United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198

United Firefighters� Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (3 September 2025)

United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 | Case summary | Zoe

[27]

[18] The ATC policy was due to expire on 1 November 2022. In September 2022, the UFU decided it did not want to continue with the ATC policy and instead to look for a new provider. On 26 October 2022, the UFU presented a recommendation to the Consultation Committee for the ATC policy to be extended to 1 January 2023 to give it time to find a replacement provider. This recommendation was endorsed by the Consultation Committee.

[19] On 27 October 2022, Peter Marshall, the branch secretary of the UFU, and Laura Campanaro, an industrial officer for the UFU, met with Craig Harms of Howden Insurance Brokers (Australia) Pty Ltd (Howden). They discussed the possibility of Howden putting in place an 'alternative risk scheme' by means of a discretionary trust. As described by Mr Harms in evidence given by him, an alternative risk scheme involves the use of a discretionary trust to cover certain risks, with the trustee making payments if the risks eventuate. Claims are usually paid out from available trust funds up to a limit, with an insurance policy being taken out to cover risks beyond that limit. Because the insurance policy only covers the residual risk above this limit, it is cheaper than traditional insurance policies which cover all the risk. Mr Harms recommended that the UFU enter into an alternative risk scheme to be provided by Howden.

[20] Mr Marshall subsequently acted on Mr Harms' recommendation and selected Howden to be the new provider. Mr Harms instructed Howden's lawyers to prepare a standard trust deed. Mr Marshall and Ms Campanaro informed Kirstie Schroder, FRV's deputy secretary, and Martin Braid, FRV's deputy commissioner, of their intention that a new arrangement be put in place involving the use of a trust, with the premium being the same as for the ATC policy but with enhanced benefits such as health insurance cover. The name 'Howden' was not mentioned at this stage. Ms Schroder and Mr Braid, according to Ms Campanaro's evidence, did not object.

[21] On 21 December 2022, Mr Marshall presented a one-page proposal to the Consultation Committee. The FRV representatives at this meeting were Mr Braid, Nick Koletsis, Ed Starinskas and Mark Kennedy. After a short recital of the relevant provisions of the Agreement and the Reimbursement Order, the substantive content of the proposal was as follows:

[40]

[31] To enable this assessment, Mr Matthews requested:

a copy of the trust deed for the Discretionary Trust;

the financial statements for the Discretionary Trust since the Discretionary Trust was established;

to the extent not shown in the financial statements, details of []:

○ the total membership contributions by members since the Discretionary Trust was established;

○ the allocation of membership contributions by the Discretionary Trust, for example, between:

any third party policies of insurance;

discretionary payments by the trust;

investments by the Discretionary Trust;

trustee and management fees; and

other costs and expenses;

○ the categories of insurance obtained by the Discretionary Trust (and the allocation of member contributions to them);

○ actuarial reports (including those undertaken and procured by Howden Insurance Brokers (Australia) Pty Ltd) that set out the allocation of policy premiums to categories of insurance (and any other member benefits);

○ the terms on which the Discretionary Trust exercises its discretion with regard to claims by members and the nature of the coverage offered (for example, whether this applies to income protection or other types of insurance);

whether there are any policies of insurance obtained by the Discretionary Trust other than the Group Personal Accident Policy with Arch.

[32] The evidence does not establish that Mr Marshall ever provided a written response to Mr Matthews' request. However, in November 2023, the UFU did provide a copy of the Deed to FRV's tax advisors on a confidential basis. It also appears that some further information was provided to FRV, but the extent of this and the means by which it was done are unclear.

[33] On 1 May 2024, the FRV Commissioner, Gavin Freeman, sent a letter to Mr Marshall which made a further request for information arising from an apprehension that FRV's reimbursement of the contributions made by employees might be subject to Fringe Benefits Tax (FBT). In this letter, Mr Freeman first set out FRV's understanding of the arrangement which had been put in place, including:

[106]

[57] An initial question arises as to the competency of the UFU's appeal. Section 604(1)(a) of the FW Act permits a person who is aggrieved by a decision of the Commission, other than a decision of a Full Bench or an Expert Panel, to appeal the decision with the Commission's permission. The FW Act does not provide for any mechanism in which a decision by the Commission constituted as a Full Bench, including a first-instance decision, may be appealed. Subject to any application for judicial review, a decision of a Full Bench is final.

[58] Additionally, the FW Act does not permit the constitution of a Full Bench other than in specific circumstances prescribed by the Act. The default position established by s 612(1) is that a function or power of the Commission may be performed or exercised by a single Commission Member, other than an Expert Panel Member, as directed by the President, except as provided by Subdivision A of Division 4 of Part 5-1 of the FW Act. The provisions of Subdivision A prescribe the circumstances in which the Commission may or must be constituted as a Full Bench. These are, in summary, as follows:

Section 613: to hear an appeal under s 604 (including to determine whether to grant permission to appeal).

Section 614: to decide whether to conduct a review of a decision under s 605 (on application of the Minister) and, if the Full Bench decides to conduct the review, to conduct the review.

Section 615: where the President directs that a function or power be performed or exercised by a Full Bench.

Section 615A: where the President is required to direct that certain functions or powers be exercised by a Full Bench.

Section 616: certain prescribed functions or powers must be performed or exercised by a Full Bench.[10]

[59] None of the above provisions is applicable to the UFU's putative appeal.

[60] Notwithstanding this, the UFU and the FRV both contend that the UFU's appeal against the Full Bench's decision at first instance is competent and must be heard by another Full Bench. They were directed to file submissions addressing this issue in order to satisfy us that we had jurisdiction to hear the appeal.

[137]

[76] A limited degree of departure from that position is permitted by s 739(3). It prohibits the Commission from exercising 'any powers' - meaning, we consider, the Commission's powers provided for elsewhere in the FW Act - where the dispute resolution procedure prescribes a relevant limitation on those powers. For example, a dispute resolution procedure may provide that the Commission, in arbitrating a dispute, is not permitted to order the production of documents by any party. In that case s 739(3) would bar the Commission from making an order to that effect despite the power it otherwise has under s 590(2)(c). Another example is that a dispute resolution procedure may provide that the Commission is not to exercise any appeal powers despite s 604 of the FW Act, rendering the first-instance decision final. However, s 739(3) is expressed as a purely negative stipulation and cannot be read in a positive sense as authorising the conferral by a dispute resolution procedure of any additional powers upon the Commission not contained in the FW Act. Further, s 739(3) is concerned only with the exercise of the powers of the Commission and does not authorise any departure from its constitution, structure or organisation under the FW Act.

[77] Section 739(5) is, we consider, concerned with the outcome of an arbitration which the Commission is authorised to undertake consistent with ss 739(3) and (4). It is expressed to operate '[d]espite subsection (4)', which indicates that it operates as a limitation on the exercise of the consent arbitration power under s 739(4), and it applies to the arbitral decision which the Commission makes. It does not constitute an avenue by which a dispute resolution procedure in an enterprise agreement (being a 'fair work instrument that applies to the parties') may confer powers on the Commission which it does not otherwise possess under the FW Act or alter its constitution, structure or organisation. This is consistent with the way in which s 739(5) was construed by the Full Court in Endeavour Energy at [33]:

[139]

[78] The Explanatory Memorandum for the Fair Work Bill (EM) provides support for our analysis. In respect of cl 739 of the Bill, the EM relevantly stated:

This clause sets out what FWA can and cannot do when dealing with disputes under a term of a modern award, enterprise agreement or contract of employment.

