Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] The United Firefighters' Union of Australia (the UFU) alleges a dispute arising under an enterprise agreement relating to the endorsement by Fire Rescue Victoria (FRV) of the establishment of a firefighters' registration board.

• [2] The Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (2020 Agreement) obliges the FRV to endorse the establishment of a firefighters' registration board and to do so by demonstrating this through a letter of endorsement to the UFU.[1] A dispute has arisen under the 2020 Agreement about the FRV's obligation and how it requires fulfilment. This decision deals with that dispute.

• [3] The UFU argues that the FRV must fulfil its obligation by entering into a Service Contract with an entity it has formed for the purposes of firefighter registration, the Victorian Professional Career Firefighters Registration Board Ltd (referred to as the Corporate Board).

• [4] After extensive conciliation on the subject did not lead to an agreement between the parties the UFU's application was programmed for hearing on 29 and 30 August 2022. A procedural decision issued by me on 10 October 2022 deals with a development which took place after the hearing, being the admissibility of a statutory declaration prepared by the FRV's solicitor and dealing with a ministerial direction to the FRV.[2]

• [5] Mr Herman Borenstein KC with Mr Ben Bromberg of Counsel appeared for the UFU and Mr Malcolm Harding SC with Mr Matthew Minucci of Counsel appeared for the FRV. The Victorian Attorney General and Minister for Emergency Services, Ms Jacqueline Symes MP, sought and was granted intervention by me, represented by Mr Chris O'Grady KC with Ms Rebecca Davern of Counsel. Each party and the Minister sought and was granted permission by me to be represented by a lawyer with me being satisfied that to do so would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

• [6] Two identical clauses in the 2020 Agreement are in question and are in these terms,

"FRV endorses the establishment of a firefighters registration board. FRV will demonstrate this by letter of endorsement to the UFU Secretary."

• [7] The UFU seeks through the arbitration of the substantive dispute that the Commission answers two questions and grants an order,

"Question 1 - Whether or not the UFU should be included as:

b. a party to the consultation process under the Service Contract?

c. a party to the dispute resolution process under the Service Contract?

d. a party to a termination process, which requires agreement from both the FRV and the UFU to initiate the termination of the Service Contract?

Question 2 - Whether Schedule 4 of the Service Contract should be amended to reflect the VPCFRB's Constitution."

Order that FRV enter into a contract with the Victorian Professional Firefighters Registration Board Limited ACN 659 177 992 and the UFU in the form and to the effect of the proposed service contract, subject to completion of the details in Schedules 1 and 3 (which is attached as Attachment A to these orders), for the provision by the company of the services of registering qualified firefighters for FRV and such other services as are provided for in the contract."

• [8] The submissions of the parties on each of these matters are summarised below.

• [9] Each of the above questions should be answered in the affirmative and the proposed order issued. The UFU submitted that affirmative answers to these questions were appropriate since its understanding was that, other than those clauses which were identified as in contest, the remainder of the Service Contract was not contested by FRV.[3]

• [10] In relation to the proposed order, and the proposed Service Contract to which it refers, the UFU made submissions on two principal matters: whether the Commission can or should make such an order, and what the form of the Service Contract should be. Its submissions on these subjects were made in response to matters raised by the Minister following her refusal to consent to the FRV's entry into the proposed Service Contract and her subsequent intervention in the arbitration of this matter.

Question One - Should the UFU be included as a party to the Service Contract?

• [11] The UFU submitted that if it is found in the affirmative that they should be a party to the Service Contract, then the answers to the three questions identified as sub-sets of Question One at [7] above will necessarily follow in the affirmative.[4]

• [12] It argued that the reason the dispute is being resolved by way of a Service Contract is due to a request of the FRV, and the board could be established without such a contract, as the Interim Board was.[5] As the manner in which the proposed new board is being established, through a service agreement, is at the behest of the FRV, the UFU should not be penalised for assenting to this method of resolving the dispute. [6]

• [13] The UFU submitted that the Service Contract is properly understood as "a vehicle through which the parties have agreed to resolve an industrial dispute."[7] The UFU being a party to this contract is important, as it ensures the UFU has standing to protect the outcome of the dispute by being able to enforce its terms.[8] Further, as the main beneficiaries of the agreement will be firefighters employed by FRV, almost all of whom are members of the UFU, the UFU has a significant interest in being party so as to ensure the scheme works as intended and so that it may be involved in the resolution of any difficulties or issue that arise.[9]

Question Two - Should Schedule 4 of the Service Contract be amended to reflect the VPCFRB Constitution?

• [14] In relation to Question Two, the UFU submitted that the proposed amendments to clause 5 of Schedule 4 of the Service Contract to reflect clause 17.1 of the VPCFRB Constitution should be made to provide consistency between the VPCFRB Constitution and the Service Contract, as consistency in these circumstances would provide certainty to the parties and reduce the risk of further disputes.[10]

• [15] The proposed order extracted above (the Order) is an amended version of the order initially proposed by the UFU. On the second day of hearing the UFU tendered variations to their proposed order which altered it such as to render the signature of the contract by FRV under the order as subject to the completion of details in Schedules 1 and 3.[11] On the second day of hearing, the UFU also tendered a variation to the proposed Service Contract to which the Order refers (the Service Contract). This variation altered clause 16.2 of the Service Contract so that the need for the UFU's consent to the termination of the Service Contract would only be required while the 2020 Agreement remained in operation. [12] Previous to this alteration, the requirement that the UFU consent to a termination of the Service Contract had no expiry specified. [13]

• [16] The FRV's position was circumspect, giving wary support to the matters before the Commission. The FRV's written submissions were tendered into evidence through the filing of a statutory declaration of David Catanese, the FRV solicitor, which attached correspondence from the Minister to the then Acting Fire Rescue Commissioner refusing consent.[14] Neither the FRV's brief outline of argument, nor the statutory declaration, expressed a view as to the consequences of this refusal of consent, other than to note the Minister's view that the FRV must ensure the Fair Work Commission (FWC) and the affected parties were advised in a timely manner that ministerial consent had not been provided.[15]

• [17] In its oral submissions, the FRV submitted that it did not oppose either affirmative answers to the questions or for the Order as amended to be granted[16] and, in relation to the Matters Pertaining Issue, stated that,

"The FRV has proceeded on the basis that those clauses are matters that pertain to the employment relationship and as the agreement indicates, the FRV agreed to include those clauses therein, on that basis."[17]

• [18] The Minister opposed the Commission determining the dispute in the manner sought by the UFU. In particular, the Minister argued that the FRV was obligated not to sign the Service Contract and that "for FRV to sign the agreement, it would be acting beyond power and, in effect, ultra vires".[18]

• [19] The Minister's submissions, and the UFU responses to them, may be divided into four primary jurisdictional matters:

1. Whether there is an extant dispute to be arbitrated (the Extant Dispute Objection);

1. Whether clauses 42 and 49 of the Agreement are matters that properly pertain to the Agreement in accordance with ss.172 and 253 of the Act (the Matters Pertaining Objection);

1. Whether the proposed Service Contract tendered to the Commission would impermissibly fetter the powers granted to the FRV under the Fire Rescue Victoria Act 1958 (Vic) (FRV Act) (the Fettering Objection);

1. Whether the Minister's indication that she did not consent to the FRV's entry into the proposed Service Contract entailed that the Commission should not use the power granted under s.739 to order the FRV the enter in the agreement (the Ministerial Consent Objection).

