Applications by Block, Ken [2020] FWC 3428 (26 August 2020)

[2020] FWC 3428

Fair Work Act 2009

s.320 - Applications to vary a transferable instrument

s.319 - Applications that a transferable instrument cover non-transferring employees of new employer

(AG2020/1310, AG2020/1311, AG2020/1312, AG2020/1313, AG2020/1314, AG2020/1315)

Applications to vary transferable instruments - applications for orders that transferable instruments cover non-transferring employees - whether applicant was a person likely to be the new employer covered by the transferable instruments - meanings of "arrangement" discussed - meaning of "between" discussed - applications granted in each case.

[1] The organisation of fire services in Victoria has undergone a substantial restructure affecting the employment of thousands of career firefighters and related personnel previously employed by the Metropolitan Fire and Emergency Services Board (MFB) and the Country Fire Authority (CFA).

[2] The impending commencement of a restructured fire service in Victoria under the auspices of a new body called "Fire Rescue Victoria" (FRV) prompted the several applications for orders made under ss.319 and 320 of the Fair Work Act 2009 (FW Act) with which this decision deals. In short compass, the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic) (Reform Act) creates FRV. On 1 July 2020[1] (Commencement Day), FRV assumed the functions of the MFB and some of the functions of the CFA. Part 6 of the Reform Act contains transitional provisions dealing with the transfer of CFA career firefighters and all MFB employees to FRV. Part 6, inter alia, preserves the terms and conditions of employment for employees transferring from the MFB or CFA to FRV when FRV came into existence (Statutory Guarantee).[2]

Organisations, employees and industrial instruments affected

[3] The MFB was a statutory authority constituted under the Metropolitan Fire Brigades Act 1958 (Vic) (MFB Act). Its functions as set out in s.7 of the MFB Act were, inter alia, to provide:

• fire suppression and fire prevention services in the metropolitan district of Melbourne;

• emergency prevention and response services in the metropolitan district of Melbourne; and

• carry out any other functions conferred on the MFB.

[4] The MFB employed approximately 2,400 employees, comprising in the order of 2,100 career firefighters, 300 corporate and technical employees, covering corporate and business support functions, 60 mechanical workshop employees, and 15 executives who are not covered by an industrial instrument. The MFB also engaged approximately 40 further staff across its workforce through on-hire agencies.[3]

[5] Several enterprise agreements cover and apply to the MFB. These instruments between them also apply and regulate the terms and conditions of employment of the preponderance of MFB's employees.[4]

[6] The Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016[5] (MFB 2016 Operational Agreement) applies to MFB operational employees up to the rank of Assistant Chief Fire Officer (Operational Employees). It commenced operation on 25 February 2019, it covers the United Firefighters' Union of Australia (UFU) and passed its nominal expiry date on 1 July 2019.

[7] The Metropolitan Fire and Emergency Services Board Corporate & Technical Employees Agreement 2017[6] (MFB Corporate & Technical Agreement) applies to MFB employees engaged in corporate, technical and operational support roles (Corporate & Technical Employees). It covers the UFU and the Australian Municipal, Administrative, Clerical and Services Union (ASU) and its nominal expiry date is 3 November 2021.

• Volunteer Fire Brigades Victoria (VFBV) represents CFA Volunteers. Volunteers, not being employees of the CFA, cannot be covered by an enterprise agreement covering the CFA.

• On 14 July 2016, the CFA reissued a NERR to the career firefighters because at the time, the CFA and the UFU believed that the earlier issued NERR did not meet the requirements of the FW Act.[16]

• On 12 August 2016, the CFA Board voted to submit the Proposed CFA 2016 Operational Agreement to a ballot of career firefighters.[17] The Proposed CFA 2016 Operational Agreement was the product of an agreement between the CFA and the UFU in its bargaining representative capacity. On 31 August 2016, the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 was introduced into the Parliament and was passed by both houses on 10 October 2016.