Subclause 595(1) provides that FWA may only deal with a dispute if it is expressly authorised to do so under the Act, and subclauses 595(2) and (3) set out how FWA may deal with disputes. For the purpose of subclause 595(1), subclause 739(1) expressly authorises FWA to deal with disputes.

Where such a term requires or allows FWA to deal with a dispute, it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 (see subclause 595(4)), unless those powers are limited by the term (subclause 739(3)). FWA has general powers under clause 590 to inform itself as it sees fit, including the power to require parties to attend, conduct a conference and take evidence. Clause 595 provides that FWA can deal with a dispute before it as it considers appropriate, including by mediation, conciliation, making non-binding recommendations and expressing an opinion.

Under subclause 739(4) FWA can make a binding decision in relation to a dispute if, in accordance with a term in a modern award, enterprise agreement or contract, the parties have agreed to this, whether the term refers to arbitration, final determination, making an award or order or something similar. For example, a term of an enterprise agreement could authorise FWA to arbitrate or determine (however described) a dispute under that enterprise agreement, resulting in a binding determination.

Subclause 595(3) provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the purpose of that provision, subclause 739(4) expressly authorises FWA to deal with a dispute by arbitration.

Unless the dispute resolution process term provides otherwise, an arbitrated decision of FWA about a dispute will be appealable in accordance with clause 604. Similarly, if FWA holds a hearing in relation to a matter, the hearing would ordinarily be held in public. This is because all of FWA's powers and procedures under this Bill apply in relation to disputes under this Division unless limited by the parties in the term.

Despite anything to the contrary in a modern award, enterprise agreement or contract of employment, FWA cannot make a binding decision that is inconsistent with the parties' rights or obligations under the Bill (including the regulations) or a fair work instrument (such as an enterprise agreement) that applies to them (subclause 739(5)). These rights and obligations can only be finally determined by a court.

For example, FWA could not make a binding decision that would modify the way the NES or a modern award apply in a particular workplace or to determine that requirements of the Bill do not apply.

This maintains the integrity and stability of the safety net, by ensuring that NES or a modern award[] cannot be modified other than in accordance with the processes provide[d] in the Bill so that it does not apply differently in relation to particular workplaces or employees.

[79] The following propositions may be derived from the above passages in the EM:

Section 739 was intended to be prescriptive as to what the Commission 'can and cannot do' under a dispute resolution procedure in (relevantly) an enterprise agreement.

In dealing with a dispute, the Commission may exercise all its statutory procedural powers unless those powers are limited by the dispute resolution procedure pursuant to s 739(3).

The expression 'however described' in s 739(4) was intended, consistent with our earlier discussion, to allow for synonymity in the expression of an agreement to arbitrate.

Section 739(5) is concerned with the decisions which the Commission may make in an arbitration conducted under s 739(4), and is not concerned with the Commission's power to arbitrate or the manner of discharge of the arbitral function.

[80] There is nothing in the EM to suggest it was intended that, apart from a limitation on the exercise of powers of the type to which s 739(3) applies, a dispute resolution procedure could confer additional or novel powers, functions or procedures upon the Commission or require the Commission to exercise them.

[81] The specific reference to the appeal function in [2738] of the EM is obviously of significance. The intended default position is clearly that the right of appeal (subject to requirement for permission to appeal being granted) for which s 604 provides will apply to any arbitrated decision. The exception to this ('Unless the dispute resolution process term provides otherwise...') is to be read with the last sentence in the paragraph, which causally links it with the proposition that 'all of' the Commission's powers and procedures apply to the dispute resolution function under s 739 'unless limited by the parties in the term'. This last expression clearly refers to a limitation on the Commission's powers under s 739(3), so that 'provides otherwise' is to be read as providing otherwise by way of a limitation on the power to hear and determine appeals. Thus, as mentioned at [76] above, a dispute resolution procedure in an enterprise agreement may provide that there is no capacity to appeal an arbitrated decision, in which case the Commission will be prohibited by s 739(3) from exercising its appellate functions. Paragraph [2738] of the EM does not support the proposition that a dispute resolution procedure in an enterprise agreement can effectively rewrite the statutory appeal provisions, as distinct from merely limiting them, or confer upon the Commission appeal functions for which the FW Act does not already provide.

[82] The above analysis does not support the proposition that the UFU's appeal is competent, that there is any capacity or requirement for a Full Bench of the Commission to hear an appeal from another Full Bench that has arbitrated a dispute under cl 21 of Division A of the Agreement at first instance, nor that a Full Bench of the Commission may be constituted in a circumstance not permitted by the FW Act. Section 739(4), from which the Commission derives its power to arbitrate a dispute under a dispute resolution procedure in an enterprise agreement, does not authorise the Commission, in exercising its arbitral function, to exercise other functions or engage in other procedures not otherwise provided for by the FW Act. Nor does s 739(4) authorise alterations to the constitution, structure or organisation of the Commission. Under s 739(3), the general powers of the Commission under the FW Act may be limited in a specific way by a dispute resolution procedure, but they cannot be expanded (beyond the exercise of the arbitral function) or made subject to novel variations. Thus, under this analysis, if cl 21.7 of Division A is to be construed as purporting to empower or require the Commission to hear this appeal - an issue we deal with below - it is of no valid effect because it is not authorised by the FW Act.

[198]

[106] Two matters about the above passage may be noted. First, in the former underlined section, Colvin J appears to consider, as a matter of principle, that a dispute resolution procedure in an enterprise agreement cannot confer on the Commission a broader right of appeal (whether characterised as a statutory or arbitral appeal) than that conferred by the FW Act. That is consistent with our analysis above. Second, in the latter underlined portion, his Honour appeared to consider that, in Glen Cameron, Perram J proceeded on the basis that s 739(4) conferred authority on the Commission to conduct an arbitration involving a right of appeal. As earlier stated, Perram J referred in fact to s 739(5) and, on our reading of the decision, did not treat s 739(4) as the source of power.

[107] In the face of this somewhat confusing line of authority, we prefer the position that the case authorities that affirm that a provision in a dispute resolution procedure in an enterprise agreement may validly confer a right of appeal are best explained on the basis that such a provision is given effect by s 739(3) as one which negatives the Commission's power to grant or refuse permission to appeal. It may be acknowledged that this explanation is not entirely satisfactory given the observations in Maersk at [10] and the differing sources of statutory authority identified in the cases to which we have referred. In any event, whatever view is taken, we do not consider that we are bound to extrapolate from these decisions that, in an enterprise agreement, the parties are entirely at large to prescribe the nature, scope and incidents of an appeal which the Commission is required to hear and determine, or the constitution of the Commission when it does so, irrespective of the appeal provisions of the FW Act. We consider the correct position to be that where, pursuant to s 739(4), there is agreement to arbitrate a dispute, there will as part of the arbitral process be a right of appeal, subject to the grant of permission, in accordance with ss 604 and 607 unless, because of s 739(3), the Commission is prohibited in part or whole from exercising its appeal powers because of an applicable limitation in the dispute resolution procedure. There is otherwise no statutory basis for a dispute resolution procedure to validly allow or require the Commission to exercise appeal powers for which the FW Act does not provide or to constitute a Full Bench in circumstances not authorised by the FW Act.