• [20] In addition to these jurisdictional matters, the Minister also submitted that, regardless of the jurisdictional finding, the concerns raised by her refusal to consent are substantive and should be found by the Commission to weigh against granting the order sought (the Service Contract Content Objection).

• [21] Before turning to the matters requiring determination relevant content of the 2020 Agreement should be noted:

• Formation of the 2020 Agreement was the subject of extensive consideration by Deputy President Gostencnik in 2020. Orders made by the Deputy President included incorporating predecessor enterprise agreements as transferable instruments, with Division A applying to former MFB employees and Division B applying to former CFA employees. A byproduct of the situation is that there are separate terms, albeit substantively identical, applying to each Division for the matters requiring consideration in this decision.

• The two registration board terms are set out above. Observably the 2020 Agreement does not specify the form of the registration board to which the FRV must give support. Conceivably the board could be an internal function established for that purpose, a third-party entity, or, indeed, one established by legislation.

• The 2020 Agreement's dispute resolution procedures are within the Agreement's Division A (applicable to former MFB employees) at clause 21, page 39, and Division B (applicable to former CFA employees) at clause 26, page 413. The provisions are wide and allow disputes to be raised and progressed about a broad range of matters. The Division A term provides the following (with the Division B term in substantively identical terms):

21.1.1. all matters arising under this Division; and

21.1.2. all matters relating to the application of, or for which express provision is made in this Division; and

21.1.3. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this Division; and

21.1.4. all matters pertaining to the relationship between FRV and UFU, whether or not express provision for any such matter is made in this Division; and

21.1.5. all matters arising under the National Employment Standards.

The parties agree that disputes about any such matters may be dealt with by using the provisions in this clause."

A stepped escalation process is set out within each clause for unresolved matters, with the final step stated in the following way (from Division A);

"21.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWC. The FWC may utilise all its powers in conciliation and arbitration to settle the dispute."

Steps taken for the formation of a registration board

• [22] A proposal to establish the Victorian Professional Career Firefighter Registration Board (VPCFRB), referred to by the UFU as the Interim Board, was first considered by the MFB/CFA/UFU Integrated Consultative Committee on or around 24 April 2020. After the FRV was formed on 1 July 2020 the proposal was put to the newly formed Integrated Consultative Committee on 25 September 2020. The proposal was then put to the same committee in February 2021 and endorsed on that occasion. [19]

• [23] On 23 April 2021 the FRV's Fire Rescue Commissioner wrote to the UFU Secretary providing an endorsement of sorts for the establishment of a firefighters' registration board, with the correspondence in these terms,

Establishment of the Victorian Professional Career Firefighters Registration Board

I am pleased to inform you that at its meeting on Thursday 15 April 2021 , the Fire Rescue Victoria Executive Leadership Team endorsed, and I have approved, the immediate establishment of the proposed Victorian Professional Career Firefighters Registration Board ('Registration Board') in accordance with the attached terms of reference that were agreed upon by the Operational Consultative Committee in February 2021.

As a first step towards formal establishment, the Registration Board's members must be nominated for appointment.

Pursuant to clause 6.3 of the terms of reference for the Registration Board:

2. United Firefighters Union - Victorian Branch appoints two members

3. United Firefighters Union - Victorian Branch appoints one senior retired professional career firefighter from the Country Fire Authority, the former Metropolitan Fire and Emergency Services Board of Fire Rescue Victoria with professional operational training experience.

The term of members' appointments is three years and their role and functions are detailed in the terms of reference.

Only the senior retired professional career firefighter member is to be remunerated for service on the Registration Board. This member's remuneration is required to be set 'at an appropriate commercial rate for Board services'.

Once appointed, the first tasks of the members include holding the first meeting of the Registration Board at which they must select the Chairperson and Deputy Chairperson (clause 6.6) and appointing the Secretariat to support the Registration Board (clause 6.8).

To progress the appointment of suitable members, I would be grateful to receive the United Firefighters Union - Victorian Branch nominations for the two ordinary members and the senior retired professional career firefighter member, accompanied by each nominee's board resume and contact details. Should you have any queries or require any additional information, please contact Fire Rescue Victoria's contact officer for the establishment of the Victorian Professional Career Firefighters Registration Board, Assistant Chief Fire Officer Ed Starinskas, telephone: [omitted] or email: [omitted].

• [24] On 2 September 2021 the Interim Board held its first meeting and commenced issuing registration certificates. On 6 December 2021 the business name "Victorian Professional Career Firefighters Registration Board" was registered.[20]

• [25] The UFU submits that "[b]etween early December 2021 and March 2022 little progress was made towards the establishment of a permanent registration board as envisaged by the 2020 Agreement, and consequently, the UFU raised this dispute" (underlining added). There is limited material before the Commission about why the UFU considers the Interim Board arrangements to be insufficient and why there should be a permanent registration board, or even how a permanent board differs from an interim board. Ms Campanaro's witness statement sheds some light on these issues and the positions of the parties on the subject in October 2021. Her summary, which follows, is against the backdrop of "endorsement of the updated VPCFRB paper/schedule in August 2021":

"24. On 14 October 2021, I wrote to Deputy Commissioner Brendan Angwin and Deputy Secretary Kirstie Schroder on behalf of the UFU. In that correspondence, I sought the following:

a. An update on the progress of certification/registration of FRV operational members by the Interim Board;

b. Confirmation that the FRV agree that the Interim Board should operate independently from both the UFU and FRV.

c. Confirmation that despite being funded by the FRV, the Interim Board will maintain independence uncompromised by the funding.

d. Confirmation that the Interim Board has no relationship to the registration board that had been foreshadowed in the Fire Rescue Victoria Act 1958 (VIC)."[21]

• [26] Deputy Commissioner Angwin responded to Ms Campanaro's correspondence on 18 October 2021. Regarding Ms Campanaro's enquiry as to the progress toward implementation of the Victorian Professional Career Firefighter Registration Board he advised,

We have engaged the services of Wayne Carlson as the Implementation Director to enable the board to be established.

Wayne Carlson provided me with an update on activities currently underway.

• Establishing the VPCFRB as an independent legal entity.

• Sourcing suitable accommodation and resources for the functional implementation of the VPCFRB.

• Gathering and processing registration data for all FRV Firefighters to enable registration.

• Developing a process for the registration of Firefighters into VPCFRB that is expected to commence by the end of November.

• Working with FRV to establish seed funding to support the establishment of the VPCFRB

• • Scheduling of VPCFRB meetings to progress matters."[22]

• [27] The correspondence from DC Angwin then deals with four other matters raised by Ms Campanaro on behalf of the UFU: the independence of the Board, matters of funding, the Board's relationship with the statutory board, and "ownership" of the Board. DC Angwin's correspondence is somewhat difficult to read because of its formatting, so the following reproduces firstly the questions posed by Ms Campanaro and then, below his response,[23]

• Campanaro: "The UFU also seeks confirmation that FRV agree, as does the UFU, that the VPCFRB is an independent board operating independently of both UFU and FRV. We note that the Constitution of the Board (the board paper/schedule) includes FRV and UFU- appointed representatives however having such representatives is no different to any other board involving members/appointees - all Board members are independent to the organisation from which they come.

FRV agrees that the VPCFRV is an independent board operating independently of both FRV and UFU."