• The Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016 amended the FW Act by creating the notion of an "objectionable emergency management term". That is a term in an enterprise agreement that covers an employer that is a designated emergency management body (which captures the CFA) which, in broad terms, has, or is likely to have, the effect of restricting the body's ability to manage, support or acknowledge its volunteers or requiring the body to consult with any other person or body before taking any action in relation to its volunteers. Section 254A of the FW Act makes provision for representative volunteer bodies to make a submission to the Commission in relation to matters concerning enterprise agreements that could affect the volunteers of a designated emergency management body.

• There ensued much publicly aired consternation, including by VFBV and some members of the CFA Board, about the Proposed CFA 2016 Operational Agreement, its purported impact on volunteers and the views of the CFA as to whether the Agreement should be approved.

• On 28 May 2019, the Victorian Minister for Police and Emergency Services issued a direction to the CFA Board Chair about the CFA's administrative implementation of the Proposed CFA 2016 Operational Agreement. The Minister directed that the CFA adopt the CFA Operational Staff Policy.[18] On 11 July 2019, the CFA Board resolved to adopt the CFA Operational Staff Policy and to implement the terms of the Proposed CFA 2016 Operational Agreement, with the exception of certain identified clauses.[19]

[13] The CFA Operational Staff Policy is expressed to apply to the CFA, all employees employed under the CFA 2010 Operational Agreement, and Managers Community Safety (MCS Employees). While MCS Employees are within the scope of the Proposed CFA 2016 Operational Agreement, the Country Fire Authority / United Firefighters Union Managers Community Safety Enterprise Agreement 2005 (2009 Extended and Varied Version) [20] (CFA MCS Agreement) applies to their employment. The UFU is covered by that agreement, which passed its nominal expiry date on 1 October 2010 and remains in operation.

[14] The broad objective of the CFA Operational Staff Policy is expressed to be the implementation of a number of initiatives aimed at meeting the challenges facing the CFA and to maintain a highly skilled and motivated workforce, which ensures the provision of a professional integrated fire service delivering high quality service to the community. The CFA Operational Staff Policy gives effect to various improvement initiatives (referred to as the Operational Staff Improvement Initiatives) and other agreed documents, as agreed through the CFA/UFU Consultative Committee under the CFA 2010 Operational Agreement. The Operational Staff Improvement Initiatives and agreed documents are expressed to form part of the CFA Operational Staff Policy, which can only be changed by agreement under clause 24 of the CFA 2010 Operational Agreement.[21]

[15] There is a great deal of similarity between the Proposed CFA 2016 Operational Agreement and the MFB 2016 Operational Agreement as 102 clauses and three of the schedules to the agreements are substantively identical. The Proposed CFA 2016 Operational Agreement contains 13 clauses and one schedule which provide for interoperability between CFA and MFB, including the conditions for a common rank structure for senior operational personnel in both the CFA and the MFB. By contrast, there are no references to interoperability in the CFA 2010 Operational Agreement. The Proposed CFA 2016 Operational Agreement delivers further beneficial terms and condition of employment to career firefighters which are not provided for in the CFA 2010 Operational Agreement.

[17] Mr Ken Block was appointed Fire Rescue Commissioner of FRV on 3 December 2019 under s.9(1) of the Fire Rescue Victoria Act 1958 (Vic) (FRV Act), as the MFB Act is now known since being amended by s.38 of the Reform Act, by Order of the Governor in Council of the State of Victoria.[24] The period of his appointment is from 1 July 2020 to 30 June 2025.[25]

[18] Mr Block has lodged six applications to the Commission which seek to give effect to the Statutory Guarantee. The applications seek orders varying the six enterprise agreements to which reference has earlier been made which currently apply to employees of the MFB and the CFA who transferred to FRV on the Commencement Day. Each is said to be a transferable instrument.

