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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER WILSON

 

C2022/2043

 

s.739 - Application to deal with a dispute

 

United Firefighters' Union of Australia

 and

Fire Rescue Victoria

(C2022/2043)

 

Melbourne

 

10.00 AM, MONDAY, 29 AUGUST 2022


PN1          

THE COMMISSIONER:  Good morning, parties, if I can start by taking the appearances, please.

PN2          

MR H BORENSTEIN:  Morning, Commissioner, I appear with Mr Bromberg for the applicant, or I seek permission to appear.

PN3          

THE COMMISSIONER:  All right, thank you, Mr Borenstein.  Parties, in respect of permission, it is granted to you all for the reasons I will outline in my decision.

PN4          

MR M HARDING:  Commissioner, I seek permission to appear with Mr Minucci for the respondent.

PN5          

THE COMMISSIONER:  Thank you, Mr Harding.

PN6          

MR C O'GRADY:  Good morning, Commissioner, my name's O'Grady, initial C, and I seek to be heard on behalf of the Minister for Emergency Services.  I understand the Commission has received our application and has indicated that you are prepared to hear the Minister in respect of this application.

PN7          

THE COMMISSIONER:  I'm prepared to hear the request.

PN8          

MR O'GRADY:  Sorry.

PN9          

THE COMMISSIONER:  I didn't mean to go further than that with our communication.

PN10        

MR O'GRADY:  Yes.

PN11        

THE COMMISSIONER:  I will turn in a moment to Mr Borenstein and seek his views, I suppose.

PN12        

MR O'GRADY:  Yes, thank you, Commissioner.

PN13        

THE COMMISSIONER:  Thank you.  Mr Borenstein, does your client oppose the intervention of the Minister?

PN14        

MR BORENSTEIN:  Vigorously, Commissioner.

PN15        

THE COMMISSIONER:  Vigorously?  All right.  Mr Harding, does your client have any views on the subject?

PN16        

MR HARDING:  We don't have a submission to make on that subject.

PN17        

THE COMMISSIONER:  All right.  In that case, Mr O'Grady, I should hear you.

PN18        

MR O'GRADY:  Yes, thank you, Commissioner.  Commissioner, hopefully the Commission received in chambers this morning a Form F1 application filed by the Minister and appended to that were an outline of submissions that has been prepared on behalf of the Minister.

PN19        

As the Commission would be aware from that outline of submissions, the Minister is the responsible minister for Fire Rescue Victoria.  The Minister has been apprised of this matter and has indicated that, in her view, the agreement which FRV is proposing to enter into with the UFU and is the subject of this application is an agreement that FRV cannot lawfully enter into and she has formally indicated that and, as I understand it, an affidavit has been filed with the Commission appending the letter from the Minister in which those views have been expressed.

PN20        

In those circumstances, it's the submission of the Minister that she is somebody whom the Commission should hear in respect of this application pursuant to the general discretion conferred by section 590.  As the Commission would be aware, the Commission can inform itself in any way that it sees fit, and in circumstances where the responsible minister has a view as to the Commission's jurisdiction to make the orders and, indeed, the lawfulness of FRV entering into an agreement of the type that is the subject of the relief sought in this application, in my respectful submission, the pre-conditions for the exercise of that discretion are met and the Commission should hear the Minister in respect to those matters.

PN21        

The Commission will see we have outlined the various concerns in bullet form in paragraph 1 of the outline of submissions that we have filed.  They are matters, we would submit, of substance that go both to the jurisdiction of the Commission but also to the lawfulness of the agreement that is the subject of the relief in this proceeding.  We have also addressed the considerations that the Commission is to have regard to pursuant to the exercise of the discretion in section 590 in paragraphs 3 through to 5 of the outline of submissions.  We don't understand there to be any dispute as to those principles and the relevance of those principles.  It's obviously the application of those principles in the circumstances of this case where any dispute would lie.

PN22        

We do note in paragraph 5 of the outline that a not dissimilar issue arose in respect of an application by the Metropolitan Fire and Emergency Service in 2018.  That was the application to have the predecessor to Division A of this agreement approved by the Commission.  It was heard by Gostencnik DP and, in that proceeding, the Commonwealth Minister and the Victorian Equal Opportunity Commissioner sought to intervene because they sought to raise matters going to the lawfulness of the agreement and whether or not the Commission had the capacity to enter into an agreement in the terms sought and leave was granted pursuant to section 590 to enable the Commonwealth Minister and the Victorian Equal Opportunity Commissioner to put submissions in respect of the issues that they sought to agitate.

PN23        

In my respectful submission, in circumstances where you are here confronted with an application raising not dissimilar issues by the relevant State Minister, it would be appropriate for the Commission to grant leave for the Minister to be heard in respect of the application.

PN24        

I can hand up a copy of the decision of Gostencnik DP in the MFB case, if that would be of assistance.

PN25        

THE COMMISSIONER:  It would, Mr O'Grady, thank you.  I have it here on my laptop, so there's no need for me to have a copy at this stage.

PN26        

MR O'GRADY:  Yes.  You will see that there's no great reasoning, but what the Deputy President did was he set out a series of directions so as to enable the issues that were sought to be ventilated by the Commonwealth Minister and the Equal Opportunity Commissioner to be heard in that proceeding and then, indeed, they were given leave to adduce evidence and to put extensive submissions as to the capacity of the Commission to approve that agreement.  In my submission, that's consistent with the principles that we have addressed in the outline of submissions.

PN27        

As I have also said, in circumstances where here you are concerned with an application of the relevant State Minister, the case is even stronger, in my submission, for leave being given for my client to put submissions as to (a) the jurisdiction of the Commission and (b) the lawfulness of FRV entering into an agreement of the type that is the subject of the relief sought in this proceeding.

PN28        

Those are the matters I would seek to raise in support of the application to be heard.

