreed” is that there be a “term” of the proposed
enterprise agreement concerned which “should be included in the agreement”;
• Third, that agreement must be between the “bargaining representatives”; and
[2024] FWCFB 43
24
• Fourth, that agreement must exist at a defined point of time. Where there is a post-
declaration negotiating period in place, the point in time is at the end of that period.
If there is no post-declaration negotiating period, the point in time is at the time
the intractable bargaining declaration was made.
[109] It is uncontroversial that in respect of the third and fourth elements, summarised above:
• the UFU and FRV are the bargaining representatives; and
• as there was a post-declaration negotiating period, the relevant time for an
agreement to subsist is therefore at the end of 18 October 2023 (being 11.59pm on
that date).
[110] The other elements are in controversy.
[111] The FW Act does not provide a definition of “agreed,” as it applies to the first element
of s 274(3) described above. Nor does the statute give definitional guidance as to what is meant
by the words “should be included in the agreement.”
[112] We proceed on the basis that any agreement is a matter to be determined objectively,
having regard to factual matters known between the parties. We did not understand any party
or the Minister to take a different position.
UFU submissions
[113] The UFU notes (and we agree) that, strictly speaking, there can be no enterprise
agreement at all until the employer puts a proposed enterprise agreement - as a whole - to the
ballot of its relevant employees. In bargaining parlance, the UFU states that often parties take
the position that “nothing is agreed until everything is agreed,” which it says is otiose because,
at law, that is the only position until employees have approved by ballot a proposed enterprise
agreement.85
[114] What flows from this, on the UFU’s position, is that the use of the word “should”
indicates that the focus is on some future time when the proposed agreement is finalised.86 The
UFU further contends that the word “should” means the requirement for s 274(3) is “only that
a conditional agreement be reached on a provision” (our emphasis).87
[115] The UFU notes the word “should” reflects a position of desirability, as opposed to the
imperatives “must” or “shall.” Further, the question is whether the parties have agreed a term
should be included in the proposed agreement, not a broader agreement.88
[116] As we understand the UFU’s submissions, a reference to a conditional agreement is met
through the “normal progress of bargaining” where the “parties discuss a matter, settle or reach
agreement on it, and move onto the next one.”89
[117] The UFU submits that support for the above propositions is derived from the purpose of
the intractable bargaining provisions, which is to allow the Commission to “break deadlocks”
[2024] FWCFB 43
25
in bargaining by determining “only” those matters that remain in issue at the conclusion of
negotiations.90
[118] Here, the context of the FW Act is said to support the UFU’s preferred construction.
The UFU relies upon one of the objects of the FW Act in s 3(f) which emphasises enterprise-
level collective bargaining and submits that the legislation permits parties to determine the
content of enterprise agreements with the involvement of the Commission only where expressly
authorised by a provision of the FW Act. The UFU submits that the limitation on the
Commission’s arbitral powers is reinforced by s 270(2) which is designed to facilitate the
making of a workplace determination that includes all of the terms agreed between the parties
and thus s 269 (which deals with when the Commission must make an intractable bargaining
workplace determination) is located in Part 2-4 of the FW Act, titled “FWC’s general role in
facilitating bargaining.”91
[119] In light of its position that s 274(3) requires only a conditional agreement be reached on
a provision, the UFU submits that a construction of s 274 that required “formal agreement” on
terms would undermine the statutory purpose and could be circumvented by facile and
transparent stratagems.
[120] As to the temporal question of when an agreed term must subsist, the UFU contends that
the purpose of the post-declaration negotiating period is to narrow the issues in dispute between
the parties and it is “inconsistent” with the purpose of the intractable bargaining provisions for
parties who have previously agreed on terms to “withdraw from such agreement.”92
[121] The UFU further emphasised, that for the purpose of s 274(3), the focus is expressly
about agreement between the bargaining representatives “and not outsiders.”93 It submits the
fact that the Minister may not have agreed to certain term or even that FRV may have failed to
comply with a Government policy on enterprise bargaining, cannot affect matters agreed
between FRV and the UFU as bargaining representatives.94
[122] Having regard to the above matters, the UFU urges the Commission to find that all terms
identified as “agreed” in Version 14 were agreed terms for the purposes of s 274 of the FW Act
with the only matters remaining in issue at the conclusion of the post-declaration negotiating
period being the quantum of wages and allowances and the funding for the minimum staffing
provisions (the terms of which were otherwise agreed).
