| FWCA 1023|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Metropolitan Fire and Emergency Services Board
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIREFIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF AGREEMENT 2016
Fire fighting services
DEPUTY PRESIDENT GOSTENCNIK
MELBOURNE, 18 FEBRUARY 2019
Application for approval of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016; undertakings provided; whether undertakings meet concerns about terms of the agreement contravening s.55; undertakings meet concerns; agreement with undertakings approved.
 The Metropolitan Fire and Emergency Services Board (MFB) applied under s.185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement titled the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (Agreement). The Agreement was made on 16 March 2018 and the application was lodged with the Commission on 3 April 2018. The United Firefighters Union of Australia (UFU) was a bargaining representative for the Agreement. It supports the approval of the Agreement and has given notice pursuant to s.183 of the Act that it wants to be covered by the Agreement.
 The relevant background and proceedings history are set out in my earlier decision dealing with the application for approval of the Agreement 1 and need not be repeated here. In that decision I concluded that:
• the Agreement does not include any discriminatory terms; 2
• the Agreement does not include any objectionable terms and the requirement in s.186(4) is met; 3
• the Agreement is predominantly about matters that pertain to the requisite relationships; 4
• the Agreement passes the BOOT and the requirement in s.186(2)(d) is met; 5
• I was not satisfied that particular terms of the Agreement do not contravene s.55 of the Act and that the requirement in s.186(2)(c) has been met. 6 The terms of the Agreement that were of concern were:
• Clause 43.3;
• Clause 43.4;
• Clause 43.6.3; and
• Clause 44.3.1.
• save for the concerns in relation to s.55, I was satisfied that the approval requirements in ss.186 and 187 have been met. 7
 I also noted that the concerns identified in the decision were amenable to undertakings. I therefore allowed MFB a period of 21 days (which was subsequently extended) within which to provide any undertakings it wishes and to seek the views of the UFU before filing any undertaking.
 Following correspondence between the MFB and my Chambers in relation to my concerns, on 14 February 2019, MFB proposed undertakings, a copy of which is attached in Annexure A.
 It is necessary to examine the relevant provisions concerning the proffering and acceptance of undertakings and then to consider the nature of the concerns sought to be addressed by the undertakings in their statutory context in order to determine whether the undertaking meets that concern.
 The capacity of the Commission to accept an undertaking in relation to the approval of an enterprise agreement is dealt with in s.190 of the Act. Section 190 is engaged relevantly if an application for approval of an agreement has been made under s.185 and the Commission has a concern that the agreement does not meet the requirements set out in ss.186 and 187. 8 It is uncontroversial in relation to the Agreement that there is an application for its approval under s.185 and that I have concerns that the Agreement does not meet, inter alia, the requirement in s.186(2)(c) of the Act.
 Section 190(2) confers discretion on the Commission to approve an agreement under s.186 if satisfied that acceptance of the undertaking, subject to the fetters in s.190(3), meets the concern. It is clear, therefore, that the undertaking proffered must meet the concern that the agreement does not meet one or more of the identified requirements set out in ss.186 and 187 of the Act. The relevant requirement here, about which there is a concern, is the requirement that the terms of the Agreement do not contravene s.55 of the Act.
 By s.190(3), the Commission may only accept a written undertaking if satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in a substantial change of the agreement. Section 190(4) prevents the Commission from accepting an undertaking unless it has sought the views of each person who the Commission knows is a bargaining representative for the agreement. Finally, an undertaking that is proffered must meet the signing requirements prescribed by regulations. 9
 The process for proffering, accepting undertakings, assessing whether an accepted undertaking meets the requisite concern, and considering whether to approve an enterprise agreement may be summarised, chronologically as follows.
 First, there must be made an application for approval of an enterprise agreement.
 Secondly, the Commission must have a concern that the agreement does not meet one or more of the requirements set out in ss.186 and 187 of the Act. It should go without saying that the relevant concern needs to be identified by the Commission and communicated to the applicant for the approval of the agreement, and where the applicant is a bargaining representative for the agreement which is not the employer, also communicated to the employer or employers covered by the agreement. Only an employer or employers covered by an agreement can give an undertaking.
 Thirdly, there must be a written undertaking from one or more of the employers covered by the agreement and that undertaking must meet the signing requirements.
 Fourthly, the Commission must assess and be satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement.
 Fifthly, before accepting an undertaking the Commission must seek the views of known bargaining representatives for the agreement.
 Sixthly, if the undertaking is accepted the Commission must be satisfied that the accepted undertaking meets its concern before it may approve the agreement.
 Seventhly, there is a residual discretion to be exercised whether to approve the agreement with the undertaking that has been accepted and that meets the identified concern.
 The undertakings proposed in Annexure A meet my concerns. These undertakings do not cause any financial detriment to any employee covered by the Agreement nor do they result in any substantial change to the Agreement. The UFU has advised that it supports the undertakings. 10 I accept the undertakings.
 With the undertakings attached to this decision as Annexure A, and for the reasons stated, I am satisfied that each of the requirements of ss.186, 187,188 and 190, as are relevant to this application for approval, have been met. I am also satisfied that with the undertakings, the Agreement no longer contravenes s.55 of the Act. The Agreement is approved.
 In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the UFU.
 The date of the approval is 18 February 2019 and, in accordance with s.54, the Agreement will operate from 25 February 2019. The nominal expiry date of the Agreement is 1 July 2019.
Printed by authority of the Commonwealth Government Printer
1  FWC 106
2 Ibid at [355(a)]
3 Ibid at [355(b)]
4 Ibid at [355(c)]
5 Ibid at [355(d)]
6 Ibid at [355(f)]
7 Ibid at [355(e)]
8 Fair Work Act 2009 (Cth) s.190(1)
9 Ibid at s.190(5)
10 Email from Davies Lawyers on behalf of UFU dated 15 February 2019 at 07.18am