[108] For completeness, the parties' reference to the 2025 Full Court decision in UFU v FRV does not take the matter any further. In its decision, the Full Court at [26] summarised the effect of Gordonstone, ALS and Endeavour Energy and, at [27], said:

[202]

[111] The first of these propositions is particularly significant because it indicates that the reference to the capacity to 'utilise all its powers in conciliation and arbitration to settle the dispute' (emphasis added) in cl 21.2.6 includes the Commission's appeal powers under the FW Act. It follows that cl 21.2.6 must contextually inform the construction of cl 21.7. Clause 21.7 is not to be read as a 'stand-alone' provision dealing with the capacity to appeal, but operates as an adjunct or qualification to cl 21.2.6. That is, cl 21.2.6 indicates that all the Commission's appeal powers are available as part of the arbitral process, but cl 21.7 qualifies this by providing that there is a right of appeal, meaning that the Commission's powers in respect of permission to appeal are not to be utilised. This is consistent with the second proposition stated in the Full Court's decision.

[112] In their submissions, the UFU and FRV place particular emphasis on the sentence 'Any decision of the FWC may be appealed' as indicating that any decision made by the Commission, however constituted, is appealable. However, the sentence cannot be read in this overly literal way since it would follow that even an appeal decision by a Full Bench is appealable to another Full Bench. The UFU conceded that the sentence cannot be read in that way and that some limitation must be implied. Clause 21.2.6 provides that all of the Commission's powers are available to be used as part of the private arbitration process, but it does not purport to confer additional powers upon the Commission. The second sentence of cl 21.7 should be construed consistently with this. In our view, it is to be read as adding confirmatory emphasis to the first sentence in cl 21.7 by indicating that the right of appeal, without the need for permission, applies to all decisions which are otherwise appealable under the FW Act. This would include interlocutory as well as final decisions. The sentence should not, in our view, be read as purporting to establish independently the capacity to appeal a decision which is not appealable under the FW Act since this would be inconsistent with cl 21.2.6.

[113] Both cls 21.2.6 and 21.7 refer to the arbitral functions being undertaken by 'FWC', defined in cl 11.5 of Division A to mean the Fair Work Commission. In the absence of any clear indication to the contrary in the Agreement, these references to 'FWC' should be read as referring to the Fair Work Commission as constituted and organised under the FW Act. There is no indication in the text of cls 21.2.6 or 21.7 that it was intended that the Commission might be required to constitute itself as a Full Bench in a way not permitted by the FW Act. The reference in ALS to parties who choose to go to arbitration with the FWC 'taking that body as they find it' was made in the context of interpreting an enterprise agreement disputes clause. The principle is applicable to the Agreement and further supports our conclusion that the word 'any' in clause 21.7 is not intended to establish some hitherto unknown process of an appeal from one Full Bench to another Full Bench.

[114] Therefore, in summary, the effect of cl 21.2.6 in respect of appeals is that all the Commission's powers of appeal in the FW Act may be utilised as part of the arbitral process, but it does not purport to allow for appeal powers for which the FW Act does not provide. Clause 21.7 qualifies cl 21.2.6 by providing that there is a right of appeal, without the need for permission, in respect of appealable decisions. A Full Bench decision is not appealable under the FW Act and cl 21.2.6 does not provide for any powers of appeal with respect to such a decision in the arbitration process. Clause 21.7 does not provide for any additional capacity to appeal decisions which are not appealable under the FW Act but rather qualifies cl 21.2.6 by providing, with respect to the utilisation of appeal powers under that clause, that permission to appeal is not necessary.

[115] This construction of cls 21.2.6 and 21.7 is harmonious with the statutory scheme as we have described it and avoids the absurdity attending the prospect of a Full Bench being required to hear an appeal from another Full Bench within the same institution. For these reasons, it is to be preferred to the construction advanced by the parties, which seeks to read cl 21.7 over-literally and in isolation from cl 21.2.6, and would involve the purported conferral of appeal powers on the Commission in a manner not authorised by s 739.

[116] We reject the UFU's contention that the only alternative to its (and FRV's) construction of cl 21.7 is that cl 21 must be read as impliedly prohibiting any dispute brought to the Commission under that provision from being referred for hearing to a Full Bench at first instance under s 615 of the FW Act. That would be a limitation of the kind contemplated by s 739(3), specifically on the President's power to direct a Full Bench to perform a function or exercise a power of the Commission. Such a limitation could have been included in express terms in cl 21 and, if it had been, s 739(3) would have required the Commission to give effect to it. However, it was not, and we do not consider that there is any basis for its implication, for two reasons. First, because cl 21.2.6 provides that the Commission 'may utilise all its powers in conciliation and arbitration to settle the dispute', the exercise of the power to refer the dispute to a Full Bench under s 615 is necessarily not excluded. Second, for the reasons we have stated, there is another construction of cls 21.2.6 and 21.7 which avoids the difficulties with the alternative posited by the UFU.

[117] On our construction of cls 21.2.6 and 21.7, there is no purported right of appeal from the Full Bench's decision in this matter, and the appeal is incompetent and must be dismissed.

[118] Alternatively, even if cl 21.7 is to be read as purporting to confer a right of appeal from a Full Bench decision, as the UFU and FRV contend, it is not a provision which is legally effective in this respect. On our analysis of the statutory scheme, the Commission may only exercise powers under a dispute resolution procedure in an enterprise agreement to the extent authorised by the FW Act. If such a term purports to confer powers on the Commission in a way not authorised by the FW Act, there is no proper basis for the Commission to exercise the purported powers and the term has no valid effect to that extent. Section 739 does not authorise the Commission to exercise, as part of the arbitration process, appeal powers purportedly conferred by a dispute resolution procedure for which the FW Act does not already provide, nor to constitute itself in a way not permitted by the FW Act. This leads to the same conclusion that the appeal is incompetent.

[119] In accordance with these conclusions, the appeal is dismissed as beyond jurisdiction.

[120] However, in the event that our conclusions in this respect are incorrect, we consider it appropriate to state our views as to the merits of the appeal.

[240]

[137] We are not satisfied that the Production Decision was the subject of any appealable error. The Full Bench's Production Decision, and its associated refusal of the UFU's various applications for an adjournment or a deferral of the requirement for production of the relevant documents, involved an exercise of the broad discretion under ss 589(1) and 590 of the FW Act. We accept that the Commission was required to exercise a discretion of this nature reasonably: Li. However, we do not consider that the circumstances in which the Production Decision was made demonstrate legal unreasonableness, and the UFU was not denied procedural fairness. In this respect, the following matters are relevant.

[138] First, the documents were plainly of apparent relevance to the dispute such that there was a legitimate forensic purpose for their production. The Side Letter may be characterised as an instrument collateral to the Deed and forming part of the overall arrangement for the establishment and operation of the Trust which was at the centre of the dispute. Its relevance is clear and obvious from a cursory inspection of the document. The Advocate Agreement and the documents pertaining to the 'mental health app' demonstrated payments being made from the Trust fund for which FRV was, by the reimbursements it made to employees for their contributions to the Trust pursuant to the Reimbursement Order, the ultimate funding source. The UFU has not, in its appeal, contended that the documents did not have apparent relevance and, indeed, has not objected to the admission of the documents into evidence in the appeal. Nor has it identified any reasonable argument it might have put against the production of the documents on the grounds of relevance if it had been afforded an adjournment or a deferment of the requirement for production.