FRV and Minister submissions
[123] FRV submits that there are “regrettably” no agreed terms within the meaning of s 270(2)
of the FW Act. This is said to arise because terms previously agreed “in principle” during
bargaining were subject to (a) overall agreement of a package of terms, including wages and
allowances, and (b) Victorian Government approval, neither of which it is said have occurred.95
[124] FRV and the Minister submit that because these conditions remain unfulfilled, there can
be no “agreed term” for the purpose of s 274 of the FW Act.
[125] FRV submits, having regard to the Macquarie Dictionary meaning of the word “agree,”
that the term requires a determined or settled agreement. It contends that there is no textual
[2024] FWCFB 43
26
support for reading s 274(3) as extending to a term agreed only in principle and subject to final
approval. The requirement to include “agreed terms” in an intractable bargaining workplace
determination, is said is to give effect to the “consensus” of the parties.96
[126] FRV says that its agreement was “only ever” in principle, or conditional in light of its
requirement to obtain approval from the Victorian Government before offering, or agreeing to,
any terms. FRV contends that its position is consistent with the conclusion of the Full Bench in
Australian and International Pilots Association v Qantas Airways Limited (ALAEA v Qantas)97
that an employer’s agreement to a term, expressed as being contingent upon acceptance of a
suitable overall package was not an agreed term because “the condition attaching to the
…agreement in respect of [the] matters was not satisfied…”.98
[127] With respect to ALAEA v Qantas, the Minister submits that the Full Bench did not define
the circumstances in which agreement subject to an overall satisfactory package might be
sufficient to amount to an agreed matter. The Minister’s position is that the present
circumstances could not amount to a binding agreement because agreement was subject to both
an overall package and the Government’s authority and further, the bargaining parties had not
reached agreement on the essential monetary terms.99
[128] FRV says the fact that an agreement is made in principle is a specific qualification on a
final determined or settled agreement, such as to facilitate continuing negotiations, but subject
to final confirmation or approval. It submits that to date, that condition – being Victorian
Government approval – has not been satisfied. Victorian Government approval has been given
to FRV to offer or agree on the basis set out in the 7 August letter.100 Accordingly, it is
contended that none of the terms which were the subject of FRV's in principle agreement during
bargaining, but which did not have the requisite Government approval, are agreed terms.101
[129] In any event, FRV submits, the relevant time to assess agreed terms is expressed
s 274(3)(a) to be at the end of the post-declaration negotiating period, namely 18 October 2023.
FRV’s position is that on that day, there was a clear statement from FRV that it did not have
approval to agree to anything other than the 7 August letter, that the 7 August letter was put as
a package and that the UFU had rejected, and continued to reject, that package. FRV submits
that “whatever argument may have been had” by the parties about the status of the terms agreed
in principle by FRV at any other point during bargaining, at the relevant time, those terms were
not agreed.102
[130] FRV therefore contends that all of the matters between the parties are “technically at
issue.” Despite this, FRV submits that with the Victorian Government’s authorisation, other
than the matters FRV is not authorised to agree to or support,103 the matters included in Version
14 are not contested.104
UFU reply submissions
[131] The UFU contends that FRV and the Minister have misconstrued the FW Act and their
contention that there are no agreed terms is erroneous. The UFU says that FRV and the Minister
overlook the purpose of the intractable bargaining provisions as an “aid and adjunct” to the
statutory scheme for enterprise bargaining. In this way, a term under s 274(3) could never be a
[2024] FWCFB 43
27
“finally agreed term” because terms can only be finally agreed by a ballot of the employees to
be covered by the enterprise agreement.105
[132] The UFU contends that there will always need to be an assessment of whether a term is
agreed, or only agreed subject to other matters being resolved. Such an exercise will involve an
objective assessment of what passed between the bargaining representatives and thereby strikes
a balance between promoting the evident purpose of the legislation without imposing terms on
parties which have not been “truly agreed.”106
[133] The UFU submits that FRV’s reliance upon the reaching of a “consensus” by the parties
before an enterprise agreement is “made” is flawed,107 and exposes the constructional error with
FRV’s approach.108 Further, the UFU says that FRV misstates the finding in ALAEA v Qantas,
with the Full Bench stating that there may be circumstances where agreement to a matter subject
to an overall satisfactory package “might mean that matter is an agreed matter…”.109
[134] Further to its position as set out at [115] above, the UFU submits that FRV and the
Minister fail to recognise that the focus of s 274 is on “a term” and not on an overall agreement,
with such approach eliding the difference between the concept of agreement upon the
desirability of including a single term in an agreement (as s 274 requires), and the concept of a
binding overall agreement.110 Specifically, it is said, having regard to the Minister’s submission
as set out at [127] of this decision, that the Minister fails to grapple with the focus on a single
term where there is no binding overall agreement and irrespective of whether other terms
(including essential terms) remain in issue.111
[135] The UFU rejects the contention put against it112 that bargaining will be impeded if
parties negotiating on a conditional basis, or a package basis, are held piecemeal to in principal
agreement on discrete clauses and then subjected to an arbitration outcome on the core issues
of wages and allowances. The UFU’s position is that previously held views about “what is and
isn’t possible under enterprise bargaining have to be reviewed” to take account of the reforms
introduced by the SJBP Act. It says that to do otherwise deprives the reforms of any effect.