• Campanaro: "In addition to the above, the UFU seeks confirmation in relation to the VPCFRB's funding. Any such funding must be on a basis that does not compromise the VPCFRB's independence and, of course, we would assume that FRV has taken this into consideration, as has the UFU. The UFU seeks written confirmation that an organisation that merely provides funding in some form or another to the VPCFRB does do so on the basis of not compromising the VPCFRB's independence."

FRV agree that providing funding to VPCFRB does not compromise its independence."

• Campanaro: "It is noted, and I understand clearly understood, that this Registration Board, which has been created under the Enterprise Agreement (via Consultative Committee) to which UFU and FRV are parties, has the basis of federal legislation. As such, the VPCFRB has no relationship to the foreshadowed Board provided for in the Fire Rescue Victoria Act 1958 (Vic), which is prosecuted under state legislation.

The UFU seeks clear confirmation regarding the above. Of course, we would be surprised if there is any divergence of views, given this matter was extensively discussed prior to the establishment of the VPCFRB in accordance with the paper(s) submitted to the Consultative Committee."

FRV confirms that VPCFRB has no relationship to the foreshadowed board provided for in the FRV act 1958(VIC)."

• Campanaro: "Lastly, and to give effect to the above, the UFU will instruct its lawyers to draft a Statement of Intent with regards to the principles as prescribed, so that there is no misunderstanding as to the ownership of the VPCFRB (ie. that it is not owned by FRV or UFU - it is an independent body that merely gives effect to issuing the qualifications and registering personnel in accordance with the qualifications prescribed)."

FRV is willing to provide support, if required, to assist in this action"

• [28] What springs from this exchange is that the UFU was acutely concerned about the need for an ongoing board which operates separately and independently from the FRV, and that the FRV shared that view, communicating as such to the UFU. The last part of the reproduced exchange is particularly illuminating; the UFU and FRV agree that neither "own" the Board, which instead is to be an independent body, and that both agree its formation is to be guided by a Statement of Intent to be drafted by the union's lawyers.

• [29] The UFU argue that affirmative answers may be given to each of the questions for determination set out above. The FRV merely submitted it did not oppose affirmative answers to the questions and did not oppose the amendment made by the UFU to its draft order, handed up in the course of the hearing.[24]

• [30] Each of the Minister's five objections, if accepted, may lead to a finding against relief in the form sought by the UFU and I turn now to a consideration of each.

• [31] The primary position of the Minister was submitted to be that there is no extant dispute to be arbitrated based on a correct interpretation of the language of clauses 42 and 49.[25]

• [32] The first sentence of the registration board clauses was submitted by the Minister to be a statement of fact, which accordingly did not create obligations on either party or the basis for a dispute.[26] The only obligation created by the clauses was that FRV send a letter to the UFU secretary endorsing the establishment of a firefighters' registration board. It is not in dispute that such a letter was sent on 23 April 2021. Accordingly, the obligations imposed by clauses 42 and 49 had been discharged by FRV.[27]

• [33] The continuation of the dispute past the provision of this letter means that what is sought in relief is the imposition of "a new suite of obligations" on the FRV which are inconsistent with the terms of the Agreement, inconsistent with the no extra claims clause therein, and impermissible for the Commission to impose.[28]

• [34] The broader aspects of the dispute resolution procedure, clauses 21.13 and 21.14, cannot be used to impose new obligations in respect of subject matter which has already been concluded.[29] The FRV submitted that Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia is authority for this position, specifically standing for the fact that new obligations may be imposed under the clause which was at that time the equivalent of clause 21.1(3), but that this can only occur in circumstances where those obligations are truly new, either not dealt with in the Agreement, or dealt with to the extent that it is left to be determined in due course by the Commission.[30]

• [35] Further, the Minister in oral arguments submitted that, to the extent that the Commission might find that there was an obligation to actually establish a Fire Registration Board, this obligation had been discharged through the establishment of what has been referred to otherwise as the 'interim Fire Registration Board', with the fact that this board fell into abeyance irrelevant to this fact.[31]

• [36] It was submitted by the UFU that the submission no extant dispute remained entailed a misinterpretation of the clauses 42 and 29. These clauses are correctly understood as containing two elements: the endorsement by FRV of the establishment of a Fire Fighters Registration Board and the demonstration of that by a letter of endorsement to the UFU secretary.[32] To interpret the clause as pertaining only to the sending of the letter would be an interpretation "divorced from any industrial reality."[33] It is implicit in the endorsement of the registration board that there is an agreement it will exist and the dispute relates to the question of how it will be established. This is a permissible matter which has neither been foreclosed now resolved by the relevant clauses.[34]

• [37] The Minister's secondary argument, made in the alternative, is that clauses 42 and 49 of the Agreement do not pertain to the relationship between FRV and its employees, or FRV and the UFU, for the purposes of s.172 of the Act and accordingly have no effect pursuant to s.253 of the Act.[35] As clauses 42.1 and 49.1 of the Agreement concern an agreement between the FRV, a commercial third party, and the UFU, they do not concern the relationship between the employer as an employer and the employee organisation as representative of the employees covered by the Agreement. Accordingly, in line with s.739 of the Act and ss. 666 and 675 - 678 of the Explanatory Memorandum to the Fair Work Act 2009, they are properly understood as matters which do not pertain, and which the Commission may not exercise powers under s.739 of the Act to determine.[36]

• [38] In response to the submissions of the UFU that the execution of the Service Contract is properly understood, in accordance with Electrolux, as an "ancillary or machinery provision" to the resolution of an industrial dispute wherein the UFU is representing employee interests, the FRV submitted that this was a misinterpretation, and the execution of the Service Contract is correctly understood as "a substantive matter that is both discrete and significant" and accordingly is a matter which does not pertain.[37]

• [39] While the UFU submits that the question of whether the dispute is a matter pertaining need not be considered, as the establishment of the registration board is made express provision for in clause 42, they also submit that even if this were not the case the dispute would properly be found to be a matter pertaining to the employment relationship.[38]

• [40] Clause 21.1 of the dispute resolution clause is adequate and sufficient to sustain the dispute about the establishment of the Fire Fighters Registration Board as, to be covered by this clause, a matter only needs to be dealt with in the relevant division.[39] Arguments to the contrary raised by the Minister are based on a misconception of the dispute. The dispute is properly characterised as "about the establishment of a registration system for firefighters in the FRV."[40] On the basis that employees "have an interest in the workforce being properly qualified and skilled," to the extent which the registration scheme deals with that issue it is clearly a matter pertaining. [41]

• [41] Counsel submitted that the signature of the Service Contract is correctly understood as ancillary to the resolution of this dispute, and not the subject matter of this dispute itself. In support of this paragraph [97] of Electrolux[42] was cited and it was noted that,

"...the dispute could just as easily be resolved by setting up a registration board without contract, and that speaks to the correctness of the submission we put, that the substantive dispute is about a registration board being established. The machinery by which it is established is incidental and doesn't detract from the registration board being a matter pertaining."[43]

• [42] It is appropriate to determine the Extant Dispute and Matters Pertaining Objections together.

• [43] The Minister's Extant Dispute objection relies on a view that any dispute on the subject of the firefighters' registration board is confined to the things within the two clauses. If accepted, the Minister's submission on the Matters Pertaining issue would also lead to the Commission not accepting a dispute could be raised and agitated on the subject of the firefighters' registration board.

• [44] The Matters Pertaining argument entails a necessarily limited view of the subject matter of an enterprise agreement in general, and this one in particular, as well as of the disputes that may be raised under the agreement.