[139] Second, we do not accept that the UFU could reasonably have been surprised by the call for the documents. The documents were not obscure in nature: they were central to the subject matter of the dispute since they evidenced substantial payments not associated with income protection being made from the Trust fund. It was Mr Marshall that executed the Advocate Agreement and who was the recipient of the Side Letter, and the documents pertaining to the payments made from the Trust fund for the mental health app demonstrate that it was Ms Campanaro who arranged for the payments be made. The relevance of the documents was so obvious that it might be considered that the UFU, as the moving party in the dispute proceedings seeking that the Commission enforce the existing arrangement, demonstrated a lack of candour in not disclosing the documents to the Commission on its own initiative. Indeed, as to the Deed and Side Letter, they ought to have been substantively disclosed to FRV as part of its consultation obligations concerning its negotiations with FRV about the scheme, a matter to which we return to below. The UFU must have been aware from the outset that there was a risk that the existence of the documents would become known during the proceedings, given that it called Ms Campanaro and Mr Harms to give evidence. Once the profit and loss statement for the Trust went into evidence and became the subject of questions in the cross-examination of Mr Harms, the likelihood of disclosure of the existence of the documents must have become obvious.

[140] Third, the UFU had a reasonable opportunity to consider and provide instructions concerning the documents during an adjournment which lasted almost an hour and a half, noting that the transcript makes it apparent that the documents were accessible by the time the hearing resumed. The most senior officer of the UFU was available to provide those instructions. The UFU was represented by experienced counsel who were entirely capable of putting whatever argument the UFU may have wished to advance about relevance and confidentiality after the benefit of the adjournment, and were given full opportunity to do so. Again, the UFU has not identified any argument it might have advanced with the benefit of a longer adjournment that it could not have put on the day of the hearing. Consequently, there is no reason to consider that, as a result of the refusal of the applications for adjournment or deferment, the UFU was denied the possibility of an alternative outcome with respect to production of the documents.

[141] Fourth, the UFU has not identified any prejudice it suffered in the proceedings as a result of the Production Decision which the Full Bench failed to take into account when it refused an adjournment or deferment. It was not an automatic or necessary consequence of production of the documents to the Commission in compliance with the Production Decision that they would be admitted into evidence or publicly disclosed, and the UFU's rights were reserved in that respect. In any event, the UFU did not comply and, as a result, the documents formed no part of the Full Bench's consideration (beyond reference to the fact of the UFU's non-compliance).

[142] Fifth, the UFU's prior prolonged non-compliance with the earlier order for production of the Deed made by Commissioner Wilson rationally weighed against it being allowed any degree of indulgence with respect to FRV's call for production.

[143] In respect of the UFU's contention that the Production Decision was uncertain, we first note that, as the Full Bench observed during the hearing, it was not a decision which was required under s 601(1)(a) to be published in writing. The orality of the decision, and the rapidly evolving circumstances in which it was made, necessarily guide appellate consideration of the form of the Production Decision. As FRV submitted, perfection as to form is not to be expected in those circumstances. The context makes it plain that the Production Decision required the UFU to produce the documents, and it is equally clear that the UFU's legal representatives understood this at the hearing. The UFU's submission that the Production Decision was uncertain as to the documents to be produced is rejected because, as our detailed narration of the events leading to the making of the Production Decision demonstrates, the UFU had itself identified the documents which it considered were responsive to FRV's call for production, and the Production Decision may in that context only reasonably be understood as applying to those identified documents. As to the time for production, while no precise time was identified, the Full Bench made clear that the documents were to be produced, if practicable, before the end of the hearing that day so that Mr Harms could then be further cross-examined on the basis of the documents produced. The UFU has not contended that it was not practicable to produce the documents which, as earlier stated, appear to have been accessible to the UFU's legal representatives in court by the end of the luncheon adjournment. There is no suggestion that the UFU officers and staff present lacked any requisite authority to produce the documents or provide the necessary instructions.

[144] Even if we were persuaded that the Production Decision was attended by some form of appealable error, we would not exercise our discretion under s 607(3) of the FW Act to grant any relief in respect of this aspect of the UFU's appeal. The UFU did not comply with what was, on any view, a clear requirement by the Full Bench that the documents be produced. Instead, on the basis that it intended to seek judicial review of the Production Decision, it ceased to participate in the hearing. No such application for judicial review ever eventuated. The effect of non-compliance meant that the Full Bench did not have the benefit of the Side Letter and the Advocate Agreement, which clearly formed part of the overall Howden scheme and the latter of which placed the payments made by the Trust to the UFU in their proper context (as we later discuss).

[145] In this appeal, the UFU has not provided any explanation or excuse for its non-compliance. The purpose of its appeal, we infer, is merely to escape any consequences which might flow from its non-compliance. That is not an appropriate basis upon which to exercise any discretion in favour of the UFU, especially when this is the second occasion in the same proceeding where the UFU has failed to comply with an order for production by the Commission.

[241]

[146] In its Substantive Decision, the Full Bench at [43] characterised the essence of the dispute as being whether the Howden scheme was an income protection policy or scheme for the purposes of cl 48 of Division A of the Agreement and, if so, whether it was agreed. As to the first of these questions, the Full Bench accepted at [44] that the words 'policy' and 'scheme' are of broad scope, that income protection is not necessarily confined to an insurance policy provided by an insurance company, and that a policy or scheme could be one for income protection and also deal with other matters. However, the Full Bench concluded that the Howden scheme is not an 'income protection policy/scheme' within the meaning of the Agreement. The Full Bench gave five reasons for this conclusion. The first was that the Deed did not deal with the subject matter of income protection at all, since it did not mention it and was in substance a general risk management scheme rather than an income protection scheme: [45]. Second, the Full Bench considered that the reference to 'income protection' in cl 48 was not satisfied by a scheme under which the benefits to be received by members of the Trust are at the discretion of the Trustee, who has no obligation to make any particular payment to a Member: [46]. Third, the Full Bench considered that the employees who voted upon the Agreement would reasonably have expected that an income protection policy or scheme that might be agreed by FRV and the UFU would be one that specifically protected their income if they were unable to work, and doubted that 'it would have been in the reasonable contemplation of an ordinary worker that an income protection policy or scheme might include a discretionary trust, whose trustee was at liberty to decide which of all the risks in life should be covered by the scheme from time to time, and whether an employee should receive any payments at all if the chosen risks materialise': [47]. Fourth, the Full Bench considered that the payment of $480,000 from the Trust fund to the UFU for 'promotion/management costs' had the consequence that the Howden scheme was not one for all employees covered by the Agreement, but rather one for the benefit of the employees and the UFU: [48]. Finally, the Full Bench said it would not be minded to reach a conclusion that the Howden scheme was a policy or scheme for the purposes of the Agreement if it held a concern about the probity of the arrangement that might affect its proper characterisation. The Deed provided that the UFU in its role as 'advocate', which included promoting the Trust and encouraging participation in the scheme, was not entitled to a fee in relation to this role. In this context, the UFU had provided no explanation about the payment to it of $480,000 from the Trust fund, and had ignored the Commission's order for the production of a relevant document: [50].