[19] On the Commencement Day, the Reform Act amended the MFB Act and the CFA Act to effect changes to Victoria's fire services framework, particularly in relation to metropolitan areas. Specifically, the Reform Act:

(i) abolish the MFB and establish FRV to take on its functions;

(ii) abolish the positions of Chief Executive Officer of the MFB and Chief Officer of the MFB, and establish the positions of Fire Rescue Commissioner and Deputy Fire Rescue Commissioner;

(iii) establish the Strategic Advisory Committee to advise the Fire Rescue Commissioner;

(iv) change the boundaries of what was previously known as the Metropolitan Fire District, which has become known as the Fire Rescue Victoria Fire District (FRV Fire District);

(v) provide a new mechanism for changing the boundaries of the FRV Fire District by establishing the Fire District Review Panel to review the FRV Fire District; and

(vi) establish a Fire Services Monitor and a Firefighters Registration Board; and

(i) make it an objective of the CFA to support the recruitment, development and retention of volunteer officers and members;

(ii) recognise the CFA as a fully volunteer fire fighting service, in line with its original purpose;

(iii) confirm that the CFA will no longer employ or engage career firefighters or any other paid staff to engage in firefighting duties, save for Chief Officers, Deputy Chief Officers and FRV employees who are seconded to the CFA; and

(iv) allow certain functions to be performed and powers to be exercised within the FRV Fire District to support co-location of volunteer brigades with FRV units.

[20] The Reform Act amends s.6 of the MFB Act to establish FRV. FRV brings together career firefighters from the CFA and MFB under one organisation to lead fire services in metropolitan Melbourne and major regional centres. It replaces the MFB and takes over its functions to:

• (a) provide for fire suppression and fire prevention services in the FRV Fire District. As outlined above, the Reform Act provides for an expanded (and renamed) fire district known as the FRV Fire District which extends the boundaries of the former metropolitan fire district to encompass outer urban and larger regional centres. These boundary changes are intended to address the increasing demand, complexity and risk profile within these areas arising from population growth, land use and industrial changes;

• (b) provide for emergency prevention and response services in the FRV Fire District;

• (c) implement the fire and emergency services priorities of the Victorian Government;

• (d) provide operational and management support to the CFA in consultation with, and as agreed by, the CFA, to meet the CFA's objective under s.6B of the CFA Act, including support to maintain, strengthen and encourage the capability of volunteers; and

• (e) carry out any other functions conferred on FRV by the MFB Act or the regulations or any other Act.

[21] Section 7C of the Reform Act establishes:

• (a) a Fire Rescue Commissioner; and

• (b) as many Deputy Fire Rescue Commissioners as the Governor in Council of the State of Victoria considers necessary.

[22] The Fire Rescue Commissioner:

• (a) constitutes FRV;

• (b) has all the functions, duties and powers of FRV; and

(c) has any other functions, duties and powers conferred on the Fire Rescue Commissioner by or under:

(ii) any other Act or regulations under any other Act.

[23] Part 6 of the Reform Act contains transitional provisions which deal with the transfer of CFA career firefighters and all of the MFB's employees to FRV. Section 82 of the Reform Act inserts the following new sections into the MFB Act which provide for the transfer of business from MFB to FRV:

(a) s.99, which provides that on the Commencement Day (among other things):

(i) all rights, assets, liabilities and obligations of the MFB immediately before its abolition become rights, assets, liabilities and obligations of FRV; and

(ii) FRV is substituted for the MFB as a party in any proceedings, contract, agreement or arrangement commenced or made by or against or in relation to the MFB;

(c) s.101, which relevantly provides for the transfer of MFB employees to FRV on the same terms and conditions and with recognition of service and accrued entitlements, with effect from the Commencement Day;

(d) s.102, which together with a new Schedule 3, provides for the transfer of career firefighters and integrated stations of the CFA to FRV on the same terms and conditions and with recognition of service and accrued entitlements, with effect from the Commencement Day; and

(e) s.103, which provides for the transfer of other CFA employees (who would not otherwise be transferred under s.102) at the direction of the Minister. Section 102 of the Reform Act applies to employees transferred pursuant to s.103 as if that transfer occurred by operation of s.102.

[24] The CFA is protected as a volunteer firefighting service and retains its existing volunteer CFA brigades, which will continue to service their communities. The Reform Act relevantly amends the CFA Act by:

(a) inserting s.2[26], which sets out objectives relating to the interaction between the fire services agencies, being FRV and the CFA, namely to

• promote collaboration and coordination between fire services agencies to best meet the safety needs of the community; and
• recognise the importance of maintaining capacity to respond to peaks in demand for fire services within fire services agencies; and
• recognise and value the contribution of volunteer brigades; and
• recognise that both volunteer firefighters and career firefighters are vital to delivering safe and sustainable fire services; and
• maintain the ability of fire services agencies to respond to critical incidents, to prevent and suppress fires and to protect life and property.