• [45] Enterprise agreements may properly deal with all matters pertaining to the employment relationship, as well as matters pertaining to the relationship between the employer and the union. In generality, matters pertaining are "matters which affect employers and employees in their capacity as such that 'pertain to the relations of employers and employees'".[44] For an agreement to be certifiable "it must be about matters pertaining to the requisite relationship or to "the relationship between employers and employees" in their capacity as such".[45] The terms of the agreement are to be about matters pertaining to the requisite relationship, or about matters ancillary or incidental to those matters, or machinery provisions with respect to those matters.[46]

• [46] In Re Application by Metropolitan Fire and Emergency Services Board Deputy President Gostencnik dealt with a number of objections to approval of an enterprise agreement. The objections included that particular terms of the agreement might impermissibly interfere with managerial prerogative and were "veto terms", giving the UFU "a power to simply cancel the progressing of decisions and actions of management".[47]It was argued that the veto terms could not constitute a matter pertaining to the employment relationship with the terms lacking "the necessary connection with the relationship between an employer in its capacity as an employer and an employee in his or her capacity as an employee in a way which is direct and not merely consequential".[48] The Deputy President summarised the objection by the Minister for Jobs and Industrial Relations thus,

"The veto terms pertain to a matter of a fundamentally different character. They do not operate to fix a particular term and condition of employment on the subject to which the term is directed. The terms are instead directed to the power to make a decision on the subject. As such, these terms are of a very different character and are not permitted matters.

The Minister contends that the veto terms go to the heart of the ability of the MFB to in truth be an employer and manage its business now and into the future. The veto terms also take the UFU well beyond its representative capacity and into a managerial capacity - at the managerial table. The presence of the UFU at the managerial table is not limited by way of discussion or consultation, but with a right of veto in respect of nearly all meaningful operational and managerial decisions that may otherwise have been made by the MFB. As such, these provisions do not pertain to the relationship between an employer and a union as described in s 172(1)(b). This is because the term must relate to the UFU's legitimate role in representing the employees to be covered by the Agreement. The Minister contends that the veto right terms give a role to the UFU in a managerial capacity, rather than a representative."[49] (references omitted)

• [47] In resolving the objection, the Deputy President considered at length the development of the "matters pertaining" formulation, both for the types of matter pertaining to the employment relationship and for those pertaining to the relationship between an employer and the employee organisation covered by an enterprise agreement, including matters dealt with in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth). He summarised his consideration as follows,

"It seems to me to be clear both from the terms of s 172(2)(b), and such exposition as the Explanatory Memorandum provides, that terms of an enterprise agreement which facilitate the capacity of an employee organisation covered by an agreement to represent its members who are covered by the agreement will pertain to the relationship between the employer and the employee organisation. It will only be in a case where there is clearly no nexus between a term of an agreement and the representative function of the employee organisation that the term will not pertain.

I also agree with the MFB that the Minister's characterisation that terms of an enterprise agreement which deny, or which operate to overturn, or which are otherwise antithetical to the employer holding and exercising a fundamental management function, necessarily do not pertain to the requisite relationship, should be rejected. This is because the characterisation invokes a binary approach that is inconsistent with modern authority about whether a term pertains to the requisite relationship.

As the decisions in Federated Clerks' Union of Australia v Victorian Employers' Federation and Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd make clear, an assessment whether a matter pertains is not to be conducted on the basis that there are mutually exclusive segments into which matters pertaining on the one hand and management or managerial decisions on the other can separately be assigned. The issue is whether a matter pertains to the employment relationship. A matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment. If a matter pertains, then the fact that it also intrudes upon managerial prerogative does not change its character.

I do not accept that the impugned terms of the Agreement do not directly affect the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment. Once it is understood that managerial prerogative and the requisite relationship are not consigned to mutually exclusive segments, it is difficult to conclude that the impugned terms, which are said to be "veto powers" and which on their face appear also to directly affect conditions of employment of the employees covered by the Agreement as just described, do not then directly affect the relationship between the MFB and the UFU in its capacity of representing its members."[50] (references omitted)

• [48] In finality the Deputy President concluded,

"The question remains whether the provision can be characterised as pertaining to the relationships between the MFB and its employees or between the MFB and the UFU as an organisation representing its members covered by the Agreement. A term of an enterprise agreement will be so characterised if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting their employment, or the capacity of the UFU to represent its members in respect of such matters."[51]

• [49] Application of these principles leads to the conclusion that the firefighters' registration board provision is a matter pertaining.

• [50] The first sentence of each term is a commitment given by the FRV at the time the 2020 Agreement was made. In simple terms, that commitment is open support by the FRV of establishment of a firefighters' registration board; although the questions of who establishes it and for what purpose are not dealt with by the sentence.

• [51] While there could be many forms for a firefighters' registration board, there is nothing about its most basic form that could be said to be beyond a matter pertaining. At its most elemental such a board would likely keep a register of the names and qualifications of registered firefighters and perhaps stipulate minimum requirements for registration. None of those things would on their face be beyond a matter permitted. Very clearly, the keeping of records relating to qualifications achieved, and their sufficiency to work as a professional firefighter, are things which could affect firefighters' conditions of employment including "all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting" employment.[52] The same may be said of endeavours by a registration board to stipulate the minimum requirements for registration.

• [52] The second sentence of each term requires something to be done prospectively by the FRV, namely, to demonstrate its endorsement of the board through a letter to the UFU Secretary. That obligation is also a matter pertaining, in the sense of it being pertinent to the relationship between the FRV and the UFU, since it will allow the UFU to represent its members in relation to matters associated with their registration. The union is entitled to know in its representation of its members whether the FRV supports the formation of the firefighters' registration board and any conditions that the FRV may seek to place on its formation.

• [53] It is appropriate at this juncture to return to the Extant Dispute objection. In short, the objection is made for the reasons summarised above. The first sentence of the firefighters' registration board terms is a statement of fact - that the FRV endorses the establishment of a firefighters' registration board - with the being no further work to be done for compliance beyond the sending the letter to the UFU Secretary. It is then argued that the present dispute, such as it is, seeks to impose new obligations on the FRV.

• [54] There is little question that the dispute as presently characterised goes to matters pertaining to the employment relationship or the relationship between the union and the employer, being the FRV. There is a genuine impasse between the parties about the form of the board and how they may each influence's operations and functioning, within the context of its independent operation, and arms-length from either the FRV or the UFU.

• [55] The Minister argues that the capacity for the Commission to arbitrate this matter is limited, especially when regard is had to s.595 of the FW Act and the 2020 Agreement's "No Extra Claims" provision,

"28. The functions of the Commission are prescribed by the FW Act. The only relevant function that arises is "dealing with disputes as referred to in section 595". Section 595 empowers the Commission to deal with a dispute: (i) by arbitration (including by making any orders it considers appropriate) if it is expressly authorised to do so under or in accordance with another provision of the Fair Work Act; or (ii) other than by arbitration as it considers appropriate, including by mediation or conciliation or by making a recommendation or expressing an opinion.

29. However, the Commission's power to deal with the dispute does not extend to the variation of the FRV Interim Agreement to impose some additional obligation on FRV to require it to enter into the Proposed Service Agreement. The relief sought by the UFU illustrates the point. Here, what is sought is to impose a potentially indefinite suite of obligations on FRV limiting its ability to engage with a commercial third-party, impacting upon its ability to employ and potentially promote persons within FRV, impacting upon its ability to consult with and resolve disputes with a commercial third-party and which would appear to involve a significant and ongoing financial commitment that FRV would be unable to bring to an end without the agreement of the UFU.