Holding bargaining parties to terms agreed “along the way” is a function and effect of the
amendments to the FW Act and ought to be given an appropriate generous construction that
gives effect to their purpose as remedial legislation.113
[136] The UFU notes that neither FRV nor the Minister address its contentions, summarised
at [115] of this decision, as to the temporal aspect of the statutory language and the importance
of the word “should” in the context of s 274. The UFU urges against adopting the construction
sought by the Minister and FRV, which it contends would lead to an outcome where there are
no agreed terms notwithstanding three years of intensive bargaining.114
[137] The UFU asserts that the evidence establishes that at least by 26 July 2023 (being the
exchange of the revised Version 14), agreement was reached between the bargaining
representatives for the purposes of s 274 of the FW Act on all matters except the quantum of
wages and allowances.115 It contends that this is consistent with the 19 June 2023 Statement
issued by Commissioner Wilson with the agreement of FRV.116 The UFU says that FRV’s offer
in the 7 August letter was made after the UFU commenced these proceedings and reflected the
views of the Government, not FRV as the relevant bargaining agent – where only the latter are
relevant.117
[2024] FWCFB 43
28
Applicable principles
[138] Section 274(3) requires the bargaining representatives to have “agreed” that there is a
“term” that “should be included in the agreement.” That agreement must co-exist at the point
in time defined by the statute, which in this matter is at the end of 18 October 2023.
[139] The amendments made to s 274 by the SJBP Act adopted the same formulation for the
subject matter of terms that are “agreed” as was, and still is, used for the “industrial action
related workplace determinations” in s 274(2), as was previously used for low-paid workplace
determinations in s 274(1) (now repealed), and as was used for “bargaining related workplace
determinations” in s 273(3) (prior to its current form). We do not consider that Parliament
intended a different meaning for the current expression of s 274(3) with the amendments by the
SJBP Act, although it is evidently the case that the SJBP Act contemplated readier access to the
intractable bargaining provisions compared to serious breach provisions they replaced, the latter
having “not been effective” in assisting parties to resolve bargaining disputes.118
[140] The FW Act does not define the meaning of “agreed” in s 274(3). We consider its
ordinary meaning applies. “Agreed” in this context is the past participle form of “agree.”
Relevant definitions of “agree” from the Macquarie Dictionary119 include “consent,” “be of one
mind,” and “come to an arrangement or understanding.”
[141] To have “agreed” for the purpose of s 274 does not require formal agreement necessary
for contract law. However, the ordinary meaning of “agreed” in this context requires there to
be a consensus or meeting of the minds between the parties about the subject matter of the said
agreement. The ordinary meaning accords with judicial consideration of the concepts
“arrangement” or “understanding” as those terms are used in the Competition and Consumer
Act 2010 (Cth) (CCA) and its predecessors. In the CCA, those terms appear in statutory
provisions that variously prohibit parties making or giving effect to a provision of a “contract,”
“arrangement” or “understanding” having statutorily-proscribed anti-competitive purposes or
effect.
[142] While the statutory subject matter under the CCA is quite different to the matters
engaged by s 274 of the FW Act, the established cases120 dealing with looser forms of agreement
– namely, arrangements or understandings – recognise a “spectrum of consensual dealings,”
with contracts having a well-understood degree of legal formality at one end and
“understandings” at the other.121 But at all parts of that spectrum, there remains a requirement
for a meeting of minds or consensus122 about the proscribed statutory subject matter, and a mere
hope or expectation is insufficient, even when that hope or expectation in one party was aroused
by the other.123
[143] It is evident from the nature of such consensual dealings that parties are free to resile
from them.
[144] As to the subject matter of the agreement – being a “term” that “should” be included –
we agree with the UFU’s submission that the term “should” is necessarily future looking. But
this does not alter the requirement that the relevant parties must “agree” on that subject matter
and be in agreement at the time required by the statute.
[2024] FWCFB 43
29
[145] Whether the parties are “agreed” is a matter to be assessed objectively. Neither party
suggested to the contrary.
[146] While we accept the UFU’s submission that the nature of the agreement is not to be
approached in a formal, or legalistic manner, there remains the requirement that, as a factual
matter, the bargaining representatives need to have agreed that a term of a proposed enterprise
agreement should be included in the proposed agreement.
