In United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2018] FCA 1161 the Metropolitan Fire and Emergency Services Board was ordered to pay a penalty of $25 000 for contravening the enterprise agreement (‘the EA’) that was in place between the Board and the Union.

The parties agreed on the facts. Very briefly the issue was that the Board significantly changed the way it would recruit firefighters but did so without consulting the union.  The EA said at clause 15:

Where the employer wishes to implement change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement the provisions of clause 13 will apply.

Clause 13 said:

13. Consultative process

13.1 Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

At [16] North J set out the changes that the MFB proposed to make. These were:

  • Changes to the cut off mark required to pass the VST [the Vocational Selection Test] …
  • The introduction of a cap on the numbers of applications to the recruit selection process, together with a specific quota of men and women to be considered for selection as recruit firefighters (the “Quota”)…
  • The removal of the Mechanical Reasoning component of the VST…
  • The removal of the Order of Merit…; and
  • Removal of the three strikes policy ….

The ‘Order of merit’ was the process where the MFB ranked candidates and made offers to candidates according to their position in the Order.  A person’s position would change as candidates were added to or removed from the list.  The ‘three strikes policy’ was ‘a policy whereby the MFB gave each candidate three opportunities to pass each stage of the recruit selection process’.

The decisions to make these changes were made between July and November 2015 ([16].  At [19]-[20] the parties agreed that:

On or about 25 January 2016, the MFB announced on its website, inter alia, that “the Recruit Firefighter Selection Process is currently under review”.

The MFB had not informed the UFU of the Review prior to the time it was announced on the MFB’s website.

The UFU gave notice of an industrial dispute on the basis that there had been no consultation.  The MFB argued that there had been no breach as the EA did not apply to prospective employees (see [22]).

The matter was listed before the Fair Work Commission. On 29 January 2016, the MFB agreed to make no changes prior to a conference to be held at the Fair Work Commission to resolve the issues.   At [24]-[28] it is said:

On 1 February 2016, the MFB published on its website:

(a)          an invitation for 700 new applications for the MFB Selection Process, with a quota of 350 male and 350 female applicants.

(b)          information about the VST for the upcoming MFB Selection Process. That information did not include reference to the mechanical reasoning test, and stated that the cut off score for the VST would be 45.

By 2 February 2016, the MFB had received 350 applications from male applicants and closed applications to further male applicants. By the time applications closed at 5.00pm on 2 March 2016, 290 women had applied to participate in the MFB Selection Process. In 2013, 1310 applicants applied to participate in the MFB Selection Process, comprising 1206 men and 104 women.

A Consultative Committee meeting was held on 3 February 2016.  The MFB did not place the issue of the Changes on the agenda at that meeting. Consultative Committee meetings were also held on 4 February 2015, 4 March 2015, 1 April 2015, 6 May 2015, 3 June 2015, 1 July 2015, 5 July 2015, 2 September 2015, 7 October 2015, 4 November 2015, 2 December 2015 and 12 January 2016. The MFB did not place the issue of the Changes on the agenda at those meetings.

On 4 February 2016, the solicitors for the UFU sought an undertaking from the MFB that it would abide by the requirement in clause 19.4 of the Agreement that “the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”. On 5 February 2016, the MFB refused to provide such an undertaking.

As at 5 February 2016 the MFB had not consulted with the UFU in accordance with the procedure in clause 13 of the Agreement in relation to the Changes.

There were various dispute resolution processes and meetings to resolve the issues between the parties.   It appears that the outcome of the process was (at [49]-[52]):

In February 2016, the MFB implemented quotas on applications to participate in the MFB Selection Process (350 male and 350 female).

The VST administered by ACER on 12 and 13 March 2016 included the mechanical reasoning test, following a change in position by the MFB as a result of the discussions before Commissioner Roe.

ACER marked the VST, on the instructions of the MFB, using both the cut off score of 50 on the old scale and the cut off score of 45 on the new scale.

Candidates who passed the VST on either the cut off score of 50 on the old scale, or the cut off score of 45 on the new scale, proceeded to the next stage of the selection process. The MFB advised candidates who had met only one of the cut off scores of 50 on the old scale or 45 on the new scale that they had provisionally passed the VST, subject to the outcome of this proceeding. Of this group, two candidates passed the remaining stages of the selection process but none were selected for the July 2016 recruit training course.

The issue before the Court was not whether the changes to the recruitment process were good, bad or indifferent, but the failure to consult with the UFU as the MFB had agreed to do.  The MFB did agree that they had failed to cmply with the EA and the parties agreed that the appropriate remedy was the penalty of $25 000 to be paid to the UFU.  North J said (at [58]-[60] but incorrectly numbered in the judgment as [8]-[10]):

The aim of the imposition of the civil penalty is to act as a deterrent to the respondent and to other parties to enterprise agreements to fail to adhere to the terms of those agreements.  There is no evidence that the respondent has contravened the Act on any other occasion.

In setting the penalty, it is also significant that, except as to the gender quota issue, any harm which might otherwise have resulted from the respondent’s failure to consult was limited. The applicant was prompt to commence proceedings and obtained orders to prevent the respondent taking further action unless it complied with the provisions of the enterprise agreement.

The proposed penalty is about 50 per cent of the maximum penalty available. The agreement of the parties properly reflects the seriousness of the conduct of the respondent. The amount proposed is appropriate in all the circumstances. For those reasons, I will make the orders which the parties seek by consent.

Conclusion

Parties to an enterprise agreement are expected to meet the terms of their agreement.  See also Industrial Relations and asking the CFA to stick to its bargain (January 26, 2015).