(b) substituting the words "first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner"[27] in s.6F of the CFA Act for:

"a fully volunteer fire fighting service under the command and control of a paid Chief Officer and supported where necessary by other paid staff. The Parliament recognises that this does not preclude the Authority from employing paid staff in the role of Chief Officer, Deputy Chief Officer and Chief Executive Officer or from entering into a secondment agreement (within the meaning of section 25C(10) of the Fire Rescue Victoria Act 1958)."

(c) inserting s.20AB[28] which provides the powers of the CFA in relation to volunteer brigades located with the FRV Fire District; and

(d) inserting s.20AC[29] which provides for volunteer brigades to be recognised and valued, and requires FRV (subject to operational requirements) to request the assistance of volunteer brigades to prevent or supress fire, or to protect life or property, in the FRV Fire District.

[25] Each application is made by Mr Block in his capacity as the Fire Rescue Commissioner. FRV is the new employer of each of the relevant employees covered by the agreements that are the subject of the applications.[30] FRV is, since Commencement Day, "constituted by the Fire Rescue Commissioner".[31] Although FRV did not come into existence until the Commencement Day, I am satisfied that the substantial identity between Mr Block and FRV the Reform Act scheme establishes, gives my Block standing to make the applications. First, he has standing in the capacity of a person which, at the time the applications were made, was likely to be the new employer for the purposes of applying for an order under s.319 of the FW Act. In any event, there is little doubt that Mr Block as Fire Rescue Commissioner constituting FRV, is now the new employer. Secondly, he has standing in the capacity of a person which, at the time the applications were made, was likely to be covered by each of the transferrable instruments that are the subject of the applications, for the purposes of applying for an order under s.320 of the FW Act. Again, there is little doubt, for reason shortly to be stated, that Mr Block as Fire Rescue Commissioner constituting FRV, as the new employer is now covered by each of the transferrable instruments the subject of the applications. I accept that under the scheme the Reform Act establishes, the acts of Mr Block, as Fire Rescue Commissioner, and the embodiment of FRV, are those of FRV.

[26] The various discretionary powers in relation to transferrable instruments in Part 2-8 of the FW Act are conditioned upon there being a 'transfer of business' from an old employer to a new employer.[32] Section 311(1) of the FW Act sets out when a transfer of business occurs and relevantly, for these applications, provides:

"(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work."

[27] Mr Block contends that a transfer of business occurred on the Commencement Day from an old employer (the MFB or CFA as applicable) to a new employer (FRV). Each of the first three preconditions contained in s.311(1)(a) to (c) were satisfied at the Commencement Day in respect of each employee covered by each of the agreements the subject of the applications, by operation of ss.101-103 of the Reform Act. He says the relevant 'connection' (for the purposes of s.311(1)(d)) is an asset transfer prescribed by s.311(3) of the FW Act, which occurred on Commencement Day.

[28] There is no doubt that FRV owns and has the beneficial use of assets that each of the MFB and CFA owned or had beneficial use of, that related and/or were used in connection with the transferring work. Ownership of former MFB assets transferred on the Commencement Day by operation of s.99(c) of the Reform Act. Ownership of former CFA assets will transfer on the approval date of an allocation statement by operation of s.106 of the Reform Act.

[29] The relevant question is whether FRV's ownership and beneficial use of those former MFB and former CFA assets is brought about in accordance with an arrangement between the MFB and FRV, and between the CFA and FRV. I consider that the word "arrangement" in s.311(3) of the FW Act may comfortably be used to describe the legislative scheme which the Reform Act puts in place and which on the Commencement Day gave FRV ownership and beneficial use of the former MFB and former CFA assets. An "arrangement" described in s.311(3), need not be confined to an agreement or understanding created by two or more persons or entities. It can, and in my view does, extend to the relationship between two or more parties created by another through legislation. In this way arrangement means, inter alia, something that is arranged in a particular way, here, by the Reform Act. The broad construction of the word "arrangement" that I prefer, is consistent with [1222] of the Explanatory Memorandum to the Fair Work Bill 2008 (FW Act EM), which provides that the "word arrangement is intended to be interpreted broadly".