[147] The Full Bench also determined that the Howden scheme was not 'agreed' with FRV because FRV had no knowledge of its essential features, in that there was no evidence that the UFU told FRV that the new arrangements were an alternative risk management scheme, that 'the payments made into the Trust would [not] cover claims directly', that the risks to be covered would be determined at the Trustee's discretion, or that scheme could be used in a way which would see substantial payment to the UFU from Trust funds. The Full Bench considered that FRV should have asked more questions about the proposed arrangement prior to or at the meeting on 21 December 2022 and before making payments into the Trust. However, because the Full Bench construed cl 48 to require actual agreement, not ostensible or deemed agreement, it concluded that what was implemented is not something that was in fact agreed. No-one present at the 21 December 2022 meeting, including Mr Marshall, gave evidence as to what was discussed at the meeting, and the minutes of the meeting are the evidence of what was agreed. The Full Bench found that there was no evidence of FRV agreeing, whether through the Consultation Committee or otherwise, to the essential features of the arrangement that was implemented: [50]-[52].

[148] On the basis of these conclusions, the Full Bench declined to make the first order sought by the UFU. It also said that it would not make the second order sought because this was consequent on the first, and also because the UFU's earlier failure to comply with the Production Order and the Production Decision weighed against the exercise of the discretion in its favour on grounds of basic fairness, namely that a person should not expect the Commission to issue orders against others if it will not follow the Commission's orders itself. Further, the consequence of the UFU's failure to produce relevant documents as required by the Production Decision is likely to be that FRV has been deprived of relevant evidence. The Full Bench said it would not make an order extending the scope of the payment obligation in the Reimbursement Order given that Trust monies have apparently been used to make substantial payments to the UFU in circumstances that remain opaque, a situation that the UFU has contributed to by refusing to produce the documents called for by FRV. Further, the Full Bench also declined to make the orders sought by FRV, which was to disentangle the insurance premium from the bundle of discretionary benefits made available to employees pursuant to the Howden scheme, which would be a difficult and not necessarily successful exercise: [53]-[54].

[242]

[149] The grounds of appeal against the Substantive Decision are:

The Commission erred in holding that the Howden scheme was not an 'agreed income protection policy/scheme for all employees covered by [the Agreement]' within the meaning of the Agreement.

The Commission should instead have held that the Howden scheme was an 'agreed income protection policy/scheme'.

If the Commission had held that the Howden scheme was an 'agreed income protection policy/scheme['], then it should have made either or both of the orders sought by the UFU in its proposed orders filed on 6 March 2025 (subject to correction of the clause numbers cited in that document), and there would have been no basis not to do so.

[150] The UFU submits in respect of grounds 4 and 5 that the Howden scheme is an 'income protection policy/scheme' within the meaning of cl 48 of Division A, in that it is an arrangement with the non-exclusive purpose of income protection. The Agreement does not require that the purpose of income protection must be achieved by any particular legal instrument, such as by a traditional insurance policy, and the use of the word 'scheme' evinces that the parties countenanced that something other than an insurance policy might be utilised.

[151] The UFU submits that, in concluding to the contrary, the Full Bench erred in five specific instances. First, when the Full Bench considered that the Howden scheme does not qualify because it does not 'deal with the subject of income protection' as a matter of 'substance', it erred because an express purpose of the Deed is to mitigate and protect against 'Member Risks' which, by reference to the 2023 PDS, includes loss of income. Further, the Trust has purchased an income protection scheme to meet claims above prescribed thresholds. Second, in determining that an income protection policy/scheme cannot involve a discretionary trust, the Full Bench gave an impermissible narrow reading of cl 48 and ignored the substantial self-insurance character of the Howden scheme. Third, the Full Bench engaged in impermissible conjecture when it said that employees would not have contemplated the use of a discretionary trust when they voted on the Agreement, and failed to take an objective approach. Fourth, the Full Bench's conclusion that the Howden scheme is one for the benefit of both employees and the UFU, and not an income protections scheme 'for' employees is misconceived because the fact that a scheme has incurred expenses to one or more service providers does not detract from its character as a scheme designed to protect income for employees. Fifth, it is unclear what the Full Bench meant by its concerns about the 'probity' of payments to the UFU, which affects the question of characterisation of the Howden scheme. Whether or not the payments to the UFU were lawful or not by reference to the Deed is irrelevant to the characterisation of the scheme itself.

[152] The UFU further submits, under grounds 4 and 5, that the Howden scheme is an 'agreed' income protection policy/scheme in a functional sense in that FRV willingly and for a long time implemented their role by making payments into the Trust, notwithstanding that they did not have the Deed between UFU and ARMS (although they must have known that such a document existed). In any event, the essential features of the Howden scheme were known to and 'agreed' by both parties: (1) it would protect income and provide other benefits; (2) it would do that through a discretionary trust provided by Howden; (3) 'Trust Cover' for employees was 'fully discretionary' (but the Trust was obliged to respond in the best interest of covered employees); (4) insurance underwriting was provided by Arch; (5) the cost to the employees would be the same as under the previous scheme; and (6) FRV would reimburse that cost. The Full Bench's finding that there was no agreement because of a range of matters not told to FRV is contrary to the evidence: that FRV did know, and did agree, to making payments into a discretionary trust, and plainly had actual or constructive knowledge that there would be a Trust Deed.

[153] As to ground 6, the UFU contends that the Full Bench erred in failing to make the orders sought by the UFU if the Howden scheme is properly to be characterised as an 'agreed income protection policy/scheme'. There was no reason to refuse any relief on a discretionary basis because it is doubtful that the Commission has any true discretion when the parties submit for private arbitration a question about their pre-existing legal rights. In any event, it is perverse to suggest that the substantive dispute between the parties should be resolved against it for non-compliance with the Production Decision, which it had now complied with in any case. Any concern held by the Full Bench about the lawfulness or appropriateness of the payments from the Trust to the UFU has no rational bearing on the quantum of payments that FRV is obliged to make to the Trust.

[154] FRV submits that the Full Bench's characterisation of the Howden scheme was correct. The Full Bench recognised that a 'scheme' under cl 48 is not necessarily confined to an insurance policy provided by an insurance company, but this alone does not require a finding that the Howden scheme falls with the scope of the clause. The Deed does not 'deal with' income protection: it omits any reference to income protection, the Trustee has an absolute discretion as to whether and how to execute the purposes of the Trust, and 'Member Risks' are as determined by the Trustee in consultation with the Advocate. Although the 2023 PDS makes reference to 'loss of income' as a Member Risk, Member Risk does not 'include' loss of income unless the Trustee says so, and then only until the Trustee decides otherwise. Likewise, the purchase of insurance is entirely discretionary. FRV submits that the Howden scheme does not make provision for payments that 'protect' income in the sense of guarding it against injury or danger because of its discretionary nature. In considering that the employees who voted on the Agreement would not have contemplated that cl 48 allowed a scheme of this nature, the Full Bench correctly undertook an objective contextual assessment of what the voting cohort would have understood by the language used in the clauses in an enterprise bargaining process. The funds paid to the UFU are relevant to whether the Howden scheme can properly be characterised as a scheme 'for all employees covered under this Division' because, first, the scheme has conferred significant benefits on a person that the clause was not designed to benefit and, second, the scale and undisclosed nature of the payments suggest that a substantial purpose of the Howden scheme was to allow for the conferral of benefits on the UFU.