[147] Where a party has, objectively assessed, genuinely reserved its position on particular
terms or the entire agreement to the effect that matters are only agreed “in principle” or are
“subject to” a satisfactory overall package being determined, then that is strongly indicative
that those matters would not be “agreed” for the purpose of s 274(3).
[148] The circumstances of each case will need to be determined on the evidence in that
matter. Simply making statements during negotiations that particular terms or the entire
agreement is agreed “in principle” does not automatically preclude a finding of “agreed terms”
for the purpose of s 274(3) although it may do so in the particular circumstances.
[149] The ritual incantation of words of qualification such as “in principle” or the recourse to
an exclusion clause effectively long buried in antecedent negotiations may not, of itself, act as
a barrier to a finding that there are “agreed terms” in a particular bargaining agreement. The
search for an agreed term is for agreement in substance not form.
[150] In industrial bargaining, parties will commonly “give and take” during the bargaining
process. One party will often make a concession over a particular issue on the basis that it will
extract more favourable concessions on a different issue.
[151] The bargaining process is not necessarily linear nor evenly balanced, although it
sometimes might be. For example, a particular issue might be very valuable or sought after by
one party but the other party is indifferent to it. The indifferent party might be willing to concede
that issue for little (or perhaps for goodwill or for the avoidance of protected industrial action)
or it might refuse to yield to that claim without maximising (in that party’s view) what other
benefits it can extract from any concession.
[152] In Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association,124
Bromberg J made observations in the context of attempting to find a “common intention”
between parties in relation to clauses of an enterprise agreement. His Honour stated:
“55 It is not to be expected that an industrial bargaining process will always produce
an agreement where each entitlement provided will be either objectively reasonable or
rational and in harmony with other entitlements, or based on some objectively
discernible purpose that may have explained the reason for its adoption in a predecessor
agreement made under a different bargaining process: see Shop Distributive and Allied
Employees’ Association v Woolworths Limited (2006) 151 FCR 513 at [26] (Gray ACJ)
(SDA v Woolworths). That is not to say that industrial sensibility may not provide a
guide to intent, particularly where one construction of a provision would not further the
industrial interests of either the employer or its employees. But it is to say that the
[2024] FWCFB 43
30
reality of industrial bargaining must be taken into account in the search for intent. It
must be recognised that industrial bargaining is driven far more by competing self-
interests and economic power than by an attempt to rationally balance the legitimate
interest of both the employer and employees in the way that arbitral awards are made or
in the way in which it is assumed legislation like the FW Act is made.”
[153] While his Honour’s observations were in a different context, his observations about the
“reality” of industrial bargaining are informative to discerning whether terms are those that the
parties agree “should be included in the agreement.”
[154] In the bargaining process, progress is often made on the basis that there will be a
complete and final agreement for all matters, in which case concessions made by each party
about matters during the bargaining journey need to be viewed in that context. Commonly,
although not always, the most significant issue will be wages. In such a case, concessions made
by a party will often be conditional upon the final issue of wages being (in that party’s view),
satisfactory.
[155] Section 274(3) defines agreed terms for an intractable bargaining workplace
determination as a term that the bargaining representatives have (at the relevant time), agreed
“should be included in the agreement.” This directs attention to the potential final form of any
agreement. While parties may sometimes agree that, regardless of any other issues, some terms
should go in an agreement, s 274(3) does not extend to terms where there is a conditional
reservation attached to all terms (or all key terms) being satisfactorily arrived at.
[156] When industrial parties are bargaining, they are doing so to secure a final package that
is, overall, better than no new agreement at all. The final package will inevitably include a
number of terms that each party is sufficiently happy with and, quite likely, other terms that the
parties wished was excluded. Concessions through the “give and take” of bargaining before a
final package is approved do not, of themselves, indicate that the bargaining representatives
consider all the terms up to the point should be included in a final package. They may do so for
some terms, but for others they are either expressly or implicitly only doing so on the basis that
the final package will be suitable. We consider so much is self-evident in industrial bargaining.
What the position will be in a particular bargaining process will be determined on the
circumstances of that process.
[157] Similarly, a party that conditionally states (however that condition is expressed) that
certain terms should be included in an agreement has not necessarily agreed, as factual reality,
that those terms should be included in the agreement. All that party might be conveying is that
those terms are agreed on the basis that a satisfactory package will be achieved. A genuine
conditional reservation is inconsistent with an agreement that the particular terms being
discussed “should” (without reservation) be included in the proposed enterprise agreement. If
s 274(3) provided for terms that were conditionally agreed, the position would be different.