PN29        

THE COMMISSIONER:  All right, thank you.  Mr O'Grady, just for the purposes of the file, I will mark your submission at this stage, if that's convenient.

PN30        

MR O'GRADY:  Yes.

PN31        

THE COMMISSIONER:  I will mark the outline of submissions filed today, 29 August 2022, as exhibit Minister 1.

EXHIBIT #MINISTER 1 OUTLINE OF SUBMISSIONS OF MR O'GRADY (ON BEHALF OF THE MINISTER FOR EMERGENCY SERVICES) DATED 22/08/2022

PN32        

MR O'GRADY:  Thank you, Commissioner.

PN33        

THE COMMISSIONER:  Mr Harding, did you wish to say anything about the application?

PN34        

MR HARDING:  Not at this stage, Commissioner.

PN35        

THE COMMISSIONER:  Thank you.  Mr Borenstein?

PN36        

MR BORENSTEIN:  Commissioner, we received the outline of submissions about five minutes before 10 and we haven't had a chance to review them in any sort of depth.  We had anticipated that Mr O'Grady may have gone through them in some more depth than he has and that may have assisted us in our understanding of what is being put.  In the circumstances, we would ask that you stand the matter down for an hour to allow us to go through these submissions and prepare our response to them, and it may be that we would want to draw your attention to some authorities which we would prepare in that period and have them available.

PN37        

MR HARDING:  Commissioner, can I indicate we would join in that aspect of Mr Borenstein's submission that we stand it down for an hour.

PN38        

THE COMMISSIONER:  All right, thank you.  I think that's appropriate.  It's presently about 10.20.  Maybe if we adjourn until 11.30, would that be convenient, Mr Borenstein?

PN39        

MR BORENSTEIN:  Yes, that's perfect.

PN40        

THE COMMISSIONER:  All right, we will adjourn.

SHORT ADJOURNMENT                                                                   [10.19 AM]

RESUMED                                                                                             [11.29 AM]

PN41        

MR O'GRADY:  Commissioner, before you hear from my learned friend, can I just address a housekeeping matter.  I did refer you to the decision of Gostencnik DP in the application by the Metropolitan Fire and Emergency Services Board.  Could I provide to the Commission both a hard copy of that decision but also, perhaps more helpfully, the substantive decision of the Deputy President when he decided to approve the agreement, and you will see from that that there, notwithstanding the fact that both the MFB and the UFU were opposed to intervention by the Minister and VEOHRC, the Deputy President, having granted permission to intervene pursuant to section 590, then went on and engaged with the substantive issues that were raised by both the Commonwealth Minister and VEOHRC in that proceeding.

PN42        

THE COMMISSIONER:  All right, thank you, Mr O'Grady.  May I presume that copies have been provided to the other counsel?

PN43        

MR O'GRADY:  Yes, they have.

PN44        

THE COMMISSIONER:  All right, thank you.  Yes, Mr Borenstein?

PN45        

MR BORENSTEIN:  Commissioner, we oppose the Minister's application to be heard.  The application that the Minister makes is is under section 590 and that is a section which gives the Commission discretionary powers, and that involves the Commission exercising a discretion as to which powers it will use in any particular case, and the exercise of that discretion will of course be informed by the nature, legal and factual, of the case that is before the Commission for decision.

PN46        

The present case, as you will be well aware, is a private arbitration.  It is a proceeding which has been distinguished from the normal types, if I can use that phrase, the normal types of cases that come before the Commission by reason of a statutory jurisdiction that is given to the Commission.  The High Court has explained that these types of arbitrations come before the Commission as a result of agreement between the parties and it is only if there is an agreement between the parties that the Commission can proceed to deal with these matters as an arbitration.  Section 739 facilitates that but doesn't provide the foundation for the Commission's power to deal with these matters.

PN47        

Can I hand up to you, Commissioner, an extract from the judgment of the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission 203 CLR 645.  I have given you the front page and the relevant paragraph, which is on the final page, which is paragraph 31.  This makes the point.  It's a well-known passage; I'm sure you've seen it before.  You will see - this is on page 658 of the report and it reads:

PN48        

Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration.  Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force.  In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force.  Rather, its effect, if any, depends on the law which operates with respect to it.

PN49        

To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration.

PN50        

That is what we have got here, Commissioner.  We're here under a clause in an enterprise agreement which has authorised the parties to come to you and ask you to arbitrate on an outstanding dispute.  It's a private arbitration, and the point that we seek to make is that when you come to consider which of the powers under section 590 might be used, that decision must be informed by the fact that this is a private arbitration and a private arbitration borne out of a consent by the parties to the arbitration.  The parties to the arbitration are the UFU and the FRV, not the Minister.

PN51        

The dispute resolution clause in the agreement, which is attached to F10, doesn't include any role for the Minister.  The decision which you make on this arbitration will be binding on the UFU and the FRV, not the Minister, and so we submit that when you come to decide which of the powers under section 590 you may wish to use, noting the character and the nature of the proceeding before you, we say it is inappropriate to allow an outsider to the arbitration to insert herself or itself or himself for the purpose of making submissions on the merits of the arbitration, making submissions which it will not be bound by as a result of the arbitration.  We say that's entirely antithetical to the idea of a private arbitration created by consent of the parties.

PN52        

The process or the function which the Commission exercises in a private arbitration has been distinguished from the process which the Commission exercises when exercising powers granted directly by the statute.

PN53        

In a judgment of the Full Court in AMWU v ALS, the Full Court held that the powers of judicial review of the actions of a Commonwealth officer in exercising the statutory functions under a statute don't apply to the exercise of powers in an arbitration.  I am afraid I only have one copy of this to hand up to you and we will give our friends copies later on.  This is reported in Volume 235 of the Federal Court Reports at page 305 and the relevant passages are at paragraphs 85 and 86.  If you would go to paragraph 85, which is on page 338 of the report, you will see that the Court says:

PN54        

The effect of the High Court's decision in Gordonstone, and that in TCL, is that an arbitrator's power to resolve a dispute arises out of the agreement to arbitrate.