[155] It is also submitted by FRV that the Howden scheme was not 'agreed' under cl 48 at the meeting on 21 December 2022 because the evidence demonstrates that its essential features were not disclosed to FRV, namely:

it is an alternative risk management scheme;

the scheme entails the use of a discretionary trust;

the risks managed under the scheme are at the absolute discretion of the Trustee, and therefore income protection is not a mandated risk to be covered by the scheme;

whether an FRV employee is permitted to join the Trust is at the Trustee's discretion;

the Trustee is entitled to admit UFU members (who are not FRV employees) to membership of the Trust;

only a small proportion of the premium is to be used to pay for income protection insurance premiums and payments made into the Trust cover claims under $200,000 directly;

the Trustee is not obliged to make any payment to a Trust Member for income protection; and

the Trustee had the ability to use Trust funds to confer benefits on the UFU.

[156] FRV also submits that the grant of relief was discretionary since the Full Bench was obliged to take into account 'equity, good conscience and the merits of the matter' under s 578(b) of the FW Act, and the relief sought by the UFU included the determination of future rights. There was no error in the Full Bench's decision to refuse the relief sought by the UFU: the UFU had conceded in related Court proceedings that its non-compliance with the Production Order could be taken into account by the Commission in its final arbitral decision, and the payment of Trust monies funded by FRV to the UFU was never disclosed to FRV and has never been properly explained.

[157] After the appeal hearing, the UFU, without leave of the Commission or the consent of FRV, filed a document evidencing an amendment to the definition of 'Member' in the Deed made on 22 May 2025. This document cannot be used to demonstrate error in the decision of the Full Bench. We do not propose to have regard to it, and our consideration of the appeal will be based on the terms of the Deed as they were at the time of the hearing before the Full Bench.

[244]

[159] The 'income protection policy/scheme' must be 'for all employees covered by this Division'. Because each division of the Agreement, as earlier explained, includes the same income protection provision, this requirement effectively applies to all employees covered by the Agreement. The requirement involves three things. First, the policy or scheme must be 'for' the covered employees, which (like the Full Bench) we read as meaning for their benefit. Second, it must be for 'all' employees, so that the policy or scheme must not be one which may apply to only some of the employees covered by the Agreement. Third, the policy or scheme is not 'for' employees or other persons who are not covered by the Agreement.

[160] The obligation imposed by cl 48.1 is for FRV and the UFU to 'consult and implement' an income protection policy or scheme that is 'agreed'. The references to 'consult', 'implement' and 'agreed' are contextually informed by cl 16 of Division A. Clause 16.4.4 provides that the Consultation Committee established by cl 16 is the mechanism by which consideration is to be given and recommendations and decisions made in respect of matters which the Agreement requires to be the subject of consultation. Decision-making by the Consultation Committee is to be by 'consensus': cl 21.5.1. Consequently, insofar as cl 48.1 requires FRV and the UFU to 'consult' as to an income protection policy or scheme, that carries with it the process of consideration, recommendation and consensus decision-making for which cl 16.4.4 provides. In this context, we consider that 'agreed' in cl 48.1 refers to an agreement reached in the form of a consensus decision made by the Consultation Committee, which consists of equal numbers of representatives from FRV and the UFU with decision-making authority. The obligation to 'implement' is therefore to be understood as one to give effect to a decision of the Consultation Committee in respect of an income protection policy or scheme. Therefore, any agreement in respect of such a policy or scheme must necessarily be located in a decision of the Consultation Committee.

[161] Before we give direct consideration to grounds 5 and 6 of the appeal, which concern whether the Howden scheme can be characterised as an 'income protection policy/scheme' and whether it was 'agreed', it is necessary to observe the subject matter of the UFU's case, and the orders it sought in respect of the dispute, had shifted significantly by the time of the hearing before the Full Bench. Its application as filed claimed that the dispute was about an apprehended reduction of the amount that FRV was required to pay under the Reimbursement Order, as adjusted. The relief sought by the UFU was an order that 'FRV continue to pay the full amount of the income protection allowance as fixed by the Order of Commissioner Wilson dated 21 October 2022'. However, by the time of the hearing, the UFU's focus had shifted towards the question of compliance with cl 48.1, and the relief it sought was a declaratory order that the Howden scheme was an 'agreed income protection policy scheme' under cl 48.1 together with a new order requiring a specified reimbursement amount to be paid by FRV in respect of the Howden scheme.

[162] This shift in the UFU's position is understandable, since the proposition that FRV was required by the Reimbursement Order to pay the amount of $55.22 per week per employee in respect of the Howden Scheme is unsustainable. The Reimbursement Order is expressed as applicable only to employees who have income protection insurance under the arrangements agreed from time to time. FRV's obligation under the Reimbursement Order, as made, is to reimburse employees for their premiums up to a maximum amount of $50.43 per week (or such other amount as agreed between FRV and the UFU). Although the 2023 Adjustment Order makes reference to a non-existent 'income protection reimbursement allowance', the reference to the amount being adjusted ($50.43) makes it plain enough that the relevant effect of the Adjustment Order was to vary the maximum reimbursement amount in the Reimbursement Order by increasing it to $55.22 per week. To the extent that the UFU ventured to submit in the appeal hearing that the Adjustment Order involved some alteration to the scheme to which the reimbursement payment related, that submission is rejected. There is no hint in the Commissioner's reasons that the UFU disclosed that the Reimbursement Order required variation by reason of some change in the income protection arrangements.

[163] The evidence is that the premium being paid on behalf of each employee for income protection insurance since 1 January 2023 is the amount of $5.42 per week. Therefore, even if the Howden scheme is characterised as an agreed arrangement, that amount is all that FRV has been required to reimburse to employees pursuant to the Reimbursement Order, as adjusted, since that date. The UFU did not attempt to demonstrate that, separate from the terms of the Reimbursement Order, there was an agreement with FRV that FRV would pay an amount equal to the maximum amount prescribed by the Reimbursement Order even if this was in excess of what was necessary to reimburse employees for income protection insurance. Certainly, the minutes of the Consultation Committee meeting on 21 December 2022 make no reference to any such agreement. On one view that renders the issues decided in the Full Bench's Substantive Decision, and the appeal grounds, somewhat academic. Nevertheless, we turn to them now.