However, the statute does not provide for conditional agreements about terms and we consider
it would constitute a significant alteration to the bargaining dynamic for enterprise agreements
under the FW Act if it did so. We do not consider this was Parliament’s intention.
[2024] FWCFB 43
31
Consideration
[158] We earlier found, at [105] of this decision, that the UFU was aware of each relevant
iteration of the Government’s wages policy and that FRV considered itself to be bound by such
policies. It follows from this finding that we consider that at all times the UFU has been aware
that all offers are to be made on an in-principle basis, in that such offers are subject to Victorian
Government approval, and that to be approved by Government, the proposed agreement must
meet all the conditions specified in the applicable wages policy.
[159] Further, we are satisfied and we find that the UFU was specifically aware of the
requirement for the proposed enterprise agreement to be approved by the Minister. The 20
February 2020 Heads of Agreement entered into between the UFU and the then Minister was
acknowledged to be consistent with the Victorian Government’s wages policy and expressly
dealt with bargaining matters, including a commitment by the parties for making the “proposed
FRV Enterprise Agreement.”
[160] The objective requirement that FRV was bound by the wages policies in force is a
determinative matter that is entirely inconsistent with FRV having agreed that any term should
be included in an enterprise agreement, except on a conditional basis that it remained subject to
final approval (which had not been provided).
[161] The existence of the Victorian Government’s wages policies in force from time to time
is a “notorious fact” that industrial bargaining parties in Victoria affected by those policies can
be taken to know about. While it is true that employee bargaining representatives are not
directly subject to those wages policies, the policies permeate industrial bargaining with
Victorian Government agencies because the Government agencies are bound by them. Contrary
to the UFU’s position,125 it was unnecessary for FRV to state at every meeting or in every
communication that an item “agreed” during the course of bargaining was, strictly, agreed
subject to compliance by FRV with the applicable wages policy in place at the time.
[162] In any case, the evidence demonstrates that from at least August 2022, FRV did make
clear statements indicating that compliance with the wages policy was required. In August
2022, following the lodgement of the UFU’s Efficiencies Application, FRV explained in
bargaining that Government approval was required in relation to all matters, including non-
wages related matters.
[163] FRV’s Form F11 dated 4 November 2022, which it lodged with the Commission in the
context of an application for the Commission to deal with a bargaining dispute, noted that
bargaining had occurred on the basis of agreement in principle, subject to reaching an overall
agreement. The Form F11 application further stated that it was intended that the UFU would
provide FRV with an updated draft enterprise agreement (which occurred, as Version 12)
reflecting the amendments agreed in principle. We accept that the matters contained in the Form
F11 to which we have referred accurately reflects FRV’s approach to bargaining, having regard
to the industrial significance of a wages policy for bargaining in Victoria and FRV’s
understanding of the binding nature of such policies upon it.
[164] On 29 November 2022, FRV provided a response to the draft enterprise agreement
provided to it in the form of Version 12. In that response, FRV stated that that the clauses in
[2024] FWCFB 43
32
Version 12, unless otherwise commented on were agreed in principle by FRV, subject to final
agreement on an overall package of provisions (and subject to the UFU’s Efficiencies
Application).
[165] On 10 March 2023, FRV made a monetary offer to the UFU, said to be authorised in
accordance with the 2019 Wages Policy. This offer did not address non-wage related matters
and preceded a further statement by FRV on 14 March 2023 in which FRV reiterated its position
expressed to the UFU on 29 November 2022 as set out at [164] above. FRV further stated that
it had maintained, and continued to maintain, that position throughout bargaining.
[166] In this context, the 19 June Statement issued by Commissioner Wilson, which is
extracted in its entirety at [79] above is instructive. The Statement addresses the restrictions on
progressing the “union’s monetary claims” in the context of the proposal to update the then
applicable wages policy and the “lack of clarity about the quantum of increase that could be
considered by FRV as well that FRV had no authority to put forward a wages proposal for the
UFU’s consideration.” The Statement proceeds to consider the need for FRV “and those who
instruct them” to take steps to respond to the UFU’s claims. We are satisfied that the 19 June
Statement was made in circumstances where the bargaining parties and the Commissioner
understood that any matters resolved between the UFU and FRV had been within the parameters
of the relevant wages policy.
[167] The UFU draws a distinction between the concept of reaching a final agreement, as
against the bargaining parties’ desire to include a single term in an agreement, if a final
agreement is reached. We accept that the focus of s 274(3) of the FW Act is upon agreed terms.
On an objective assessment of the above matters, we are satisfied that the bargaining
representatives did not reach a consensus or meeting of the minds on the terms that should be
included in the agreement – the qualifications attached to FRV’s “agreements” prevent them
being agreed terms for the purpose of s 274(3).