PN55        

Gordonstone is that High Court case which I handed up to you:

PN56        

It follows that to the extent that FWC exercises power derived from such an agreement, it is not exercising government powers and so is not susceptible to the issue of the constitutional writs.

PN57        

You will be familiar, Commissioner, with the way in which the Courts review the processes of the Commission by the issue of those sorts of writs where there's an error of jurisdiction and so on.  What the Court is saying here is that doesn't apply when there's a private arbitration; it's separate from the normal processes in the Commission.  Then it goes on to say:

PN58        

However, as the Union has submitted, in carrying out the arbitrator's function FWC may exercise a power conferred upon it by statute.  Section 739(3) assumes such a possibility.  We have previously referred to the powers conferred upon FWC by ss 590 and 595 of the Fair Work Act.  Section 595(4) seems to permit FWC to exercise statutory powers in the course of a private arbitration.

PN59        

And that's the point we're making to you this morning, that you have those powers, but how you use them and which of them has to be informed by the function that you are doing.  They go on to say:

PN60        

There may be room to argue that such exercise is pursuant to the statutory conferment of power.  However it might also be argued that the availability of the power is a function of the agreement to arbitrate.  It is possible that review by way of the constitutional writs may be available to third parties (e.g. persons summoned as witnesses) but not against parties to the arbitration agreement.  We need not take this matter further.

PN61        

We simply give you that reference to make the point, to emphasise the point that a private arbitration stands apart from the normal decision-making processes that apply under the Commission.  Section 590 is there as a provision which applies to all processes before the Commission, but the Commission has to be mindful of what process it's actually engaged in when it seeks to use the various parts or any of the parts of section 590.

PN62        

The submission we make as a result of that analysis is that because this is a private arbitration between consenting parties and binding on those parties and not the intervener, the Commission should not allow an intervener, who seeks to make submissions on the merits of the case, to be heard and, as I say, that is contrary to the concept of private arbitration as it has been described.

PN63        

The intervener is not bound by the decision on the arbitration and they shouldn't be permitted to make submissions which would affect the decision that is binding on the other parties in circumstances where the other parties are represented, present and able to make their own submissions on the issues in dispute between them and which they have submitted to the Commission by consent for arbitration.

PN64        

The usual test, which Mr O'Grady seeks to invoke, is inapplicable in a private arbitration.  The case to which Mr O'Grady refers and which he has just recently handed up to you, the decision of Gostencnik DP, is unhelpful completely.  It is not a case of an arbitration; it is an agreement approval and different powers and different dynamics are at play in such a decision, and so whatever the Deputy President did in that case doesn't impact on and doesn't inform what is the appropriate course in a case like this of a private arbitration.

PN65        

The importance of stressing the fact that this is a consent process between the parties who have agreed on particular matters that are to be decided by the Commission is underscored by the range of issues which Mr O'Grady seeks to raise in his outline of submissions and which you will not find in any of the submissions of the parties to the arbitration and are not matters which the parties to the arbitration have asked the Commission to decide, and so it's entirely inappropriate to allow that sort of an intervention which seeks to derail the course of the consensual arbitration that the parties have put before the Commission.

PN66        

We don't want to get into a detailed debate about the actual submissions that the Minister wishes to make.  We assume that they have been put forward to show you that there are submissions that they do wish to make.  What we would like to do is simply to indicate to you in a summary way that those submissions are, in any event, without merit.

PN67        

The starting point for that is - sorry, I will go back a step.  The submissions appear to reflect the concerns which were expressed by the Minister in her letter on 17 August, which is in the hearing book at page 132.  You may remember, Commissioner, that it seems that her interest stems from a view that she had that the agreement, the service agreement, which the parties have been negotiating for some months now without objection, somehow requires her consent under a section of the Fire Rescue Victoria Act.

PN68        

Our friend has not addressed that in his submission in any sort of detailed way.  Can I just hand up to you an extract of the Act with a copy of the section to make the point that we want to make about how the Minister's claim to be required to give consent is quite misconceived and contrary to the Act.  We have handed up to you a copy of section 25A, which is on page 51 of the Act.  You will see it is headed 'General powers of Fire Rescue Victoria'.  Subsection (1) gives the FRV the sort of general powers which you would expect to carry out its functions, and then subsection (2) is the relevant subsection and it states:

PN69        

Without limiting or derogating from the generality of the powers of Fire Rescue Victoria under this Act, the powers of Fire Rescue Victoria include the power to -

PN70        

(a) enter into agreements or arrangements with any person or body for the provision of goods or services to Fire Rescue Victoria.

PN71        

I don't think it can be argued that a service agreement of the kind which you've seen which is proposed to embody the resolution of this dispute at the request of FRV is anything other than an agreement or arrangement with the company that's been formed for the provision of goods or services to Fire Rescue Victoria.  The services that are to be provided, as you have seen in your dealings with this matter, are the provision of registration services for firefighters employed by FRV.

PN72        

Then you will see it goes on at paragraph (b):

PN73        

Subject to subsection (3), enter into agreements or arrangements with any person or body for the provision of goods or services by Fire Rescue Victoria.

PN74        

That clearly doesn't apply here.  (c) we don't need to look at and (d) we don't need to look at.  Then (e):

PN75        

Subject to subsection (3), form, participate in the formation of, or be a member of a body corporate, association, partnership, trust or other body.

PN76        

And (f):

PN77        

Subject to subsection (3), enter into a joint venture agreement, shareholders agreement or unitholders agreement with any other person or body.