[164] In respect of ground 5, we consider that the Full Bench's conclusion that the Howden scheme did not constitute an 'income protection policy/scheme' for the purpose of cl 48.1 was correct. Although the Howden scheme permits the provision of income protection to employees, it neither has this as its purpose nor requires it. The purpose of the Trust, as identified in cl 2.2 of the Deed, is to mitigate and protect against 'Member Risks' and maintain funding to meet 'Claims' and purchase insurance. However, 'Member Risk' is not defined to mean, or even necessarily include, loss of income due to illness or injury; rather, it is for the Trustee in consultation with the UFU (in its role as 'Advocate') to determine what the relevant risks are. A 'Claim' is any claim which the Trust is intended to meet, as outlined in the 2023 and 2024 PDS. Loss of income is just one of a range of risks referenced in the 2023 PDS along with death, accidental dental injury, broken bones and ambulance cover. The Side Letter contemplates a range of additional risks being accommodated by the scheme. Insurance cover may be obtained via an insurance policy, but it is for the Trustee to determine whether to purchase an insurance policy, what Member Risks that policy will cover, and what thresholds will apply in respect of Claims made by Members. The Trustee has an obligation under cl 12.3 to protect the rights and interests of Members and to act in their best interests, but retains an absolute discretion under cls 9.2, 9.3 and 12.2 as to whether to accept any Claim. The 2023 PDS emphasises that the Trustee retains this absolute discretion in respect of 'Trust Cover' - that is, Claims which might be met out of the Trust fund. The 2023 PDS explains that insurance coverage will apply for claims over the 'Member's Deductible and the Trust Cover' but, as stated, the Trustee retains a discretion over whether, and to what extent, insurance coverage is purchased.

[165] These fundamental characteristics of the Howden scheme means that it cannot be characterised as an 'income protection policy/scheme' for two major and related reasons. The first, as the Full Bench found, is that it is a general risk mitigation scheme rather than one concerned with income protection. Although, as the Full Bench accepted, it is possible that a policy or scheme might cover other risks and still be characterised as one concerned with income protection, this is a matter of degree and emphasis. The lack of any obligation under the Deed to actually provide income protection, and the capacity to cover any Member Risks as determined by the Trustee in consultation with the UFU, makes it impossible to characterise the Howden scheme as concerned with income protection. Second, the discretionary nature of the Trust means that it cannot be characterised as 'protecting' Members in the sense of providing them with a guarantee, right or entitlement in the event that they lose income because of illness or injury. The only entitlement they may have is to claim against any insurance policy that the Trustee chooses to purchase, but only in respect of a Claim, and that part of such a Claim, that exceeds the prescribed threshold. Mr Harms' evidence was that the claim threshold for this purpose was $200,000. Members have no right for Claims to be paid out of the Trust fund, as the 2023 PDS emphasises, and the 2024 PDS warns that a depletion of Trust funds may mean that nothing can be paid out to Members. Even where the Trustee exercises its discretion to meet a Claim based on income loss out of the Trust fund, the Member has no entitlement to be paid any particular amount. Mr Harms gave evidence as to how the Trust has operated in practice, including that income protection payments have constituted the large majority of payments made from the Trust fund and that claims are paid out on the basis of a 'salary cap' of $2,100 per week, but this is a result of the exercise of the Trustee's discretion rather than pursuant to any legal entitlement.

[166] Further, the Howden scheme cannot be characterised as one 'for all employees' covered by the Agreement. As to membership, cl 7.1 provides that the Trustee retains a complete discretion as to who is admitted as a Member of the Trust, which means that employees covered by the Agreement do not have a right to membership and may be excluded by the Trustee. Conversely, persons who are members of the UFU but are not covered by the Agreement may be admitted as Members. Mr Harms' evidence was that this was intended to allow persons such as unemployed or retired firefighters, FRV non-operational staff and Victorian UFU officials to join, although Mr Marshall was the only person in this category who had joined. Thus, the Agreement coverage and the coverage of the scheme do not coincide as required by cl 48.1.

[167] It is also necessary to take into account the Advocate Agreement. Because the Advocate Agreement requires payments to be made from the Trust fund for activities said to be related to the operation of the Trust, it must be regarded as a fundamental feature of the Howden scheme as it has been since 28 September 2023, when the agreement was executed. The services which the UFU is required to provide under the Advocate Agreement lack a logical relationship to the 'Service Fee' which must be paid from the Trust fund to the UFU for those services. A number of those services, such as assisting with complex Member claims, communicating with Members about Trust performance, benefits and services, and referring requests for advice to ARMS and Howden, are all tasks which we would expect that the UFU would undertake in any event, at least for its fee-paying members. A number of the 'services' are in the nature of promoting ARMS' business, including by describing it as a 'Platinum Sponsor' at events and in publications. One might have thought that ARMS itself, rather than Trust funds, should be paying for promotional activity of this nature. It is not apparent what cost to the UFU would attach to the provision of these services, and the setting of the Service Fee at an arbitrary $30,000 per month for 2023, then doubling it to $60,000 per month from 2024, was left unexplained. Also left unexplained was the back-payment of the Service Fee under the Advocate Agreement to 1 January 2023, the day the Howden scheme came into effect.

[168] The payments made pursuant to the Advocate Agreement are a significant feature of the Howden scheme. Mr Harms' evidence was that annual contributions to the Trust amount to about $10 million per year, meaning that the current Service Fee consumes about seven percent of the contributions made to the Trust. Although it did not become aware of this until the hearing before the Full Bench, these payments to the UFU are funded by FRV. Having regard to these matters, we do not consider that the arrangements for which the Advocate Agreement provides reasonably relate to the subject matter of income protection or are substantially for the benefit of FRV's employees. This affirms the conclusion reached by the Full Bench, without knowledge of the terms of the Advocate Agreement, concerning the payments made by the Trust to the UFU.

[246]

[170] The second alleged error misstates the Full Bench's reasons: the Full Bench did not construe cl 48.1 in the narrow way suggested by the UFU but, rather, accepted that an 'income protection policy/scheme' might involve something other than an insurance policy purchased from an insurance company. The question was whether the Howden scheme specifically answered the description of being an 'income protection policy/scheme' - a question which the Full Bench, in our view, answered correctly. As to the third alleged error, we do not consider that the Full Bench engaged in impermissible conjecture about the subjective state of mind of employees when they voted upon the Agreement; rather, we consider that the Full Bench ascertained the intention of the employees who made the Agreement by way of an objective consideration of the terms of cl 48.1 as compared to the essential features of the Howden scheme. The fourth asserted error has as its premise that the payments made to the UFU were 'expenses' to a 'service provider' which did not detract from the Howden scheme's character as one concerned with income protection. The UFU is not entitled to allege error on this basis because it called no evidence before the Full Bench to explain the nature and purpose of those payments, refused to provide the documents relevant to those payments, and decamped from the proceedings rather than address the issue. With the benefit of the documents which the UFU refused to provide to the Full Bench, it is apparent to us for the reasons earlier stated that the payments to the UFU do not constitute genuine expenses of the Trust but are rather more in the nature of a secret commission paid to the benefit of the UFU. As to the fifth alleged error, we consider that the same documents demonstrate that the payments to the UFU are a part of the overall Howden scheme and consequently are relevant to its characterisation.

[171] We therefore reject ground 4 of the appeal. Having failed on this ground, it is strictly speaking unnecessary to decide the UFU's ground 5. If the Howden scheme was not an 'income protection policy/scheme' within the meaning of cl 48.1, it does not matter whether it was agreed or not. In any event, we consider that the Full Bench's conclusion that the Howden scheme was not 'agreed' within the meaning of cl 48.1 was correct. Any agreement made in respect of the Howden scheme must be located in the decision made at the Consultation Committee on 21 December 2022, noting that the first order sought by the UFU is premised upon an agreement having been made at this meeting. In the absence of any witness evidence as to what occurred at that meeting, the only evidence about it is contained in the minutes of the meeting. Mr Marshall's proposal was scant and did not contain any description of or even reference to the fundamental features of the Howden scheme. A layperson would be likely to understand the proposal, as described in the minutes and without more, as being that the existing insurance provider and policy would, from 1 January 2023, be replaced by a new policy obtained by Howden as the broker and underwritten by Arch.