[168] The UFU states that FRV had ostensible authority to “agree” to non-wage items in
bargaining and that FRV did so by various statements and conduct to the effect that many
matters were “agreed.” In the context of the bargaining realities in place where bargaining is
taking place under the auspices of the Victorian Government’s wages policy for a “Major
Agreement,” at no point did FRV conduct itself so as to indicate, objectively assessed, that the
requirements of the wages policies for final approval did not apply or had been given. An
“agreement” that remains subject to a formal process of final review and approval under the
wages policy is not an agreement that particular terms should be included in the proposed
enterprise agreement that the parties were seeking to negotiate. The position regarding
ostensible authority might be different if FRV, without authorisation, asserted that final
approval had been given under the relevant wages policy to make an offer, but this was not the
case before us.
[169] It follows that the bargaining parties did not make any “agreed terms” for the proposed
enterprise agreement.
[170] We have been presently focussed on whether there were any terms that the parties agreed
should be included in the proposed agreement up to and including the issuing of the Statement
on 19 June 2023 by Commissioner Wilson and for the exchange of Version 14 on 6 July and
[2024] FWCFB 43
33
26 July 2023. We have done so because the UFU’s position is that, firstly, there were “agreed
terms” constituted by the conduct of the parties up until that point in time and, secondly, that
FRV did not depart from that position subsequently. As the foregoing conclusions indicate, we
disagree with the UFU’s first premise concerning the establishment of “agreed terms” as at 19
June 2023 or 26 July 2023, because we do not consider there were any terms objectively agreed
by the parties that should be included in the proposed enterprise agreement.
[171] In any event, should our conclusion at [170] be wrong, we are satisfied that the 7 August
letter, which was made on an overall package basis and clearly identified a number of matters
that were not to be included in the proposed agreement, is inconsistent with any term being
agreed in principle. Further, the 7 August letter addressed FRV’s position that any offer made
by it and all matters agreed in principle, are subject to “government approval and authorisation”
and that FRV had consistently reinforced this message throughout the bargaining process.
[172] In this context, any term agreed in principle was surpassed by the 7 August letter, which
contained an “overall package”126 offer which the UFU rejected “out of hand.”127 Further, the
UFU did not agree to the removal or amendment of the specific clauses of concern to the
Government which were set out in the 7 August letter. In these circumstances, the position at
this time was that there were no agreed terms for inclusion in an agreement. This is so
irrespective of whether the 7 August letter contained the ultimatum which the Minister had
sought be included when that offer was authorised by Government on 15 June 2023 (and which
the UFU was unaware of). Notwithstanding the significance the UFU attaches to this purported
omission, the content of the 7 August letter is to be construed on its terms, having regard to the
objective background facts known to the parties. It is readily apparent from the UFU’s same-
day response to the 7 August letter that it construed the offer as “suggestive” of FRV’s intention
to “resile from a number of agreements made by FRV” notwithstanding the absence of a clear
directive to that effect being included in the correspondence. Accordingly, we reject the
contention that the 7 August letter is to no effect.
[173] To the extent that there is any ambiguity in respect of this matter, the 18 October letter128
from FRV to the UFU puts beyond doubt that at the relevant time, being at the conclusion of
the post-declaration negotiating period on 18 October 2023, nothing had been agreed.
[174] As noted above, the UFU contends that at least by 26 July 2023, agreement was reached
between the bargaining representatives on all matters except the quantum of wages and
allowances. The UFU contends that the “agreement” reached at that point in time survived the
correspondence of 7 August and 18 October 2023. The UFU says that neither the 7 August
letter nor the 18 October letter withdrew the terms agreed prior to those events.
[175] We are satisfied and we find that FRV had made it unambiguously clear that following
the UFU’s rejection of the offer in the 7 August letter, no terms were agreed either in principle,
or at all. The 18 October letter was in starker terms. In the clearest of terms, that letter stated,
“there are currently no matters that meet the definition of 'agreed terms' for the purpose of
inclusion in a workplace determination.” That statement is not merely an opinion expressed
about the operation of s 274, it is an objectively manifest disclaimer by one party that it does
not presently agree that any terms should be included in a proposed enterprise agreement.
[2024] FWCFB 43
34
[176] As stated above, while we do not accept that there was an agreement before the 7 August
letter and the 18 October letter were sent, each of those letters is incompatible with the survival
of some residual agreement for the purposes of s 274 coinciding until the end of the post-
declaration negotiating period. Any “agreement” that did persist was premised on a conditional
package requiring approval under the wages policies (which approval did not exist).