PN78        

Now, those two provisions are subject to subsection (3), so if we go to subsection (3) on the next page, we see that it provides:

PN79        

Fire Rescue Victoria must obtain the written consent of the Minister before —

PN80        

(a) entering into any agreement or arrangement with any person or body for the provision of goods or services by Fire Rescue Victoria -

PN81        

So that doesn't apply:

PN82        

(b) forming, participating in the formation of, or becoming a member of a body corporate -

PN83        

et cetera.  That doesn't apply.  There is no evidence, and the Minister has no evidence and you have not seen in any evidence in all your dealings with this, that FRV has formed or participated in the formation of the company or become a member of it.  You will recall that at an earlier stage in various meetings before you, Mr Catanese, on behalf of FRV, raised the question of not knowing what the company would be or what the structure of the company would be and withholding commitment to enter into any agreement with the company until the company was identified and formed, and that shortly thereafter we informed you that, at the instigation of the UFU, a company was registered, and there is no evidence that is advanced by the Minister or anyone else that the company was formed other than at the initiation and instigation of the UFU, and so (b) Is not made out:

PN84        

(c) entering into any joint venture agreement, shareholders agreement or unitholders agreement.

PN85        

Well, there is just nothing to suggest anything of that kind.

PN86        

That being the case, the suggestion by the Minister that somehow or other her consent was required completely falls flat.  It is completely unsupported by the terms of the statute and any material that's been advanced on her behalf or, indeed, any material that is before you from any source.  So, we say that the foundation of the Minister's interest in this matter is non-existent and her claim about section 25A should be dismissed out of hand.

PN87        

What we submit the Minister is trying to do is that because she has come to be aware that section 25A doesn't support her interest in this matter is to try and do indirectly what she can't do directly in relation to this contract.

PN88        

There is an old principle, a Latin maxim that's been accepted by the Courts over a long period of time and been cited in this Commission as well to the effect that it's impermissible to something indirectly which you can't by statute do directly.

PN89        

If I can hand up to you an extract from the judgment of the Commission in CFMEU v Queensland Bulk Handling and I will take you to the relevant passage.  You will see in paragraph 51 - and this is a decision of a five-member Bench of the Commission - you will see in paragraph 51 that the Bench refers to the judgment of the High Court in Caltex Oil v Best, and the second paragraph of that extract is:

PN90        

The principle that it is not permissible to do indirectly what is prohibited directly, which is expressed in the (Latin) maxim is a more traditional general statement of the same purpose.

PN91        

They go on in 52 that the principle was applied by the predecessor to the Tribunal, the Australian Industrial Relations Commission, in Family Court Counsellors, and so it is a maxim that has a history in this Commission and in the Courts and we say that when you look at the substance of what the Minister is trying to do here, she cannot stop the agreement by withholding her consent and so she seeks to come here and make the same points in the guise of a putative intervener, and we say that where the statute under which she is operating, that is the Fire Rescue Victoria Act, doesn't permit her to preclude the entry into this agreement, the Commission should not allow her intervention to achieve that same purpose through the side door.

PN92        

We also draw attention as a matter of interest to the provision that is made in the Fair Work Act for the involvement of Ministers of the Crown in section 597A.  That is a provision which expressly and explicitly allows for Ministers of the State to make submissions in proceedings before the Commission but limits the type of circumstances in which that can be done, and you will see that the process before the Commission must be before a Full Court and that it must be in the public interest.

PN93        

There is an argument to be had that where the Minister seeks to come along and intervene in a matter whether section 597A has covered the field or not.  We don't need to have that argument this morning, but we draw attention to the fact that this application is not made under section 597A.

PN94        

We say that, for those reasons, the application that the Minister seeks to have intervention should be rejected.

PN95        

For the sake of completion, can we also say to you that the arguments which are sought to be advanced, which are outlined in the outline of submissions, are all highly contentious and they are all matters which have not been raised by way of objection by the FRV throughout the whole process of dealing with this dispute.  They raise concerns which the FRV has not expressed or raised at any time in the dispute.

PN96        

We also draw attention to the fact that many of these concerns about what will happen if there is a registration board overlook the fact that there is already a registration board called an interim board that has been established in the FRV and that has been operating since approximately July of last year, and you have not heard from the FRV any complaints about the interference of the functions of that board or the matters that that board has put in place, you have not heard any complaints from the FRV throughout the time we have been before you of any adverse effects, and certainly not of any adverse effects of the kind which the Minister now seeks to raise as theoretical propositions.

PN97        

Can I then just briefly deal with the concerns which the Minister has raised in very short compass just to indicate to you that there is a proper answer to each of these things.

PN98        

Can I firstly say that the arguments that are sought to be raised about matters not pertaining is completely misconceived and based on a complete misconception of what the dispute is about.  The dispute is about the establishment of a registration system for firefighters in the FRV.  The Form 10 which we filed seeks relief at paragraph 3.1 for the FRV to establish a registration board in accordance with the enterprise agreement.  That is the relief we seek, that is the dispute.

PN99        

Now, there are aspects of the dispute that need to be addressed, but they don't detract from the matter that is in dispute, which is the establishment of a registration board, and the question about matters pertaining is to be determined by reference to the substantive claim that is made.

PN100      

There is authority that explains this and there are two decisions that I want to take you to.  The first one is a decision of the High Court in a case called Re Cramm.  We only have one copy, I'm afraid, Commissioner.  I'm sure Mr O'Grady knows this case very well.  This was a case which involved a dispute about manning and recruiting and the mode of recruitment.  There had been a system in place where the union had kept a list of unemployed miners and the agreement was that recruitment would be done from that list in the first instance and then the company sought to change that and that gave rise to a dispute.  There were arguments about whether the particular Tribunal which was exercising powers under a State Act and a Commonwealth Act at the same time was amenable to judicial review, and that's all incidental to this problem.

PN101      

There was also an argument about whether a dispute about the recruitment of people and this recruitment process was an industrial matter pertaining to the relationship of employers and employees.  You will see, at page 133 of the judgment, halfway down the page, the Court accepted:

PN102      

Manning and recruitment, in particular a dispute about mode of recruitment, as that is the correct characterisation of the dispute here, is not directly connected with the relationship between employer and employee.

