Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Application by the Metropolitan Fire and Emergency Services Board

Application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016; whether the Minister should be permitted to adduce evidence; whether proposed evidence relevant to an issue in the proceeding; leave to adduce evidence granted.

[1] On 3 April 2018, the Metropolitan and Fire and Emergency Services Board (MFESB) lodged an application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (Agreement). The application was made pursuant s.185 of the Fair Work Act 2009 (Act) and relates to a single enterprise agreement.

[2] Pursuant to directions made by me on 4 June 2018 as varied on 8 June 2018 and 27 June 2018, the Minister for Small and Family Business, the Workplace and Deregulation (the Minister) filed and served an outline of submissions and evidentiary material upon which he intends to rely in relation to the application for the approval of the Agreement. Similarly, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) filed and served an outline of submissions upon which it intends to rely in relation to the application for the approval of the Agreement.

[3] The Metropolitan Fire and Emergency Services Board and the United Firefighters' Union of Australia (UFU) have had an opportunity to raise objections to the Minister's and VEOHRC's materials and the Minister and the VEOHRC were afforded a right of reply.

[4] Pursuant to the directions referred to above, the various objections would be dealt with on the papers.

[5] I have had an opportunity to review and consider the materials filed, the objections raised and the responses and replies received to the objections. That which follows is a summary of the evidentiary materials filed by the Minister, the objections raised by the MFESB and the UFU and my determination in respect of those objections.

[6] The VEOHRC has not sought to file any evidentiary material.

[7] The Minister advances four primary grounds upon which he suggests that the Agreement does not meet the requirements of the Act. Those grounds are that the Agreement:

1. contains discriminatory terms;

2. does not pass the better off overall test (BOOT);

3. contains objectionable terms; and

4. contains non-permitted matters.

[8] In support of the above contentions, the Minister filed an outline of submissions and pursuant to the directions, the Minister also filed evidentiary material consisting of numerous documents that were part of the record in the 4 yearly review (AMOD Review) of the Fire Fighting Industry Award 2010 (FFIA) including parties submissions and witness statements, a number of reports from various sources, an array of enterprise agreements applying within the emergency services sector throughout Australia and statistical information. The extent to which the Minister relies on those materials is limited to that which he describes as being "critical parts". These critical parts are enumerated in a table accompanying the material.

[9] The Minister also filed and relies on a further four documents containing details of the anticipated evidence that will be given by each of Mr Malcolm Connellan, Mr Michael Anthony Werle, Mr David Youssef and Ms Lucinda Nolan. Orders for the attendance at the Commission to give evidence have been issued on application by the Minister directed to three of the four aforementioned prospective witnesses.

[10] The Minister proposes to rely on this material to make good his contention that I cannot be satisfied that the Agreement meets the approval requirements of the Act because it contains both discriminatory terms and objectionable terms directed at part-time employees and those employees who are entitled to flexible working arrangements by reason of s.65 of the Act.

[11] On 15 November 2016, upon application by the MFESB and the Country Fire Authority (CFA), a Full Bench of the Commission varied the FFIA by removing a prohibition against the engagement of part-time employees within the public sector of the fire-fighting industry.[1] The proceeding involved a significant volume of evidentiary material and a number of hearings (AMOD Review).

[12] In support of his contention that the Agreement contains both discriminatory and objectionable terms, the Minister proposes to rely on "critical parts" of the materials from the AMOD Review. Those critical parts consist of variously identified parts of the submissions filed by the MFESB and the CFA, witness evidence, transcripts of the proceedings, expert reports on part-time employment and labour in Australia, an array of enterprise agreements that apply in different states throughout the country covering fire and emergency services personnel, newspaper articles and statistical information. The Minister outlines the relevance of each particular document into various sub-categories which purport to demonstrate that the Agreement does not satisfy the requirements set out in the Act.

[13] Mr Werle, in his capacity as the Director of Human Resources of the MFESB made a witness statement in the AMOD Review. The Minister seeks to rely on [10] - [16], [17] - [20] and Annexure MW-1 of that witness statement and PN699 - PN701 of his oral evidence to demonstrate the discriminatory impact of restrictions on part-time employment, that part-time employees are not permitted to work in operational roles or "on shift" and that which is said to be the UFU's refusal to agree to requests for part-time employment.