Next is the issue whether the "arrangement" is "between" the MFB and FRV, and between the CFA and FRV. In my view the use in s.311(3) of the preposition "between" is not confined to a circumstance were the "arrangement" is made as between the old and new employer or their associated entities. The preposition "between" can also indicate a connection or relationship involving two or more parties. Here the Reform Act is the arrangement which establishes FRV to carry out functions, or some of them, that hitherto were carried out by the MFB and CFA. In the result, pursuant to the arrangement, FRV, , assumes ownership and beneficial use of the former MFB and former CFA assets that were used in connection with the provision of services pursuant to the functions that are transferred to FRV.

"1204. The circumstances in which a transfer of business occurs under Part 2-8 are broader than those contemplated by the current transmission of business provisions contained in Part 11 of, and Schedule 9 to, the WR Act.

1205. The WR Act provisions are based on earlier provisions construed by the High Court in PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59; (2000) 201 CLR 648 and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194. In deciding whether there has been a transmission of business between private sector entities for the purposes of the WR Act, courts and tribunals have examined the character of the business (or part) in the hands of both the old employer and the new employer - where the character of the business is the same, there is likely to be a transmission of business. There must also be a succession, assignment or transmission of 'a business' - that is, some assets (tangible or intangible) must move between the old employer and the new employer.

1206. Although the provisions of this Part use the term transfer of business, they are not intended to require the focus under current Part 11 of the WR Act on what the 'business' of the old employer is and whether the new employer has in some way taken over that 'business'. They instead focus on whether there has been a transfer of work between two employers and the reason for the transfer of that work or, viewed another way, the connection between the two employers."

[33] There is also nothing in the transfer of business provisions of the FW Act, the object in s.309 or in the objects of the FW Act more generally, and no hint in the FW Act EM suggesting a conscious decision or intention by Parliament that public sector employees who have their work transferred as a result of a restructure implemented by legislation should be treated any differently from a private sector restructure effected by bilateral arrangement. The substantive change brought about by Part 2-8 of the FW Act was to enlarge the catchment area, by abandoning the narrow focus under the WR Act on the 'business' of the former employer, in favour of a broader scheme focusing upon the work performed by the transferring employee.

[34] The object of Part 2-8 is to provide a balance between the protection of employees' terms and conditions of employment, and the interests of employers in running their enterprises efficiently. Those considerations align here as is evident by the support for the applications, as does the construction I favour.

[35] I am therefore satisfied that the transferrable instruments the subject of these applications cover FRV because on Commencement Day the connection described in s.311(3) of the FW Act was realised. Section 320 therefore applies. Section 319 is also engaged because, for the reasons earlier stated, there was a transfer of business from each of the CFA and the MFB to FRV on 1 July 2020.[33]

[36] The Commission may vary a transferable instrument under s.320(2) of the FW Act, inter alia, to enable it "to operate in a way that is better aligned to the working arrangements of the new employer's enterprise."

[37] Putting to one side the applications proposing amendments be made to the CFA 2010 Operational Agreement and the CFA MCS Agreement, the other applications propose variations which primarily focus on amending references to the relevant employer, and accommodating the operation of FRV within its new management and governance framework (including FRV's expanded fire boundaries).

[38] The proposed variations to the CFA 2010 Operational Agreement and the CFA MCS Agreement are said to be necessary to preserve terms and conditions of employment of transferring employees. For the reasons earlier described in this decision, the actual terms and conditions of employees covered by the CFA 2010 Operational Agreement and CFA MCS Agreement are not confined to those in the agreements. Employment terms and conditions are also to be found in the Proposed CFA 2016 Operational Agreement which is given effect through adoption by the CFA of the CFA Operational Staff Policy.