PN103      

They go on to talk about the arguments of the respondent that they were dealing with a matter of policy and not the actual implementation, and then they go on at page 134 to deal with this concept of matters pertaining.  At the top of the page, they say:

PN104      

The words 'pertaining to' mean 'belonging to' or 'within the sphere of' and the expression 'the relations of employers and employees refers to the relation of an employer as employer with an employee as employee.

PN105      

Then they go on:

PN106      

As Dixon CJ noted in The Queen v Findlay, although the possibility of an indirect and consequential effect is not enough, the conception of what arises out of or is connected with the relations of employers and employees includes much that is outside the contract of service, its incidents and the work done under it.  The Chief Justice went on to say:

PN107      

'Conditions affecting the employee as a man who is

PN108      

called upon to work in the industry and who depends

PN109      

on the industry for his livelihood are ordinarily

PN110      

taken into account.'

PN111      

Then they go on to quote from the joint judgment of Isaacs and Rich JJ in the Prahran and Malvern Tramway case where their Honours say:

PN112      

The 'conditions' of employment include all the

PN113      

elements that constitute the necessary requisites,

PN114      

attributes, qualifications, environment or other

PN115      

circumstances affecting the employment.

PN116      

We emphasise the word 'qualifications' there.

PN117      

Can I then ask you to turn to the next page, page 135.  In the second-last paragraph:

PN118      

A dispute about the level of manning is a good example.  It has a direct impact on the work to be done by employees -

PN119      

I'm sorry, I should start with the sentence before which gives context to this.  In the last sentence of the main paragraph, their Honours say:

PN120      

Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an 'industrial matter'.

PN121      

A dispute about the level of manning is a good example.  It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work.

PN122      

Then we emphasise the next part:

PN123      

So also with the mode of recruitment of the workforce.  The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards.  Employees, as well as management, have a legitimate interest in both these matters.

PN124      

We say that a process for registration of firefighters based on their competencies and qualifications is exactly the same and has exactly the same impact on the conditions of work as what their Honours referred to there.  The employees have an interest in the workforce being properly qualified and skilled and, to the extent that the registration scheme deals with that, it is clearly a matter pertaining to the relationship as required.

PN125      

The Minister has focused on this idea about the contract and saying, 'Well, the signing of a contract is not a matter pertaining.'  The answer to that, Commissioner, is that when you are addressing the question of whether there is a matter pertaining that is to be determined, you look at the actual matter and you don't unpack every screw and every bolt and seek to say, 'Well, that is not a matter.'  There are many things that will be incidental to the implementation of a matter that is pertaining - there may be machinery positions or things of that kind - and that was recognised in the High Court in the Electrolux case.  Again, we only have the one copy, I'm afraid.  We weren't prepared to have - sorry, we have got some copies.

PN126      

In the Electrolux case, which is in Volume 221 of the Commonwealth Law Reports at page 309, McHugh J, at page 350, discussed the idea of ancillary or incidental machinery provisions being part of a dispute about matters pertaining.  You will see that commencing at paragraph 96, he refers to the judgment of Merkel J in the first instance of that decision to the effect that the section didn't require all of the terms of the proposed agreement to pertain to the requisite relationship and that he recognised that there may be machinery provisions, et cetera, that wouldn't detract from the overall agreement being about matters pertaining.

PN127      

At paragraph 97, McHugh says:

PN128      

Thus, Merkel J distinguished between ancillary, incidental or machinery provisions in an agreement - which for the purposes of certification need only relate to a matter pertaining to the employment relationship - and a substantive matter that is both discrete and significant - which must pertain to the employment relationship.  Such an approach is consistent with the decision of this Court in Shell and an obiter statement of Stephen J in Portus about an ancillary aspect of a claim.

PN129      

I don't know if you're familiar with the Shell case, but the Shell case was a case where the union sought to raise a dispute requiring the company to take steps in relation to a superannuation fund and movement of funds between different funds and so on, and there was an argument about whether that could constitute a dispute about matters pertaining.  The Court held that the dispute was about superannuation and superannuation was a matter pertaining and, insofar as a dispute called on the companies to do particular things vis-ΰ-vis the trustees, that that could be regarded as covered by that dispute in the same way as McHugh J indicated here.

PN130      

Interestingly, in the Explanatory Memorandum, this judgment is relied on - Explanatory Memorandum for section 172 - I'm sorry, I think it's for section 253 - the Explanatory Memorandum refers to the need for permitted matters to be identified and goes on to say that this wouldn't prevent an enterprise agreement from containing other valid terms where the terms are ancillary, et cetera, and they refer to - - -

PN131      

THE COMMISSIONER:  Mr Borenstein, can you just give me the paragraph number, please?

PN132      

MR BORENSTEIN:  I am going to hand it up to you.

PN133      

THE COMMISSIONER:  Okay, thank you.

PN134      

MR BORENSTEIN:  It's paragraph 666 and I will just hand this up to you.  The point being that in making these references to 'permitted matters', the Explanatory Memorandum directly cited this passage of McHugh which I have just read to you as confirmation of the ability to have incidental and machinery matters without detracting from the characterisation of the substantive matter as being a matter pertaining.

PN135      

We say that the dispute, the relief that's sought in this arbitration is for the establishment of a registration board for firefighters and we ask the Commission to make an order to that effect in settlement of the dispute, and we say that's clearly a matter pertaining to the relationship.  It's of the same kind as the matter that was discussed in Re Cramm and we say that the idea that the entry into a contract for the purpose of establishing that board is entirely encapsulated within the dispute.

PN136      

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

PN137      

There are then submissions made about various deficiencies that would arise as a result of the contract being entered into with the company.  We say that those submissions fail to have regard to the specific provisions which are already contained within the service contract which has been negotiated with FRV and which FRV has proposed in order to deal with the very matters that the Minister now complains of.