[14] Mr Youssef, in his capacity as the Deputy Chief Officer of the MFESB made a witness statement, reply witness statement and gave oral evidence in the AMOD Review. The relevant parts of that material on which the Minister seeks to rely are [6] - [48] of his witness statement, [6] - [48] of his reply witness statement and PN1458 - PN1471 of his oral evidence. The evidence sought to be led is said to support what the Minister contends is an absence of insurmountable operational impediments to part-time work in the firefighting industry.

[15] Ms Nolan, in her capacity as CEO of the CFA made a witness statement and gave evidence in the AMOD Review. The relevant parts of that material on which the Minister seeks to rely are [6] - [20], [26] and [27] - [31] of her witness statement and PN390 - PN398 and PN413 - PN420 of her oral evidence. The Minister seeks to rely on this material in furtherance of his contention about the discriminatory impact of restrictions on part-time employment, the denial of previous requests for part-time employment and the absence of insurmountable operational impediments to part-time work in the firefighting industry.

[16] Mr Connellan is the Deputy Commissioner of the New South Wales Fire and Rescue (NSWFR) and in his role manages a number of branches within that organisation including employee relations and health and safety. Mr Connellan made a witness statement and gave oral evidence in the AMOD Review. The relevant parts of that materials on which the Minister seeks to rely are [31], [40] - [49] and [30] - [39] of his witness statement and PN 4005 - PN4006 of his evidence. The Minister seeks to rely on this material to support his contention about the discriminatory impact of restrictions on part-time employment and the absence of insurmountable operational impediments to part-time work in the firefighting industry.

[17] Mr Connellan's witness statement also outlines some further developments pertaining to employment arrangements in the NSWFR since April 2016 including statistics on the number of employees engaged on part-time arrangements.

Consideration whether the Minister should be permitted to adduce evidence

[18] The UFU opposes the grant of leave to the Minister to adduce evidence on two bases. First, that on a proper construction of s.195 of the Act, that provision is not directed to terms of an enterprise agreement that are indirectly discriminatory. Secondly, it opposes on relevance grounds. The UFU contends that the material sought to be relied upon by Minister from the AMOD Review is of little relevance.[2] The UFU contends that the case that was advanced by the parties in those proceedings turned on the question of whether the amendments sought were necessary to achieve the modern award objectives outlined in the Act.[3] The UFU says that this is to be contrasted to the present proceeding which is an application for the approval of a single enterprise agreement that is being opposed to by the Minister and the VEOHRC on the basis that the Agreement contains discriminatory and objectionable terms.[4]

[19] The UFU says that based on its interpretation of the relevant statutory provisions concerning what constitutes an objectionable term, there is nothing in the Agreement that would impugn those provisions and thus, the materials sought to be relied on by the Minister should be seen as "peripheral".[5]

[20] Similarly, the MFESB contends that the materials filed in the AMOD Review which the Minister seeks to rely on are of little value in the context of this proceeding.[6] The MFESB contends that there are fundamental differences between the lines of inquiry that were undertaken in the AMOD Review vis-à-vis that which the Commission is faced with in this application.[7] In addition, the MFESB contends that it is telling that the Minister has elected not to put before the Commission the evidence that was adduced by the UFU in the AMOD Review addressing safety and other concerns associated with an unfettered right to introduce part-time work in the public fire services industry.[8]

[21] The MFESB contends that the AMOD Review was directed towards the question of whether the FFIA should be varied to achieve the objectives set out in s.134 of the Act.[9] The MFESB submits that that inquiry was not directed at how those arrangements might be implemented in the context of a particular enterprise nor the statutory requirements in ss.186 - 187 of the Act to which this application is concerned.[10] Moreover, the MFESB contends that the way in which part-time working arrangements are implemented within its enterprise, subject to meeting the statutory requirements, is entirely a matter for the parties to the agreement.