[172] Mr Marshall's proposal referred to the UFU and FRV having 'previously met to discuss the new arrangements'. The only evidence about such prior discussions was given by Ms Campanaro and Ms Schroder. The precise terms of the evidence Ms Campanaro gave in her witness statement are noteworthy. Ms Campanaro recounted that she and Mr Marshall had initial discussions with Ms Schroder and Mr Braid (a FRV representative at the 21 December 2022 Consultation Committee meeting) about changing to 'a different provider', to which they did not object. A Consultation Committee meeting on 12 October 2022 endorsed an extension of the existing arrangements until 1 January 2023 to allow time to decide upon 'a new provider'. Ms Campanaro said that, on 27 October 2022, she and Mr Marshall met with representatives of Howden, including Mr Harms, who explained their 'alternative risk scheme using a discretionary trust'. Ms Campanaro then said:

[251]

[173] Ms Schroder gave evidence (for the UFU) via a brief witness statement to the effect that, in the months leading up to the 21 December 2022 meeting, she recalled having discussion with Ms Campanaro 'about a new income protection scheme which the UFU was proposing to have approved by the Consultative Committee under the enterprise agreement', and that this 'involved the use of a discretionary trust'. Ms Schroder also said that while she was a member of the FRV Executive Leadership Team (ELT), it was apparent to her that the ELT members, including Mr Braid, 'also [k]new that the proposed scheme involved the use of a discretionary trust'. Ms Schroder did not identify how this became apparent to her or when the ELT meetings referred to occurred, and she was not cross-examined about this.

[174] Taking this evidence at its highest, it does not come close to demonstrating that the essential features of the Howden scheme were disclosed to Mr Braid, or anyone at FRV, prior to the 21 December 2022 meeting. A mere statement that the new scheme would involve the use of a discretionary trust does not say much about it, particularly when communicated to non-lawyers. There was no reference to it being an 'alternative risk management scheme' rather than involving a conventional insurance arrangement. The further information which Ms Campanaro says she conveyed was incorrect. Her reference to the 'premium' being the same implied the continuation of an insurance arrangement with the same premium, which was of course not the case. Ms Campanaro's further statement that there would be enhanced benefits including 'health insurance cover' was wrong: the Deed does not require the purchase of health insurance cover, and there is no evidence that the Trustee has in fact purchased health insurance for the benefit of FRV employees covered by the Agreement (Mr Harms' evidence was that it makes a fixed contribution to the cost of health insurance taken out by Members). Accordingly, the evidence does not support the proposition that the minutes of the 21 December 2022 meeting are to be read as informed by a prior understanding of the essentials of the Howden scheme. It might be added that there is no evidence that the name 'Howden' was ever mentioned prior to the meeting. Our observations here ought to sound a caution to parties dealing with each other about commercial documents and arrangements ought to involve, at early stages, people with better subject-matter expertise about those areas.

[175] It is likely that Mr Marshall could have provided the Consultation Committee with a draft of the Deed, together with the Side Letter, on 21 December 2022, since they were both executed only two days later, but he did not do so then or later. His letter to Ms Schroder of 30 December 2022, which confirmed the engagement of Howden, provided no further information about the arrangement, and did not mention anything about the Deed which had been executed the week before or the critical role of ARMS as the Trustee. What appears to have followed is that various persons at FRV gradually became aware of the details of the Howden scheme. In her request for further information on 13 January 2023, Ms Schroder demonstrated a more sophisticated understanding of the nature of the new arrangement but, interestingly, gave no evidence about this communication or how she acquired this understanding. In his letter of 23 October 2023, Mr Matthews demonstrates some understanding of the role of the discretionary Trust in the arrangement but still appears to consider it as, primarily, a means by which income protection insurance cover was to be procured for FRV employees. It is only in the correspondence sent by the FRV Commissioner, Mr Freeman, on 1 May 2024 that it becomes clear that FRV has acquired a relatively complete understanding of the Howden scheme based on information which was said to have been recently provided to FRV, noting that the UFU had sent the Deed to FRV's tax advisors on a confidential basis in November 2023.

[176] The UFU contends that FRV's agreement can be inferred from its practical implementation of the Howden scheme following the 21 December 2022 Consultation Committee meeting and its acquisition of knowledge of the essential features of the scheme. However, as already discussed, the evidence does not support the proposition that the Howden scheme was 'agreed', in the sense contemplated in cl 48.1, at the 21 December 2022 meeting, and there is no evidence of any endorsement of the scheme based on knowledge of its essential elements at any later Consultation Committee meeting. It is fair to say that FRV failed to undertake any due diligence as to what it thought it was agreeing to at the 21 December 2022 meeting, and subsequently acquiesced in what was effectively a fait accompli engineered by the UFU until such time as it became aware of the FBT implications of what had been put in place. However, an agreement within the meaning of cl 48.1 cannot be constructed on this basis. We do not consider that the scheme was capable of being agreed to within the meaning of clause 48.1 in the absence of the Deed having been disclosed to FRV at the time or disclosure of material terms of the Deed (which did not occur).

[177] Moreover, FRV continuously remained unaware of critical features of the Howden scheme until well after the proceedings were commenced: it was not until 2025 that FRV obtained direct access to the Deed and knowledge of the existence of the Side Letter, the Advocate Agreement and the payments to the UFU by the Trust. The extraordinary behaviour of the UFU in strenuously resisting, even in the face of Commission orders, the disclosure to FRV of the documents governing the Howden scheme stands squarely against the proposition that FRV has in any sense knowingly agreed to that scheme or that the UFU had provided FRV with sufficient material detail at the relevant times about the scheme to permit a finding that it was 'agreed' to.

[178] Ground 5 of the appeal is therefore rejected. Ground 6 would only arise for consideration if the UFU succeeded on both of grounds 4 and 5, which it has not. It is therefore unnecessary to deal with ground 6 except to observe that consideration as to whether to make the second order sought by the UFU, which would impose new obligations on FRV to make reimbursement payments in respect of the Howden scheme, would plainly require the exercise of a discretion. We agree with the Full Bench's observation that the UFU's regrettable conduct in these proceedings would weigh against the exercise of the discretion in the UFU's favour. We would also add that the UFU's lack of candour concerning the proposed Howden scheme at the 21 December 2022 meeting, which was inconsistent with its obligation under cl 16 of Division A of the Agreement to engage in 'full, meaningful and frank discussion' concerning the proposal, and its refusal ever since to disclose or provide access to the relevant documents and other information in response to reasonable requests from FRV would also count against the exercise of any discretion to require FRV to continue to participate in the Howden scheme.

[179] We would therefore dismiss the appeal if it were within jurisdiction.

United Firefighters� Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (3 September 2025)

At a glance

Court

Decision date

Source

Judgment (256 paragraphs)

United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (3 September 2025)

United Firefighters� Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (3 September 2025)

Parties

Legislation Cited (4)