Whether to vary the transferrable instruments and to make coverage orders affecting non-transferring employees who perform or are likely to perform the transferred work

[43] In deciding whether to vary each transferable instrument the subject of the applications account must be taken of the matters enumerate in s.320(4) of the FW Act, which are:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the transferable instrument as varied;

(b) whether any employees would be disadvantaged by the transferrable instrument as varied in relation to their terms and conditions of employment;

(c) if the transferrable instrument is an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

[44] Substantially similar matters must also be taken into account in deciding whether to make an order under s.319 of the FW Act for a transferable instrument to cover non-transferring employees of a new employer who are performing or are likely to perform transferred work to which the transferable instrument relates.

1. MFB 2016 Operational Agreement, CFA 2010 Operational Agreement and the CFA MCS Agreement

[45] These instruments each deal with the terms and conditions of employment of operational, or as earlier described, career firefighters. These operational firefighters are, on and from the Commencement Day, employed by FRV. The proposed variations would combine to form a single agreement title described as the "Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020".

[46] That agreement would be structured so that there would be:

• several overarching clauses which apply to all Operational Employees of FRV;

• Division A, which would reflect the MFB 2016 Operational Agreement, as varied; and

• Division B, which would be the CFA 2010 Operational Agreement, as varied to reflect the Proposed CFA 2016 Operational Agreement and CFA Operational Staff Policy.

[47] The precise terms of the proposed variations to each of these instruments, which are agreed with the UFU, are set out in a series of tables filed in these proceedings by Mr Block.[34] The number of the amendments proposed is significant and in the interests of brevity, the text of each proposed amendment is not set out in this decision.

[48] Following the hearing on 22 and 24 July 2020, the Applicant advised of an outstanding issue in relation to clauses 48.8 and 48.9 and Schedule 26 of Division B. In an email to my Chambers on 17 August 2020, the Applicant advised of a consent position as to the outstanding issues. On 19 August 2020, the ASU raised an objection on the basis that the consent position reached in relation to clause 48.8 and Schedule 26 of Division B was likely to have an adverse impact on ASU members employed at the CFA. On 25 August 2020, the ASU withdrew the objection.

[49] The consolidated version of the agreements, as varied, is set out in Annexure A to this decision.

1. MFB Corporate & Technical Agreement, MFB Workshops Agreement & CFA 2016 PTA Agreement

[50] The effect of the variations sought would amend these agreements to reflect the position of FRV as the successor of MFB. The variations are intended to ensure that, subject to necessary modification, the terms of each agreement will apply to FRV in respect of employees of FRV engaged in the classifications currently regulated by these agreements.

[51] The proposed variations focus on amending references in each agreement to the relevant employer from the MFB to FRV and amending certain terms of each agreement in order to accommodate the operation of the new agency within the new management and governance framework established by the Reform Act, including FRV's expanded fire boundaries.

[52] The precise terms of the proposed variations to these instruments, which are agreed with the AMWU in the case of the MFB Workshops Agreement, and the UFU in the case of the other two instruments, are set out in a series of tables filed in these proceedings by Mr Block.[35] The number of the amendments proposed is significant and in the interests of brevity, the text of each proposed amendment to the MFB Corporate & Technical Agreement, MFB Workshops Agreement & CFA 2016 PTA Agreement, is not set out in this decision.

[53] The consolidated version of the MFB Corporate & Technical Agreement, as varied, is set out in Annexure B to this decision.

[54] The consolidated version of the MFB Workshops Agreement, as varied, is set out in Annexure C to this decision.

[55] The consolidated version of the CFA 2016 PTA Agreement, as varied, is set out in Annexure D to this decision.

[56] In each case, Mr Block seeks an order under s.319(1)(b) to provide that the relevant agreement (as varied) will cover a non-transferring employee of FRV, who performs or is likely to perform, the transferring work for FRV.

1. Views of the employer and employees (ss.320(4)(a) & 319(3)(a))

[57] The applications to vary and the proposed variations to each agreement are supported by Mr Block (and so FRV) as applicant and the person likely, at the time the applications were made, to be the new employer. The proposed variations are also supported by the employee organisations covered by the various agreements, the UFU which represents the vast majority of employees who would be affected by the variations, the AMWU and the ASU. APESMA did not file any material and did not appear at the hearings. It has been given an opportunity to participate in the proceedings and to comment on the applications. APSEMA has not said that it is opposed to the variations proposed to the CFA 2016 PTA Agreement or to the orders sought under s.319 of the FW Act.