[22] Nevertheless, the MFESB does not object to the Commission receiving the Minister's material. It says that the relevance, any weight to be given and whether it assists the Commission to inform itself in respect of the application to approve the Agreement are matters that it will address at the hearing of the application.[11]

[23] The Minister contends that the Commission is not bound by the rules of evidence and is obliged by the Act to perform its functions in a manner that is fair and just,[12] that the evidence that has been filed is directly relevant to whether there are discriminatory and/or objectionable terms in the Agreement and that that evidence is of significant probative value.[13] The Minister says that although the AMOD Review concerned the prohibition on part-time employment in the FFIA, the evidence that was adduced by the MFESB and the CFA directly concerned the disadvantages on women and carers as a result of that prohibition on operational part-time firefighting in the current enterprise agreement.[14]

[24] The Minister contends that it is implicit that the evidence from the AMOD Review going to the disadvantages is inherently relevant to the issue of determining whether the restrictions of part-time firefighting in the Agreement are discriminatory against women and carers.[15] Moreover, the justification for not addressing the materials adduced by the UFU in the AMOD Review is due to the Full Bench noting the narrow professional experience of the UFU's witnesses and a clear preference for the evidence of the MFESB and the CFA.[16]

[25] Lastly, whilst the Minister accepts that the evidentiary material should be considered in light of the context of the AMOD Review, the different statutory inquiries in the applications should not give rise to a blanket exclusion, nor should the probative value of the evidence be automatically discounted.[17]

[26] The Commission may, except as provided in the Act, inform itself in relation to any matter before it in such manner as it considers appropriate.[18] It is not bound by the rules of evidence and procedure in relation to a matter before it.[19] It must also perform its functions and exercise its powers in a manner that is relevantly fair and just, quick, informal and avoids unnecessary technicalities, and is open and transparent.[20]

[27] It does not follow however, that the rules of evidence are to be completely ignored. Indeed, it will often tell against exercising powers in a manner that is fair and just, for example, to admit into evidence material that is not relevant to an issue that requires determination in a matter before the Commission. It may be oppressive or unfair on a party in as much as a party may feel compelled to lead evidence in response to material that is not relevant to an issue in the preceding. Moreover, the admission of irrelevant material into evidence carries the undesirable risk that irrelevant material is inappropriately taken into account by the decision-maker in determining a matter and thereby leading to the prospect of error. There are therefore good reasons of efficiency, fairness and sound administration of justice that, although not bound by the rules of evidence, these rules are not ignored and should, at the very least, guide the Commission in determining which material is to be admitted in a proceeding and which is to be excluded.

[28] In determining whether the material to which objection is raised is relevant, it is necessary to briefly understand the way in which the Minister proposes to advance his contention that the Agreement contains discriminatory terms as concerns part-time employment.

[29] The Minister proposes to contend, inter-alia, that the term "discriminates" in s.195(1) of the Act, includes both direct and indirect discrimination.[21] This construction is contested. The resolution of this issue will not turn on evidentiary considerations.

[30] However, contrary to the submissions of the UFU, I do not consider that it is appropriate to in effect determine that issue at this preliminary stage for the purposes of dealing with the evidentiary objections. It seems to me that the construction for which the Minister contends is at least arguable. The arguable nature of the contention advanced by the Minister was, I think, recognised by Vice President Hatcher in Metropolitan Fire and Emergency Services Board[22] wherein the Vice President, after reviewing some relevant authority, said:

"Although it may be characterised as obiter, paragraph [95] of Klein cannot be disregarded. Gordon J expressed the view that, on the basis of the judgment of Mason CJ and Gaudron J (with which Deane J agreed) in the High Court decision in Waters v Public Transport Corporation, the expression "discriminate against" used in s 153(1) encompassed indirect discrimination. Neither SDA nor Klein dealt directly with s 195(1), so they could be not regarded as strictly binding on the question of whether that provision encompassed direct (sic) discrimination. Nonetheless either decision could be called in aid of the competing propositions in that respect. It is also important to note that in United Firefighters' Union of Australia v Country Fire Authority the Federal Court Full Court did not foreclose a future argument that a provision in an enterprise agreement might constitute an objectionable term on the basis of indirect discrimination. SDA was concerned only with award terms alleged to be discriminatory under s 153(1), and not with objectionable terms as defined in s 12."[23] [Footnotes omitted]

[31] The Minister's outline of submissions identifies the provisions of the Agreement concerning part-time employment which are said to be discriminatory terms. According to the outline, the Minister will contend, inter-alia, that there is no rational operational impediment for the restrictions to part-time employment in the Agreement and that such restrictions are not based on the inherent requirements of the particular position concerned. This plainly engages with s.195(2)(a) of the Act. The material to which earlier reference has been made seems directed to that contention. It appears on its face to be relevant to that issue. It is another matter altogether whether the evidence makes good that contention, or whether it will ultimately be relevant if I determine, contrary to the Minister's contention, that s.195 is concerned only with direct discrimination.