PN138      

If I can perhaps address this by reference to the letter where these matters are summarised in a briefer form than the lengthy submissions which Mr O'Grady has provided.  If you turn to 132 of the hearing book, you will see item number 1 deals with various deficiencies.  We just give you a note - we won't take up time to take you to it in detail - but we give you a note that under the service contract, which is at page 92 of the hearing book, at clause 7.5.1, there is an obligation on the contractor at the request of FRV to assist with any investigations, inquiries, et cetera, by any authority, including the Victorian Ombudsman or the Auditor General or IBAC.  That's clause 7.5.1.

PN139      

THE COMMISSIONER:  Sorry, Mr Borenstein, which page was that?

PN140      

MR BORENSTEIN:  I haven't given you a page, I have just given you where the document starts.

PN141      

THE COMMISSIONER:  I'm sorry, I thought you said page 92 of the hearing book.

PN142      

MR BORENSTEIN:  Mr Harding helps me and he says it's page 105.

PN143      

THE COMMISSIONER:  All right, thank you.

PN144      

MR BORENSTEIN:  I am indebted to Mr Harding - helpful as always.

PN145      

The second concern about the company not being a public entity, not being subject to public sector requirements for compliance with FOI, et cetera, is fully answered in clause 3.4, which is at page 101 of the hearing book, and clause 6.3.2.  3.4 is a duty to cooperate; 6.3.2 is a duty to ensure that the company's personnel comply with the Government Supplier Code of Conduct, and that's at page 104, and then clause 7.5.2, where there's an obligation on the company at the request of FRV to cooperate and assist in connection with any request about, or relating to, the services of the contract under the Freedom of Information.  That's at page 105.

PN146      

The third concern of the Minister in her letter is the obligation on the company to comply with public law principles such as information privacy, et cetera.  The answer to that is in clause 8 at page 105 of the agreement, which requires the maintenance of accurate records, securely stored and availability for audit; clause 9, which deals with confidentiality, and that's at page 106, and clause 10, which deals with privacy principles and which provides that the contractor must comply with all privacy laws, et cetera.

PN147      

The fourth concern deals with the potential for the powers of the FRV to be fettered.  In our submission, the registration requirements don't fetter the FRV's employment powers contained in section 25B.  This is perhaps illustrated by page 124 of the hearing book, which is the schedule 4 to the agreement, where it's stated at paragraph 5 how the registration is to work.  You will see it says that in order to be registered, firefighters must hold the qualification, skills, et cetera, appropriate for the qualification or deemed equivalent by the board.  Now, they are qualifications which are already prescribed in the enterprise agreement.

PN148      

They are the qualifications for the different classifications of firefighter already existing under the agreement and what this does is to say if you want to be registered, you have to at least hold those qualifications, et cetera, and, secondly, you have to be employed by Fire Rescue Victoria.  So, you already have to be employed in order to be registered; it doesn't work the other way round, and therefore we say there is no impediment to the employment of anybody by FRV as a result of signing this agreement.

PN149      

The reference that I gave you to the enterprise agreement, the 2020 agreement, the competencies are set out in schedule 3 of that agreement and the firefighters employed under that agreement are required to have those competencies, so we say that there is no additional burden on anybody imposed by entering into the registration agreement with the company.

PN150      

The next concern was the potential for duplication with the board under section 149 of the FRV Act.  There are two things to be said about that.  The first one is that so far as we know, that board doesn't function, it's not operational, and so we're talking about something that may or may not occur at some time or other somewhere in the future, but, at the moment, there is a need and a desire to have a registration board put in place for the FRV and there is no impediment to that occurring.  If a board eventually does arise under section 149 then the interplay between those two entities is something that would be worked out at that time but doesn't prevent the arbitration from going ahead at this stage.

PN151      

We also draw attention to the fact that section 149 of the Fire Rescue Victoria Act, which is the section under which the statutory board is supposed to be created, has a limited field of operation.  I'm afraid I don't have a copy of the section with me.

PN152      

THE COMMISSIONER:  I have it in front of me.

PN153      

MR BORENSTEIN:  It has an operation only in relation to a limited range of firefighters.  The board is established under section 149.  Its functions are set out in section 154.

PN154      

THE COMMISSIONER:  You said 154?

PN155      

MR BORENSTEIN:  Yes, 154.

PN156      

THE COMMISSIONER:  Thank you.

PN157      

MR BORENSTEIN:  I'm leading you up the garden path, Commissioner, I'm sorry.

PN158      

THE COMMISSIONER:  That's okay.

PN159      

MR BORENSTEIN:  This is in our friend's submissions.  I should have gone there first.  At paragraph 17, it reads:

PN160      

This part sets out the framework for the Firefighters Registration Scheme.

PN161      

The objectives of the Firefighters Registration Scheme are stated in section 148(2)(b) as follows:

PN162      

(a) to provide for the registration of —

PN163      

(i) officers and employees of Fire Rescue Victoria proposed to be made available to the Country Fire Authority under a secondment agreement; and

PN164      

(ii) other persons who wish to be employed by Fire Rescue Victoria in order to be made available to the Country Fire Authority under a secondment agreement within the meaning of section 25C.

PN165      

So, you see that that doesn't cover the FRV workforce, it covers a part of it, if and when it ever gets in place, and it's only when we know what it's going to do that one would be able to see whether there's any difficulty as between the two entities.

PN166      

The final concern that's raised in the letter is about the costs associated with the operation of the company and potential lack of transparency.  Again, these matters are dealt with in specific terms of the contract which have been pressed by FRV in order to deal with these matters.  Firstly, we direct attention to clause 7.5 at page 105 of the court book where the company has, at its own cost, to cooperate and assist FRV in relation to any inquiry by any authority, including the Ombudsman, et cetera.  I have given you a reference already to clause 8.2, which is the audit clause, and that's at page 106, and the code of conduct clause is also referenced previously in clause 6.3.2.  If we might say, as a service provider to the statutory authority, the company would clearly be within the jurisdiction of the IBAC and so any risk of corrupt conduct would be covered by that regulatory scheme.