[177] Both the UFU and the Minister made submissions in effect recognising the desirability
of narrowing matters in dispute during the post-declaration negotiating period, and contending
that this did not occur because of the approach of the other party.129 Having noted this, we do
not consider either party acted “impermissibly” during the post-declaration negotiating period.
[178] As indicated above, the UFU has raised in its correspondence complaints about the
bargaining conduct of FRV and/or the Minister. While we have considered them for the purpose
of assessing whether there are “agreed terms” within the meaning of s 274(3), we are mindful
that the conduct of the bargaining representatives is a matter that the Commission must consider
in deciding the terms of a workplace determination: s 275(f). For that reason, we make no
further observations here.
Disposition
[179] We have determined that there are no “agreed terms” within the meaning of s 274 in the
matter before us. The application will be listed for a case management conference on a date to
be advised.
DEPUTY PRESIDENT
Appearances:
H Borenstein, W Friend and T Dixon of Counsel for the United Firefighter’s Union of Australia.
R Sweet and M Garozzo of Counsel for Fire Rescue Victoria.
C O’Grady and F Leoncio of Counsel for the Minister of Emergency Services (intervening).
Hearing details:
2023.
Melbourne:
December 18, 19.
Printed by authority of the Commonwealth Government Printer
PR770962
WORK COMMISSION THE SEALLBE THE
[2024] FWCFB 43
35
1 United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180 (Hatcher J, Asbury VP, Hampton DP).
2 PR766779, 4 October 2023.
3 Fair Work Act 2009 (Cth), s 235A(2).
4 Annexure LC-11 to the Third Campanaro Statement Court Book (CB) A109-A744.
5 Ms Campanaro made two earlier statements, respectively dated 11 August 2023 and 21 September 2023, in respect of the
application for an intractable bargaining workplace declaration.
6 Mr Kefalas made an earlier statement, dated 11 August 2023, in respect of the application for an intractable bargaining
workplace declaration.
7 [2023] FWCFB 180 at [23].
8 Following amendments made by the SJBP Act effective from 6 June 2023, there is no Division 2. Division 2 previously
dealt with low-paid workplace determinations.
9 CB A55.
10 Transcript PN1146-PN1147.
11 First Crabtree Statement, [12]-[13] CB D2154.
12 PR720617.
13 Annexure LC-19 CB A781. See also CB D2078, [6].
14 CB D2171.
15 CB D2177; CB A751.
16 Ibid.
17 CB D2180; CB A754.
18 CB D2184.
19 Third Campanaro Statement, [7] CB A27.
20 CB D2203.
21 Third Campanaro Statement, [97] CB A41.
22 CB D2209.
23 Third Campanaro Statement, [8] CB A27-A28.
24 First Crabtree Statement, [33] CB D2158.
25 Third Campanaro Statement, [34] CB A31.
26 Third Campanaro Statement, [19] CB A29.
27 Annexure LC-2, CB A61.
28 Annexure LC-2, CB A62.
29 Transcript of proceedings (Transcript) PN227.
30 Third Campanaro Statement, [58], [103] CB A34, A42; cf Second Campanaro Statement, [6], [7] CB D2095-D2096.
31 Annexure LC-10, CB A103.
32 CB A103-A108.
33 Third Campanaro Statement, [62] CB A35; cf Second Campanaro Statement, [5] CB D2095.
34 Third Campanaro Statement, [63] CB A35.
35 Third Campanaro Statement, [76] CB A36.
36 Third Campanaro Statement, [76]-[92] CB A36-CB A41.
37 CB D2212-D2222, [17].
38 Third Campanaro Statement, [67] CB A35.
39 Annexure LC-13, CB A757; CB D2020.
40 Third Campanaro Statement, [85] CB A39.
41 Annexure LC-19, CB A780.
42 CB D2256; Annexure LC-20, CB A790.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb180.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr766779.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb180.pdf