30. Whether the "matter" of establishing a firefighters registration board pertains to the relationship between FRV and its employees, the relationship between FRV and the UFU, could be said to arise under "this Division" or relate to an express provision made in "this Division",10 this subject matter is comprehensively dealt with for the purposes of the Agreement by clauses 42 and clause 49. Those clauses exhaust that subject since no other clause adds anything further, an outcome confirmed by clause 29 of Division A and clause 34 of Division B of the Agreement each of which stipulate in identical terms that:

31. The FWC may not through an exercise of arbitral power make a decision that is inconsistent with clauses 42 and 49. Doing so is precluded by section 739(5) of the FW Act. Requiring FRV to take additional, quite particular, steps about a firefighters' registration board beyond the endorsement steps prescribed by the Agreement would not accord with what is stipulated and would amount to an extra claim on the same subject, enlivening section 739(5).

32. The power to deal with the variation of enterprise agreements is dealt with exhaustively in Div 7 of Part 2-4 under the FW Act (rather than in the Parts of the FW Act which deal with the Commission's dispute resolution power more generally). Within Div 7 of Part 2-4, there are three types of applications which could be made to the Commission to vary the Interim Enterprise Agreement, none of which permit the Commission to order variation in the arbitration of a dispute."[53]

• [56] The proposition that the subject matter of a firefighters' registration board could be determined simply through giving of a public commitment and the sending the letter, while attractive, pays insufficient attention both to the subject matter of the clause and the relationship of those covered by the 2020 Agreement.

• [57] As may be seen by from the material filed in this dispute, and the FRV Act, there could be a myriad of possibilities for the form and functions of a firefighters' registration board. It is unlikely that any party could have contemplated that design and implementation of the board could be resolved quickly or without initial disagreement. I do not agree that within this context either the dispute resolution procedure, the no extra claims clause, or the firefighters' registration board terms are to be construed as preventing disputes from being raised, agitated, and resolved in relation to the mechanics associated with formation of the firefighters' registration board.

• [58] As a consequence, I do not uphold either the Extant Dispute or Matters Pertaining objections.

• [59] The Minister argued in initial oral submissions that the arrangement for a registration board to remain in place in perpetuity until the UFU permits the FRV to terminate it is necessarily a significant fetter on the capacity of FRV to exercise the powers which it is granted under the FRV Act in respect of the employment of firefighters.[54]

• [60] In response to the UFU's proposed alteration to the services agreement, tendered to the Commission on the second day of hearing, which responded to this concern by providing that the length of the contract would be for the life of the 2020 Agreement, the Minister submitted that this did not resolve the concern. This was due to uncertainty as to when the 2020 Agreement would end, and the possibility of developments which might occur in that time, specifically in respect of the statutory Fire Registration board, which had the potential to give rise to an unworkable situation.[55]

• [61] The Minister also submitted that the Service Contract, and potentially the Board Constitution to the extent it was incorporated and imposed obligations on the Contractual Registration Board, would impose a fetter on FRV's power under s.25B of the FRV Act and, on this basis should be found ultra vires and void.[56]

• [62] The UFU submitted that the concerns raised by the Minister regarding the fettering of the power of the FRV were not substantiated.

• [63] In support of this position, the UFU noted that the submissions of the Minister appeared to presuppose that any fetter on the power of the FRV was impermissible and submitted this was a principle which did not reflect the relevant authority on the issue.[57] The relevant analysis is instead of the extent to which a power is fettered.[58]

• [64] The UFU submitted that the FRV's entry into the Service Contract did not entail a fetter on the FRV's powers which went beyond the permissible extent. The 'fetters' pointed to by the Minister were all matters which had been agreed to by the FRV; fell within the powers of the FRV for carrying on of its functions; and had already been imposed by virtue of formation of the 2020 Agreement.[59]

• [65] The Fettering Objection relies on the potential for orders of the Commission, or things done within the Service Contract, to impinge on the functioning of the FRV, being established by, and an emanation of, the State. The Minister initially argued about the board as proposed "that this arrangement is to remain in place in perpetuity unless and until FRV is given permission from the UFU to terminate it, we would submit there is necessarily a very significant fetter on the capacity of FRV to exercise its powers in respect of the employment of firefighters in the State of Victoria", however later submitted that the UFU's concession that the board should only continue for the duration of the 2020 Agreement "addresses part of the problem associated with the UFU being involved in any decision to terminate the agreement, it doesn't remove the entirety of the problem".[60] By way of illustration about the greater effects of the fettering which concerned the Minister it was submitted,

"44. The term contained in the Proposed Service Contract, by which FRV would be agreeing with the UFU not to employ any external professional career firefighter not registered by the Corporate Registration Board is already an obvious fetter on FRV's power under s 25B to employ and is ultra vires and void.

45. Further whilst the opaque nature of the Proposed Service Agreement and its interaction with the Board Constitution leaves the matter unclear there would appear to be a real potential for the Proposed Service Agreement to place a further fetter on FRV's powers to determine whether a person is suitable for employment or promotion by FRV. To the extent the Board Constitution imposes obligations on the Contractual Registration Board which are implied into the Proposed Service Agreement, they too would be ultra vires and void."

• [66] The Minister referred the Commission to s.25B(1) of the FRV Act which reserves the right of basic decisions about employment to the FRV. The section provides, so far as is relevant,

(a) employ any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act; and

(b) transfer, promote, suspend or remove any employee."

• [67] The Minister's submissions on the subject of s.25B included,

"43. FRV has general powers under ss 7(2) and 25A(1) of the FRV Act and specific powers to enter into agreements under ss 25A(2)(a) and (b). However, each of these powers is subject to an implied limitation, derived from numerous features of the Act, that prevents them from being exercised in a manner that would fetter FRV's power under s 25B to:

(a) determine whether a person is suitable for employment by FRV;

(b) promote an employee; and suspend or remove an employee.

44. The term contained in the Proposed Service Contract, by which FRV would be agreeing with the UFU not to employ any external professional career firefighter not registered by the Corporate Registration Board is already an obvious fetter on FRV's power under s 25B to employ and is ultra vires and void.

45. Further whilst the opaque nature of the Proposed Service Agreement and its interaction with the Board Constitution leaves the matter unclear there would appear to be a real potential for the Proposed Service Agreement to place a further fetter on FRV's powers to determine whether a person is suitable for employment or promotion by FRV. To the extent the Board Constitution imposes obligations on the Contractual Registration Board which are implied into the Proposed Service Agreement, they too would be ultra vires and void."[61]

• [68] The 2020 Agreement makes various provisions about firefighter recruitment and employment, including the engagement of trainee firefighters, the inclusion of minimum crewing arrangements, and specification of classification descriptors. It also prescribes certain, but not all, training requirements. These commitments, of course, are within the context of an enterprise agreement originally made with the FRV and its employees (noting that the 2020 Agreement is in most part a transferable instrument). Being an agreement applicable to a Victorian Government agency, the precursor even to the making the agreement by the FRV is that the agency has been authorised to make the agreement after scrutiny of its contents within Government. The FRV came to these commitments of its own will as a product of bargaining. It may be presumed that the FRV was prepared to agree to these things and saw no impediment to do so after considering its managerial discretions and legislative environment. Standing in contrast to these matters are those potentially stemming from the Corporate Board.