PN167      

What we have sought to do is not to give you a detailed response but just to indicate to you that these matters that are raised by the Minister, although on a page in front of you might look impressive, there is, in fact, a direct answer for each one of them which demonstrates that the arguments have not been thoroughly developed and are simply here to allow the Minister, as I said, to do indirectly what she can't do directly, which is to veto this contract.

PN168      

We say, for all of those reasons, you should refuse the application for intervention.

PN169      

THE COMMISSIONER:  Thank you, Mr Borenstein.  Mr O'Grady, are you in a position to respond?

PN170      

MR O'GRADY:  Yes, thank you, Commissioner.

PN171      

THE COMMISSIONER:  Before you do, there were a couple of questions I wish to raise with you just to understand your written submissions a little bit further.

PN172      

MR O'GRADY:  Yes.

PN173      

THE COMMISSIONER:  Just bear with me one moment.  This is what happens when I read documents.  Paragraph 2 of the submissions refers to an alternative submission, the Minister requesting the hearing be adjourned pending determination of a Federal Court application.  I notice that's inconsistent, or potentially inconsistent, with paragraph 50, which says:

PN174      

The Minister has instructed, if necessary, that an application be made.

PN175      

I just wanted to clarify, is one to be made?

PN176      

MR O'GRADY:  The position, as I am instructed, Commissioner, is that if you were to grant us leave to participate in the proceedings to agitate the points that we have highlighted in the outline of submissions, we would seek to do that as opposed to going off to the Court, but if you were to accede to my learned friend's submissions and not grant us leave to participate in the proceedings to agitate the issues that we have sought to agitate, then we would be asking that the Commission adjourn the matter and we would be filing a submission in the Federal Court by the end of this week seeking to, in effect, ventilate these issues in that forum.

PN177      

THE COMMISSIONER:  All right.

PN178      

MR BORENSTEIN:  Can I just say this - I'm sorry to interrupt my friend - I must say I didn't anticipate that you would be looking at this question of the adjournment and the Court application before you made the decision, but can I just say this.  There is a serious question about whether there is any matter that the Minister could raise in the Court within the jurisdiction of the Court under section 562 and the decision we gave you from ALS makes that point clearly, and particularly if what they are wanting to go and do is to say, 'Well, we want to argue these merits matters in the Full Court or in the Federal Court.'

PN179      

There is a serious doubt about any jurisdiction in the Court being available for that, and if our friend wants to make that argument and encourage you to adjourn, he should at least provide you with some authority to demonstrate how he would say the Minister would have the standing to go to the Court under section 562 and say, 'I want to have a merits argument here.'  There's just no basis for it.

PN180      

THE COMMISSIONER:  All right, thank you, Mr Borenstein.  I think I understand the slightly different wording between those two paragraphs.

PN181      

The next question I'm about to ask, Mr O'Grady, may well lead to the same exchange, but I note from paragraph 4, which argues there should be an exercise of the discretion, paragraph (d) then says - and relevant to that is the Minister's actual knowledge of the bargaining for, or making of, the FRV interim agreement.  What I wasn't clear about is, well, what that means and how it would be demonstrated if intervention were to be granted.

PN182      

MR O'GRADY:  It was really inserted in the attempt to distinguish the position of the Minister as opposed to some other party that might seek to involve itself in this proceeding.  Obviously we haven't, at this juncture, sought to put any evidence before the Commission because we needed permission to participate in the proceedings before doing so, but the Minister, as the minister responsible for FRV, has access to the basis upon which the terms of the FRV interim agreement were made and what the effect of those terms are.

PN183      

Now, ultimately, of course, it's a matter of what weight the Commission might seek to give to that evidence in circumstances where the terms are before the Commission and the agreement has been made.  It's really an ancillary point, if I can put it in those terms, Commissioner.

PN184      

THE COMMISSIONER:  It may be an ancillary point, but it jars with the other elements in paragraph 4, so am I to read that as the Minister saying that she would wish to bring evidence on those matters?

PN185      

MR O'GRADY:  Not necessarily, Commissioner.  It really is, as I put earlier, an attempt to, I suppose, highlight the unique position we would submit the Minister finds herself in as the minister responsible for FRV and, in so doing, why it is appropriate for her to be given permission to intervene in the proceedings as opposed to the position that might pertain more generally.

PN186      

THE COMMISSIONER:  All right, thank you for assisting with those questions.  Maybe if we turn to your submissions?

PN187      

MR O'GRADY:  Yes.

PN188      

THE COMMISSIONER:  And I do apologise, I'm quite wheezy this morning.  Anyway, please proceed.

PN189      

MR O'GRADY:  We're sufficiently far away, Commissioner, so we should be fine.

PN190      

THE COMMISSIONER:  I don't think it's that.  It's probably more other things.

PN191      

MR O'GRADY:  Can I start by noting that my learned friend, whilst he addressed a number of the matters that we've sought to raise in the submissions, did not address in any way, shape or form the first matter that we have raised, as summarised in paragraph 1(a), namely, that in the Minister's submission, FRV, having sent the letter that is the subject of clauses 42 of Division A and 49 of Division B, there is, in our respectful submission, no extant dispute and, as we have developed in the submission, what is being sought by way of relief in this proceeding, we would respectfully submit, is to impose a new suite of obligations on FRV that are, in our submission, inconsistent with the terms of the FRV interim agreement, particularly in circumstances where the FRV interim agreement has a no extra claims clause.