[58] Exhibit 2, an affidavit of Ms Laura Campanaro, an official of the UFU, sets out the methodology underpinning, and the ensuing results, of a survey the UFU conducted of its members about the proposed variations. Exhibit 2 discloses overwhelming support of operational personnel affected by the proposed variations, for the proposed variations.

[59] Exhibit 3 is a declaration by Ms Kaitlyn Gulle, a Partner of Lander & Rogers, then solicitors for Mr Block.[36] Exhibit 3 sets out the methodology underpinning, and the ensuing results, of surveys the MFB and CFA conducted of their employees covered by the MFB Workshops Agreement, MFB Corporate & Technical Agreement and CFA 2016 PTA Agreement. Exhibit 3 discloses overwhelming support of Workshops Employees, Corporate & Technical Employees and CFA PTA Employees affected by the proposed variations, for the proposed variations. As to the CFA 2010 Operational Agreement, MFB 2016 Operations Agreement and the CFA MCS Agreement, the CFA and MFB did not conduct separate surveys of employees covered by these agreements, but rely on the results disclosed in Exhibit 2 as accurately reflecting the views of the relevant employees affected by these applications.

[60] Taken together, the relevant views about which account must be taken, overwhelmingly support the proposed variations to the various agreements the subject of these application, and so in each case this consideration weighs in favour of making the variations sought.

1. Any employees disadvantaged by the variation or by the order (ss.320(4)(b) & 319(3)(b))?

[63] No employees covered by any of the agreements the subject of these application will be relevantly disadvantaged by the variations proposed. The terms and conditions the transferring employees currently enjoy will continue to operate vis-a-vis the transferring employees under each agreement as varied in their employment with FRV. The absence of disadvantage weighs in favour of making the variations sought in each case.

[64] As to the orders under s.319(1), the question of disadvantage to any employee is to be assessed with reference to the relevant modern award in each case. It is unquestionably the case that the terms and conditions for which provision is made under each of the agreements, including by their proposed varied form, will, if the orders sought are made, provide for substantially more beneficial rates of pay and conditions of employment when compared to the applicable modern award. Plainly this consideration weighs in favour of making the orders sought in each case.

[65] The nominal expiry date of each agreement is as follows:

• CFA MCS Agreement - 1 October 2010

• CFA 2010 Operational Agreement - 30 September 2013

• MFB Workshops Agreement - 30 June 2019

• MFB 2016 Operational Agreement - 1 July 2019

• CFA 2016 PTA Agreement - 28 November 2020

• MFB Corporate & Technical Agreement - 3 November 2021

[66] The nominal expiry dates of four of the agreements have passed, in the case of the CFA MCS Agreement, long ago passed. Two of the instruments operate within their nominal life.

[67] Normally in relation to an enterprise agreement, the passing of a nominal expiry date, particularly one that has long ago passed, would likely weigh against amending it in favour of allowing bargaining to bring about a more relevant and up to date instrument. But the circumstances under which these applications are brought are unique, or at least rare. The Reform Act from Commencement Day has, in effect, continued the terms and conditions of employment for which these instruments apply pursuant to the Statutory Guarantee. Given this, there is merit in varying the agreements in the manner sought, including those which have passed their nominal expiry dates, to make them more operationally relevant, functional and attuned to the changing environment which the Reform Act has ushered in. This consideration in the circumstances does not weight against the variations sought. For similar reasons, it does not weight against making the orders sought.

1. Negative impact on productivity absent variations (s.320(4)(d)); Negative impact of the transferrable instruments s.319(3)(d)

[68] I accept that the transfer of the agreements without the variations proposed would likely have a negative impact on the productivity of FRV's workplace because the agreements are not tailored to the requirements of FRV's operations and the changes effected by the Reform Act. No one has suggested otherwise. This consideration therefore weighs in favour of making the variations sought.