[32] Turning then to the Minister's contention as to be existence of objectionable terms in the Agreement. An "objectionable term" is one that requires, has the effect of requiring, or purports to require or has the effect of requiring; or permits, has the effect of permitting, or purports to permit or have the effect of permitting - a contravention of Part 3-1 of the Act, which deals with general protections.[24]

[33] The Minister points to a number of provisions in the Agreement which he says require the MFESB, or permit the MFESB in the requisite sense, to:

• prohibit part-time employees from performing operational firefighter duties, save in exceptional circumstances;

• refrain from promoting part-time employees due to insufficient operational firefighting experience and, consequently, hold back other benefits only available to employees of certain classifications;

• prohibit part-time employees from holding the role of Fire Services Communication Controller (FSCC) or Senior Fire Service Communication Controller;

• further restrict part-time opportunities for employees seeking part-time work by insisting upon a statutory declaration evidencing any entitlement under s.65 of the Act and the Agreement, and UFU approval. [25]

[34] These contentions appear directed to a contravention of s.351(1) of the Act. They may also be directed to s.342(1), Item 1 (d) of the Act. Both provisions are concerned with acts of discrimination. Section 351(2)(b) provides that the prohibition in s.351(1) does not apply to action that is taken because of the inherent requirements of the particular position concerned. The prohibition also does not apply if the action is not unlawful under any anti-discrimination law in force in the place where the action is taken. An anti-discrimination law includes relevantly, the Equal Opportunity Act 2010 (Vic).

[35] As with the discriminatory terms contention, it appears to me at the very least, that the evidentiary material upon which the Minister proposes to rely is directed at supporting the contention that the exclusion of certain action by s.351(2) from the prohibition of discriminatory adverse action in s.351(1) is not engaged. The material appears to me, on its face, to be relevant to that issue.

[36] I therefore agree with the Minister's submission that, having regard to the complexity of the issue, the question whether the material sought to be adduced in evidence is relevant should not be determined at a preliminary stage, but rather after having had the benefit of hearing all of the evidence and the full argument on the issue at the scheduled hearing. This is also consistent with the position advanced by the MFESB. I will therefore allow the Minister to tender the material and to adduce the evidence from witnesses foreshadowed in the witness statements and outlines filed by the Minister.

[37] Before concluding, I should briefly also observe that whilst it must be acknowledged that some of the material which was the subject of evidence in the AMOD Review was led for a particular and different purpose to that which is the purpose in these proceedings, that it was led for a particular purpose in another proceeding does not mean that it cannot be or is not relevant to a different purpose in this proceeding.

[38] It should be made clear that my determination should not be taken as indicating that the material that is to be admitted will ultimately be relevant, or that it will have any particular weight or significance, but is merely indicative of my intention to allow the evidence to be adduced and to be tested by cross-examination in order to inform myself about the issues that have been raised in respect of this application. Submissions as to ultimate relevance and weight (if any) that should attach to the evidence or to any aspect of it will, as the MFESB foreshadowed, doubtless be the subject of submissions at a later time.

[39] For the reasons stated, I will allow the Minister to tender the material and to adduce the evidence from witnesses foreshadowed in the witness statements and outlines filed. Whether the material is ultimately relevant need not be determined now. Rather, that issue will be determined in light of all of the evidence and after the full argument on the issues at the scheduled hearing.

[1] [2016] FWCFB 8025

[2] Outline of Submissions of the United Firefighters' Union of Australia dated 29 June 2018 at [31]

[6] Submissions of the MFB - Leave to Adduce Evidence dated 29 June 2018 at [5]

[11] Submissions of the MFB - Leave to Adduce Evidence dated 29 June 2018 at [6]

[12] Minister's Outline of Submissions in Response to Objections to Evidence dated 3 July 2018 at [5]

[16] Ibid at [16] citing [2016] FWCFB 8025 at [189] and [192]

[18] Fair Work Act 2009 (Cth), s.590(1)

[19] Fair Work Act 2009 (Cth), s.591

[20] Fair Work Act 2009 (Cth), s.577

[21] Minister' s Outline of Submissions dated 22 June 2018 at [82]

[22] [2018] FWC 2441

[24] Fair Work Act 2009 (Cth), s.12

[25] Minister' s Outline of Submissions dated 22 June 2018 at [118]

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