• [69] The governance of the Corporate Board includes the board itself, comprising a Chair and other directors. According to the Corporate Board's Constitution, decisions about qualifications of firefighters are a combination of initial prescription (being things set out in the Constitution) and determination by the Board, including for reason of the initial prescriptions being superseded. The Corporate Board's Constitution provides about registration,

"17.1 Qualification for Registered Victorian Professional Career Firefighters

(a) In order to be registered with the VPCFRB, professional career firefighters must be:

(i) Hold the qualifications, skills and experience listed in this clause, appropriate for their qualification or deemed equivalent by the VPCFRB; and

(ii) Employed by Fire Rescue Victoria or another fire service as approved by the VPCFRB.

(b) The training and qualifications framework for professional career firefighter requires prerequisite pathways and minimum times at ranks to ensure experience is gained and skills are developed and consolidated, so that emergencies can be mitigated safely, and both public and firefighter safety ensured."[62] (underlining added)

• [70] The Service Contract is in similar terms as well as making the following provision about registration standards, which extend to those who may be qualified for secondment to the CFA (noting that the reference in the passage below to the Operational Agreement is a reference to the 2020 Agreement or its replacement),

3. The qualifications, competencies and operational experience, as specified by the Operational Agreement and the agreed training framework, are the standards required for registration as a professional career firefighter.

4. External professional career firefighters seeking to be an officer or employee of Fire Rescue Victoria, including for the purpose of being made available on secondment to CFA or other agencies by agreement of the Board, must first seek registration with the Registration Board. They must have as a minimum, the qualifications, competencies and operational experience as specified by the Operational Agreement and the agreed training framework."[63]

• [71] The Corporate Board's Constitution specifies in Clause 17 that there will be six registration categories: Firefighter (which includes Firefighter 1 to Leading Firefighter), Officer (which includes Station Officer and Senior Station Officer), Commander, Assistant Chief Fire Officer, Fire Service Communication Controller, and "Other Classifications". Each registration category specifies the criteria for registration, with me extracting only the "Firefighter" category for the purposes of illustration,

"FIREFIGHTER: Completion of PUA20613 Certificate II in Public Safety (Firefighting and Emergency Operations) and partial completion of PUA30613 Certificate III in Public Safety (Firefighting and Emergency Operations) or its equivalent superseded qualifications.

Note: On completion of recruit training recruits are promoted to the rank of Firefighter 1. Promotion to Firefighter 2 is gained after 12 months career professional service on shift and Firefighter 3 after 24 months career professional service on shift and the completion of continuation training at the level of Firefighter 2."[64]

• [72] The Corporate Board's Constitution states about the "Other Classifications" category,

"OTHER CLASSIFICATIONS: This category covers professional career firefighters for operational ranked classifications not listed in Categories 1 - 5 as agreed by the VPCFRB through consultation in accordance with the Fire Rescue Victoria and United Firefighters Union Operational Staff Agreement."[65]

• [73] The Corporate Board's Constitution Clause 18 (Registration Provision) appears to provide transitional registration arrangements for already employed firefighters, with a reference to "Professional career firefighters (previously with MFESB and CFA) employed by Fire Rescue Victoria". However, the intent of the clause and its interaction with Clause 17 are not clear. If it is intended as a transitional registration provision it highlights the possibility that the provisions of Clause 17 may have the intention of developing greater than existing registration requirements.

• [74] Consideration of these matters leads to the conclusion that the Minister may well be correct in the assertion that, as presently designed, the Service Contract, and behind it the Corporate Board, will be a fetter on the FRV's powers of determination about employment of "any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act".

• [75] Once implemented, the Corporate Board would be the entity that not only registers firefighters, compiling a list of those registered and the qualifications, but actually determines the qualifications that firefighters should hold. There appears to be no requirement that the board should or must register all existing professional firefighters, or that it will provide recognition of those registered or employed as professional firefighters in other Australian fire services. There are no apparent contractual constitutional constraints on the Corporate Board about who must be registered or not, or even that determinations must be made in such a way as to avoid inappropriate or unlawful matters of discrimination. That is not to say that the Corporate Board may do such things, merely that there appears to be no constraint against doing so.

• [76] When these matters are considered, the problems identified by the Minister crystallise.

• [77] The Corporate Board may not immediately act in such way as to set the FRV in a direction contrary to s.25B of the FRV Act, or even inevitably do so. Rather, the proposition is that the Corporate Board could move to do such things with its constitution and the Service Contract as drafted and signed by the FRV not plainly preventing such things. Although Schedule 4 to the Service Contract refers to a condition of registration as holding "as a minimum, the qualifications, competencies and operational experience as specified by the [2020 Agreement] and the agreed training framework" it still potentially takes the determination of employment away from the FRV, and even away from the 2020 Agreement.

• [78] Such eventualities would plainly be determinations or decisions by the Corporate Board and not controlled by the FRV, with it not having a majority of members of the Corporate Board. If they came about, it would be difficult to see how their occurrence was consistent with the FRV's legislated entitlement/freedom to "employ any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act".

• [79] As drafted, the Corporate Board Constitution and the Service Contract do not appear to be consistent with s.25B and as such amount to a fettering of the FRV's functions. It would be inappropriate for the Commission to determine such a situation through this arbitration. It follows from the above that the fettering objection must be upheld, with the consequence that the Commission must also decline to provide the relief sought by the FRV.

• [80] This is not to say that either the Corporate Board or the Service Contract cannot be drafted in such a way as not to fetter the FRV's legislative right in relation to whom it employs.

• [81] Counsel for the Minister noted that the Minister had formally indicated she believes her consent is required under s.25A of the FRV Act for the FRV to enter into the Service Contract and that she refuses this consent. On this basis it was submitted that the Commission should not, pursuant to s.739, order the FRV to enter into the Service Contract as to do so would be to require the FRV to act inconsistently with the FRV Act.[66]

• [82] The Minister argues that relief should not be granted in any form that orders the FRV to enter into the Service Contract since to do so would be contrary to her direction to the FRV and thus a direction to act inconsistently with the FRV Act. The UFU argues to the contrary, submitting that the Minister's argument that her consent is required for entering into the Service Contract is untenable (noting that references in the below extract to the VCPFRB are references to the Corporate Board),

"70. In its oral submission, at PN624, the Minister contends that FRV requires ministerial consent on two bases:

a. First, the Minister submits that ministerial consent is required under s.25A(3)(a), because the Minister asserts that by entering into the Proposed Services Contract the FRV is entering into an agreement or arrangement for the provision of services by FRV;

b. Second, the Minister submits that the FRV requires Ministerial consent pursuant to s.25A(3)(b) before it 'participated in the formation' of a body corporate, namely the VCPFRB.

72. Dealing with the first, the Minister points at PN627-PN630 to the requirement under Schedule 1, Item 5 of the Proposed Services Contract, which is a requirement that FRV provide the VPCFRB with lists of firefighters it employs. She then submits that that is a requirement in the Proposed Services Contract for FRV to provide services to VPCFRB. That submission is plainly wrong.

73. In the first place, the Minister fails to have regard to the terms of s.25A(2)(b), and whether the Proposed Services Contract can sensibly be characterised as an agreement for the provision of services by FRV. It is submitted that on any fair reading of that contract it cannot; its clear purpose and intent is for the VPCFRB to provide services to FRV. It is VPCFRB that is getting paid for its services.