[69] As to s.319(3)(d), as the instruments have transferred and apply to FRV, the consideration does not arise in the context of the orders sought. Nevertheless, the making of the orders sought will not have a negative impact of the productivity of FRV's workplace. To the contrary, allowing for the operation of inferior terms and conditions of employment for non-transferring employees is likely to lead to difficulties in recruitment and to industrial unrest in the workplace, both of which would likely negatively impact the workplace.

1. Significant economic disadvantage (ss.320(4)(e) & 319(3)(d))

[70] FRV is unlikely to incur significant economic disadvantage as a result of the transferrable instruments, with the variations sought. I accept, as Mr Block contends, that in light of the changes to fire and emergency service management and delivery brought about by the Reform Act, viewed in the context of the other statutory considerations, the matter does not weigh, or at least not heavily, against making the variations sought.

[71] As to s.319(3)(e), as the instruments have transferred and apply to FRV, the consideration whether FRV will incur significant economic disadvantage as a result of the agreements covering it, does not arise. It will certainly not incur significant economic disadvantage by reason of the orders sought.

1. Degree of business synergy (ss.320(4)(f) & 319(3)(f))

[72] As FRV is a new entity commencing only with transferring employees, it does not have current workplace instruments although the relevant modern awards will cover it. In the circumstances I consider this to be a neutral factor in respect of both the variations and orders sought.

[73] FRV is a new entity bringing together a substantial operational capacity formerly under the management and control of the MFB and CFA. It plays a critical role in keeping Victorian communities safe. There is public interest in ensuring professional fire services in Victoria can be delivered in an optimal way, and that industrial instruments governing the employment of those charged with delivering those services, as well as those who's employment supports the provision of these services, are appropriately adapted to meet the requirements of the new FRV structure. The proposed variations are consistent with, and will likely advance, those interests. Much the same may be said about the proposed orders. There are no matters of which I am aware which would suggest the making of the variations or the orders sought would negate, or be contrary to, the public interest.

[74] For the reasons stated, taking into account the matters in s.320(4) of the FW Act in relation to the proposed variations to the transferrable instruments, and s.319(3) in relation to the coverage orders sought affecting non-transferring employees, each of these matters either weigh in favour or are neutral as to the making of the variations and orders sought. Taken together the matters favour the granting of the applications in each case. There are no other matters which would suggest that the variations and orders sought in respect of each agreement should not be made.

[75] In these circumstances the variations and the orders sought will be made.

[76] The variations and orders are separately issued in PR720617. The variations will operate on and from the date the order is issued. The orders will operate upon any non-transferring employee of FRV from the time when such an employee commences employment with FRV and starts to perform the relevant transferring work.

C O'Grady QC and A Pollock of Counsel for the Applicant

RC Kenzie QC and TJ Dixon of Counsel for the United Firefighters' Union of Australia

L Wiegard on behalf of the Australian Municipal, Administrative, Clerical and Services Union

[1] Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019, s.2. That section provides that Parts 3 to 10 of the Reform Act take effect on a date to be proclaimed. That date was 1 July 2020

[2] Metropolitan Fire Brigades Act 1958, ss.101 and 102, as amended by s.82 of the Reform Act

[24] Exhibit 1 at [7] and annexure KB-1

[26] Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019, s.56 of the Reform Act

[30] See ss.101(a), 102(c) and 103(2)(a) of the Metropolitan Fire Brigades Act 1958 as amended by s.82 of the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019

[31] Section 6 of the Metropolitan Fire Brigades Act 1958 as amended by s.27 of the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019

[32] Fair Work Act 2009, s.310

[33] Fair Work Act 2009, s.317

[34] Comparison Table 1, Comparison Table 2, Comparison Table 3 and Comparison Table 4 and proposed transfer instruments filed by the Applicant on 30 June 2020. Revised versions of Comparison Table 1 and Comparison Table 2 were filed by the Applicant on 30 June 2020.

[35] Comparison Table 5, Comparison Table 6 and Comparison Table 7 and proposed transfer instruments filed by the Applicant on 30 June 2020

[36] On 17 August 2020, Lander & Rogers filed a Form F54 - Notice that lawyer or paid agent has ceased to act for a person. Hall & Wilcox advised that it had commenced to act for the Applicant on 17 August 2020.

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