https://www.fwc.gov.au/documents/awardsandorders/html/pr720617.htm
[2024] FWCFB 43
36
43 CB D2259.
44 Annexure LC-21, CB A793.
45 Cf Annexure JC-1 Attachment 7 CB D2224.
46 Annexure LC-22, CB A798; CB D2267.
47 Third Campanaro Statement, [124] CB A46.
48 CB D2024; Annexure LC-13, CB A761.
49 Annexure LC-23, CB A803.
50 Annexure LC-24, CB A807.
51 Third Campanaro Statement, [86](d) CB A39.
52 Annexure LC-25, CB A809.
53 Third Campanaro Statement, [129] and [137] CB A47-A48, CB A49.
54 Third Campanaro Statement, [130] CB A48.
55 Annexure LC-26, CB A811; CB D2192; CB D2066.
56 Fourth Campanaro Statement, [5] CB A851 and Annexure LC-36, CB A853; Annexure LC-15, CB A763.
57 Third Campanaro Statement, [140]-[142] CB A49.
58 Being the version in Annexure LC-11 CB A109.
59 Third Campanaro Statement, [69] CB A35.
60 Annexure LC-27, CB A821.
61 Annexure LC-28 CB A823.
62 CB D2303.
63 Annexure LC-35, CB A845.
64 Transcript PN1137-PN-1138.
65 First Crabtree Statement, [7] CB D2154.
66 Second Crabtree Statement, [5] CB B15.
67 Eg, First Crabtree Statement, [73] CB D2166.
68 Transcript PN613-PN623.
69 First Crabtree Statement, [67(a)] CB D2165.
70 Transcript PN1044-PN1047, PN1177-PN1178.
71 Transcript PN1180-PN1186.
72 Third Crabtree Statement, [5] CB B77
73 Third Campanaro Statement, [29], [32], [33] CB A30-A31.
74 Third Campanaro Statement, [63] CB A35.
75 Second Kefalas Statement, [29]-[30] CB A18.
76 Second Kefalas Statement, [13] CB A16.
77 Second Kefalas Statement, [20] CB A17.
78 Third Campanaro Statement, [10]-[12], [14] CB A28.
79 Transcript PN190.
80 Transcript PN194.
81 Transcript PN197.
82 Transcript PN204.
83 UFU Reply Submissions, [9]-[10] CB A866.
84 Eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Federal Commissioner
of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Commissioner of Taxation v Unit Trend
Services Pty Ltd (2013) 250 CLR 523 at [47].
85 UFU Submissions, [21] CB A5-A6.
[2024] FWCFB 43
37
86 UFU Submissions, [13] CB A5.
87 UFU Submissions, [13] and [22] CB A5, A6.
88 UFU Reply Submissions, [24]-[26] CB A869; Transcript PN1117-PN1120.
89 UFU Submissions, [15] CB A5.
90 UFU Submissions, [23] CB A6.
91 UFU Submissions, [16]-[20], [22] CB A5-A6.
92 UFU Submissions, [25] CB A6.
93 Transcript PN918; see also UFU Submissions, [66]-[68] CB A12.
94 UFU Submissions, [68] CB A12.
95 FRV Submissions, [4a] CB B4.
96 FRV Submissions, [33]-[34] CB B11.
97 [2013] FWCFB 317; 230 IR 238 at [18].
98 FRV Submissions, [35] CB B11-B12; see also Minister’s Amended Submissions at [85]-[86], [88]-[90] CB C31-C33, C33-
C34.
99 Minister’s Amended Submissions, [101] CB C36.
100 Minister’s Amended Submissions, [90] CB C34.
101 FRV Submissions, [37], CB B12; Minister’s Amended Submissions, [90] CB C34.
102 FRV Submissions, [38] CB B12.
103 See Minister’s Amended Position Document CB C3-C6.
104 Annexure LC-11 CB A109-A744.
105 UFU Reply Submissions, [13]-[14] CB A867.
106 UFU Reply Submissions, [23] CB A868.
107 Transcript PN1012-PN1015.
108 UFU Reply Submissions, [14]-[15] CB A867.
109 [2013] FWCFB 317; 230 IR 238 at [18].
110 UFU Reply Submissions, [18]-[19] CB A868.
111 UFU Reply Submissions, [20] CB A868; Transcript PN1120-PN1123.
112 FRV Submissions, [34] CB B11; Minister’s Amended Submissions, [104]-[105] CB C37-C38.
113 Transcript PN1126-PN1130.
114 UFU Reply Submissions, [29] CB A869.
115 UFU Reply Submissions, [32] CB A871.
116 Transcript PN914.
117 UFU Reply Submissions, [44] CB A875.
118 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Explanatory Memorandum at [789].
119 Seventh edition, 2017.
120 A comprehensive summary of which was provided in Australian Competition & Consumer Commission v BlueScope Steel
Limited (No 5) [2022] FCA 1475 (O’Bryan J) at [101]-[108].
121 Ibid, [102](a).
122 Ibid, [102](b).
123 Ibid, [102](c).
124 [2023] FCAFC 66.
125 Transcript PN1158.
126 See paragraph [87] above and Annexure LC-27 CB A821; see also paragraph [52] above and Annexure LC-10 CB A103.
127 See paragraph [88] above and Annexure LC-28 CB A823.
128 See paragraph [91] above and Annexure LC-35, CB A845.
129 Transcript PN1211, PN1318.
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb317.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb317.htm