74. Nextly, the provision of information by a client to a service provider, in order to facilitate the procurement of their services, is not of itself an agreement to provide services. This is supported by the lack of consideration provided by the service provider for those purported 'services'. Item 5 is a classic example; in order to apply the registration process VPCFRB necessarily needs to know who the firefighters are that are to be assessed and registered.

75. In oral submissions at PN286, the UFU provided the Commission with the example of an accountant, who requires certain information from a client in order to provide the services of preparing financial accounts. A further example would be a patient/doctor relationship where the patient provides the doctor with an X-Ray so that the doctor can provide them with medical services. These examples demonstrate the absurdity of the Minister's position, which should be rejected."[67]

• [83] The Minister's Consent Objection in the context of this arbitration is primarily a matter between the Minister and an agency reporting to that Minister. The Minister's withholding of consent for the FRV to enter into the Service Contract with the Corporate Board is for the reasons summarised above. However, it is not known if consent could be achieved with a different set of board constitutional and contractual arrangements or what degree of change, if any, would be sufficient to elicit the Minister's consent. Whether or how the agency proposes to respond to the Minister's objections, or whether the FRV Commissioner see the Minister's objection in quite the same light as advanced in these proceedings may well be interesting questions. However, this matter does not turn on those views or relationships. While it is not necessary to determine the Consent Objection in the context of my finding that the fettering objection is upheld, it is not inconceivable changes could be made that did not fetter the FRV in the manner described or provoke the Minister's public withholding of consent for the arrangements. Whether and how consent could be provided should be matters for the FRV and the Minister to explore in the first instance.

• [84] Counsel for the Minister further submitted that the Minister had raised a number of substantive concerns regarding the Service Contract which should be given significant weight by the Commission in determining the dispute.[68] These concerns are extracted below:

"(a) Deficiencies remain in the transparency and oversight of the Corporate Board's functions under the Proposed Services Agreement that would not advance the purpose or functions of the FRV Act or the government's fire and emergency services priorities. The Proposed Services Agreement does not make provision for regulatory oversight adopted by registration bodies subject to Victorian legislation and therefore would not meet public expectations.

(b) The Corporate Board will not be a public entity and therefore would not be subject to accepted public sector requirements such as complying with the Freedom of Information Act 1982 (Vic) and administrative law principles such as procedural fairness and judicial review. There would be limited ability for government to oversee the administration of the Corporate Board's performance of its obligations under the Services Agreement, notwithstanding that it will regulate public sector employees. The lack of regulatory oversight and transparency in the governance and scope of the activities to be undertaken by the Corporate Board pursuant to the Proposed Services Agreement raise significant public interest risks.

(c) Any obligation on the Corporate Board to comply with public law principles, such as information privacy principles, would only arise due to contractual provisions in the Proposed Services Agreement which could be amended.

(d) The Proposed Services Agreement could impermissibly fetter FRV's employment powers contained in section 25B of the Act. Even if the fettering were lawful, it would be inappropriate for a body that sits outside the public sector to maintain a Register of FRV employees in circumstances where the Register might be used to limit the manner in which FRV exercises its power of employment.

(e) The potential for duplication between the functions to be performed under the Proposed Services Agreement and those to be performed by the Board established by section 149 of the FRV Act (Statutory Board) may create confusion and undermine the legislative objectives of the Statutory Board.

(f) The costs associated with the operation of the Corporate Board under the Proposed Services Agreement will be borne by the Victorian Government. The Proposed Services Agreement fails to meet public expectations in ensuring transparency in meeting financial reporting obligations designed to prevent fraud and corruption and ensure accountability and transparency in the administration of public funds."[69]

• [85] Grounds (a), (b), (c) and (f) deal with matters of the Corporate Board's governance. Ground (d) overlaps with the Fettering Objection, and Ground (e) expresses concern about the potential for duplication of effort with the Statutory Board.

• [86] In their oral submissions, the UFU argued that the deficiencies identified by the Minister in the Service Contract fail to have regard "to the specific provisions which are already contained within the service contract which has been negotiated with FRV and which FRV has proposed in order to deal with the very matters that the Minister now complains of."[70]

• [87] The UFU noted that the Service Contract was created at the request of the FRV with the purpose of addressing the key risks which the FRV is required to manage pursuant to legislative and insurance obligations.[71] They stated that the contract is,

"... essentially in the same form as the FRV would use for any supplier of service, whether it be for a short term for a long term or for a very long term. And it is designed and presumably approved by the government for some level as being satisfactory to satisfy the regulatory obligations on FRV."[72]

• [88] The Service Contract content objections were touched on briefly in the Minister's written submissions and less so in oral submissions. The UFU went on to note clauses within the Service Contract which, on its submission, resolved a number of the concerns raised by the Minister. These are summarised as follows:

• • Clause 7.5.1, which obliges the VPCFRB to cooperate with and assist FRV in connection with any enquiry or investigation by an Authority resolves the ground (a) concern regarding regulatory oversight.[73]

Clause 3.4, which imposes a duty to cooperate with the FRV on the VPCFRB for the purpose of compliance with regulatory requirements or obligations, and clause 7.5.2 which obliges the VPCFRB to cooperate with and assist FRV in connection with any requests to the FRV about or relating to the Service Contract under the Freedom of Information Act 1982 (Vic), resolve the ground (b) concern regarding lack of regulatory oversight and transparency.[74]

• • Clause 8.1, which obliges the VPCRFM to securely maintain complete and accurates records, clause 9, which obliges the VPCFRB to keep confidential information confidential, and clause 10, which binds the VPCFRB to the Information Privacy Principles, resolve the ground (c) concern regarding compliance with the Information Privacy Principles.[75]

• • Clause 7.5.1, noted already in relation to ground (a), and clause 8.2, obliges the VPCFRB to allow FRV and its representatives access to the VPCFRB's premises, facilities, systems and any information or documentation in its possession or control which is connected to the services it provides (including any records) for the purpose of FRV performing an audit, resolve the ground (f) concern regarding financial reporting obligations and accountability and transparency regarding public funds.[76]

• [89] In relation to ground (d), which overlaps with the fettering objection, the UFU reiterated its submissions on this issue, noted at [62] - [64] above.[77]

• [90] In relation to ground (e), which expresses concern about the potential for duplication of effort with the Statutory Board, the UFU firstly submitted that the statutory board was not in operation, with no evidence tendered about steps taken to operationalise the board or details of how it will function if operationalised. Secondly, they noted that the Statutory Board as contemplated by s.149 of the FRV Act is necessarily limited and demonstrably narrower than the ambit of the VPCFRB. Thirdly, as no evidence had been tendered of the potential for conflict the submissions were fundamentally hypothetical. The potential for possible future expansion of the Statutory Board and issues which might arise as a result of this, raised in the oral submissions for the Minister, was also rejected by the UFU as entirely speculative and accordingly without substance.[78]

• [91] The governance grounds relied upon by the Minister, and set out above, are no doubt real. However, there is insufficient material before me to lead to a finding that for those reasons alone the relief sought by the UFU could not be granted. If they are matters about which she is concerned, and the FRV is in turn concerned, they should be capable of resolution. The fact that the design of the Corporate Board to date has not sufficiently addressed the matters about which the Minister expresses concern does not mean that the board's design cannot be moved to address the concerns. It must be said though that the public sector regularly enters into service contracts and the governance matters she raises are not novel, likely even within FRV let alone the wider Victorian public sector, and it would be straining credulity for it to be suggested that the Minister's identified concerns have not already been addressed in other template contractual arrangements, or cannot be so.

