On 3 April 2018 the Metropolitan Fire and Emergency Services Board (MFESB) made an application pursuant to s 185 of the Fair Work Act 2009 (FW Act) for the approval of the Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2016 (Agreement).  On 11 April 2018 Craig Laundy MP, Minister for Small and Family Business, the Workplace and Deregulation (Minister) made an application (under s 615A) to refer the question of whether the agreement should be approved to the Full Bench of the Commission on the basis that the agreement may contain unlawful terms.

In Metropolitan Fire and Emergency Services Board [2018] FWC 2441 Vice President Hatcher refused the Minister’s application.  He said (at [14]):

The Minister’s submissions do not with precision identify the grounds of his intended opposition to the approval of the Agreement, but appear to involve the contention that the restrictions on the availability of part-time employment in the Agreement would be indirectly discriminatory against women, people with family or carer’s responsibilities or persons with a disability, and thus would constitute a discriminatory term, and that provisions in which UFU approval of certain arrangements is required, the UFU only has the right to nominate a member of the Disputes Panel, and certain committees only provide for UFU membership (on the employee side) are terms that require or permit adverse action, and are thus (presumably) objectionable terms as well as perhaps discriminatory terms.

Without going into details of the agreement or the Minister’s objections, Vice President Hatcher found that resolution of whether there was unlawful discriminatory provision in the agreement would require evidence and evidence is better called before a single member rather than a full bench (see [22]).  Further, the Minister’s claim that the clauses that gave the UFU the right to nominate a member of the disputes panel is discriminatory had been dealt with in earlier cases.  Hatcher VP said (at [23]):

… to the extent that the Minister’s case concerns those provisions of the Agreement which mandate a particular role for the UFU, it raises issues which have been dealt with in Federal Court decisions before. In Klein [Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402] the Court rejected a claim that provisions of an earlier MFESB enterprise agreement concerning the UFU’s right to nominate persons to comprise the Consultative Committee constituted objectionable terms, and in UFU v CFA [United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1; see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (February 12, 2014) for a discussion of the first instance decision] the Full Court also rejected claims that provisions in another firefighters’ enterprise agreement which gave the UFU the right to determine the membership of two workplace committees authorised discrimination against non-union staff. No novelty therefore attaches to this aspect of the Minister’s foreshadowed case.

Finally if, after the matter was dealt with by a single member, the Minister had various rights to appeal the decision to the Full Bench of the Commission ‘Therefore any public interest concerns may be addressed by the use of this mechanism’.

In the circumstances VP Hatcher found that it was not in the public interest to refer to the matter to a Full Bench and the Minister’s application was refused.  The matter will now be determined by a single member of the Commission.