• [92] The ground dealing with duplication of function between the Corporate Board and the Statutory Board would have some merit were it not for the fact that the Statutory Board has the extremely limited functions of registering "officers and employees of Fire Rescue Victoria proposed to be made available to the Country Fire Authority under a secondment agreement" and "other persons who wish to be employed by Fire Rescue Victoria in order to be made available to the Country Fire Authority under a secondment agreement".[79] There is no evidence before me as to the actual duplication about which the Minister is concerned, and so I do not find the asserted duplication to be credible.

• [93] While it is not necessary for me to formally determine the Service Contract Content Objection, the material before me on the subject would incline me not to uphold it.

• [94] Consideration of each of the Minister's objections, the case put forward by the UFU and the position expressed by the FRV leads to the following conclusions, relevant to the overall disposition of the dispute presently before me:

• When Deputy Commissioner Angwin wrote to the UFU on 18 October 2021 there was apparent consensus between the parties about several matters.

• Despite this, not all matters were agreed between the UFU and FRV which led to the lodgement by the union of the dispute application now before me on 29 March 2022.

• Conciliation after lodgement of the dispute application expanded the agreed matters but did not entirely resolve the dispute.

• Having heard the Minister's objections to the matters before the Commission, and for the reasons stated above, I do not uphold either the Extant Dispute or Matters Pertaining Objections, and do not determine either the Ministerial Consent or the Concerns Objection. However, the Fettering Objection should be upheld.

• The relief sought by the Applicant is set out above, with the FRV not opposing it.

• The finding that the Fettering Objection should be upheld is on the basis that the Service Contract as drafted has the potential to conflict with the FRV's legislated function (see FRV Act s.25B (1)) since the Corporate Board may potentially set the qualifications of the firefighters it registers and thereby the firefighters the FRV may engage. However, that is not to say that the Service Contract is incapable of being drafted in such a way that the conflict is removed.

• The significance of the withholding of Ministerial consent for the FRV to enter into the Service Contract is not a matter properly to be determined through this decision and nor is it necessary to do so.

• [95] It will be apparent from the above considerations that it is not inconceivable that a firefighters' registration board can be established at arms-length to the FRV and UFU, but that it may not be done in the way presently envisaged.

• [96] Deputy Commissioner Angwin's October 2021 commitments, freely and openly given, should be regarded, including by the Minister, as a binding set of obligations on the FRV. To do otherwise would be a repudiation both by the FRV and its responsible Minister of the commitments given in the 2020 Agreement: that the FRV endorses the establishment of a firefighters' registration board and that disputes about the employment relationship and the relationship between the FRV and the UFU may be resolved through the process as defined in the agreement, including through reference of matters to the Commission for conciliation and arbitration. The commitments given by Deputy Commissioner Angwin are not in conflict with the FRV Act's s25B which reserves to the FRV decisions to "employ any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act".

• [97] Taking those commitments forward and implementing them in such a way as to not fetter the operation of the FRV's legislative remit is not impossible, just a task that should be free from overreach by either the UFU, or the FRV or, for that matter, it's Minister.

• [98] Since the Fettering Objection has been upheld it is not necessary to conclude the questions posed by the UFU for determination by the Commission. If such were necessary, I would answer them through the prism of the commitments given by DC Angwin on behalf of the FRV; principally that the registration board should be an "independent board operating independently of both FRV and UFU", giving "effect to issuing the qualifications and registering personnel in accordance with the qualifications prescribed". Each may be answered within that context in the affirmative.

• [99] The commitments given by the FRV plainly place the registration board, however established and constituted, outside of the entity which is Fire Rescue Victoria. Senior Counsel for the FRV submitted that the relief sought by the UFU involved matters permitted and that the FRV did not oppose either affirmative answers to the questions or for the Order as amended to be granted.[80] Those matters in turn lead me to accept that an order of some type may be granted in the event the question of fettering is overcome.

• [100] Even so, the matter of an order and its content should not be developed further at this time. Mr Borenstein advocated that an order of the type he put forward could be made, relying on reasoning of the Full Bench Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (Victorian Branch)[81] and the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[82] Mr O'Grady advocated the contrary, submitting that "based upon the MFB decision, that a third party, i.e., the company here in question, can't be the subject of a dispute resolution procedure, or can't be the subject of an order".[83]

• [101] The matter of any order and its jurisdictional base will likely turn on what is sought after the appropriate changes of structure, form, and governance have been considered.

• [102] In conclusion, and since the Minister's Fettering Objection is upheld, the application before the Commission is dismissed.

[1] 2020 Agreement, Division A, Clause 42,Division B, Clause 49.

[2] [2022] FWC 2708.

[6] Transcript, PN449; Exhibit UFU1, Outline of Submissions[31], Digital Hearing Book (DHB) 29.

[7] Transcript, PN439; Exhibit UFU1, Outline of Submissions[26], DHB 28.

[8] Transcript, PN443; Exhibit UFU1, Outline of Submissions [29], DHB 28.

[9] Transcript, PN446; Exhibit UFU1, Outline of Submissions [30], DHB 28.

[10] Exhibit UFU1, Outline of Submissions [40] - [42, DHB 30.

[14] Exhibit FRV1, Statement of David Catanese with Attachment, DHB130 - 134.

[19] Exhibit UFU4, Witness Statement of Laura Campanaro [17] - [20], DHB 33; Exhibit UFU4, Attachment LC - 2, DHB 46.

[20] Exhibit UFU1, UFU Outline of Submissions [13] - [15], DHB 26.

[21] Exhibit UFU4, Attachment LC - 5 [34], DHB.52.

[22] Exhibit UFU4, Attachment LC - 6, DHB 54 - 56.

[23] Ibid; Exhibit UFU4, Attachment LC - 5, DHB 52.

[25] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022, [33].

[27] Ibid [24] - [25]; Transcript, PN191.

[28] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022, [30] - [31]; Transcript PN191.

[30] [2012] FWAFB 9555, [22] - [25]; Transcript, PN568.

[35] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022, [33], [35].

[36] Ibid [36] - [39]; Transcript, PN591.

[37] Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309, [97]; Transcript, PN126 - PN134 and PN277.

[44] Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 2004 221 CLR 309 (2004) 133 IR 49, [9] per Gleeson CJ.

[47] [2019] FWC 106, (2019) 284 IR 239, [306].

[53] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022,

[56] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022, [44] - [45].

[57] UFU Submissions in Reply Dated 26/09/2022, [89].

[61] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022,

[62] Exhibit UFU4, Attachment LC-9, DHB 83-84.

[63] Exhibit UFU4, Service Contract, Schedule 4 (The Registration System), DHB 124.

[64] Exhibit UFU4, Attachment LC-9, DHB 84.

[65] Exhibit UFU4, Attachment LC-9, DHB 86.

[66] Exhibit Minister1, Outline of Submissions of Mr O'Grady (on Behalf of the Minister for Emergency Services) Dated 22/08/2022, [46], [48].

[67] UFU Submissions in Reply Dated 26/09/2022.

[78] Ibid, [110] (e), [102]-[109].

[81] [2012] FWAFB 9555, [20] - 25], [43] - [47].

[82] [1998] HCA 28, 194 CLR 355.

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