PN192      

There is, in our respectful submission, a significant expansion of the obligations that are going to be imposed upon FRV through these proceedings that cannot be sourced to the terms of the FRV interim agreement at all.  If that be right, then clearly there can be, in our respectful submission, no jurisdiction in the Commission to grant the relief that is being sought by the UFU in these proceedings.

PN193      

Can I then turn to what my learned friend did deal with, and he started with the nature of a private arbitration and we, of course, concede that there is a distinction between a private arbitration and some of the other functions that the Commission undertakes; but it is, in our respectful submission, not correct to suggest that this private arbitration is unfettered or unlimited and/or unfettered from the restraints that otherwise are found within the Fair Work Act.

PN194      

This is not a private arbitration between two corporate entities who have agreed to have some third party arbitrate their disputes; rather, it is a private arbitration pursuant to a dispute resolution process that is contained within an enterprise agreement and, necessarily, the enterprise agreement is confined to matters that pertain to the relationship between employer and employee.

PN195      

I will deal, of course, in due course with Electrolux, but, in our respectful submission, it is not correct to suggest that this is somehow some side deal between FRV and the UFU that is being agitated before you in these proceedings; rather, it is an exercise of the Commission's powers to resolve disputes under section 739, albeit powers that have been conferred through a dispute resolution procedure.

PN196      

In my submission, in those circumstances, the suggestion that section 590 has no work to do is, we would submit, without justification and, of course, there is no limitation in section 590 itself to suggest that it does not extend to the Commission informing itself and allowing intervention in respect of matters that arise under a dispute resolution procedure.

PN197      

In our submission, the starting point is whether the Minister has a sufficient interest in the subject matter of this proceeding to put submissions to the Commission and assist the Commission to inform itself for the purposes of determining the dispute.

PN198      

Again, when one comes back to the, we would submit, special nature of the Minister, her responsibility for FRV, obviously, the consequences that will be ultimately visited on government of the relief that is sought in these proceedings, the Minister, in our submission, is a person who should be heard in respect of this application, and particularly, in my submission, where the Minister is not seeking to simply put submissions as to the merits of how the dispute might be resolved, but rather the Minister seeks to agitate issues going to whether the Commission has jurisdiction to make the orders that are the subject of the relief sought in the first place, as well as whether it would be lawful for FRV to enter into this agreement because of the constraints contained within the FRV Act, both those constraints that are the subject of the requirement for the Minister to grant approval, as set out in section 25(3), and also the constraints flowing from the fact that FRV is not permitted to impermissibly fetter itself in respect of a discharge of its powers.

PN199      

You would have seen, Commissioner, that in the submissions, we have made the point that what is being sought in the relief that is appended to the applicant's outline is that FRV be constrained by this agreement in perpetuity unless and until the UFU gives it permission to exit from this agreement.

PN200      

THE COMMISSIONER:  Mr O'Grady, in reference to section 25A, you are dealing with that subject which I understand is to be one form of ministerial direction or ministerial control, if I can put it that way.  Is there any power of general ministerial determination or direction under the Fire Rescue Victoria Act?

PN201      

MR O'GRADY:  There is a power in section 8:

PN202      

Fire Rescue Victoria and the Fire Rescue Commissioner are subject to the general direction and control of the Minister in the performance of the duties and functions and the exercise of powers of Fire Rescue Victoria and the Fire Rescue Commissioner, including, but not limited to, the policies and priorities to be pursued by Fire Rescue Victoria and the Fire Rescue Commissioner.

PN203      

That's a general power of direction and it isn't expressed in terms of being a specific power of direction and the Minister has sought to ventilate her concerns through the mechanism that we seek to agitate in our application and submissions this morning.

PN204      

While we are dealing with the Act and section 25, I would note that there are obligations imposed upon FRV by the proposed agreement, and if one has regard to schedule 1, item 5 where there are things that FRV has to do in order to enable the contracting entity to discharge its function, in my submission, that means that this is an agreement or an arrangement for the provision of goods and/or services by Fire Rescue Victoria.

PN205      

I would also note the effect of the affidavit that has been filed by the UFU in these proceedings, that of Ms Campanaro, where she details the history that has led to this point and, in my submission, when one has regard to the very broad language used in section 25A(3)(b), 'forming, participating in the formation of, or becoming a member of the body corporate, association partnership, trust or other body', that history is capable of supporting the concern of the Minister that FRV has been participating in the formation of the entity that is going to be the subject of these contractual arrangements and thereby requiring her permission for FRV to engage in that process, which permission has been denied.

PN206      

This, of course, is a situation, Commissioner, where you have a formal letter of the Minister who has expressed her view in respect of these matters and has indicated (a) that, in her view, her consent is required and (b) that her consent is declined.

PN207      

As I have already touched on, Commissioner, and as was dealt with by my learned friend in his submissions, putting to one side the issue of whether or not consent is required under section 25A, there is the underpinning issue of fettering in circumstances where what is sought to be imposed is an agreement which has, as I have indicated, an indefinite duration subject to the UFU indicating that the agreement can be terminated.

PN208      

THE COMMISSIONER:  Mr O'Grady, can I just take you back, please, to the previous submission you were making regarding section 25A.

PN209      

MR BORENSTEIN:  Yes.

PN210      

THE COMMISSIONER:  In reading the Minister's letter, she refers twice to section 25A(3)(b), but she doesn't appear to directly refer to section 25A(2).  Now, the contention  - and I am exploring this for the purposes of intervention, so I'm not after the full submission - but which of the powers in respect of 25(2)(a) does the Minister say gets her to 25A(3)?

PN211      

MR O'GRADY:  Well, we don't say it flows from 25(2)(a), rather we say it flows from 25(2)(b) and 25(2)(e), both of which are expressly subject to the restrictions contained in 25(3).

PN212      

THE COMMISSIONER:  So what are the provision of goods or services by Fire Rescue Victoria which are relevant?

PN213      

MR O'GRADY:  We rely upon what is contained in schedule 1, item 5.

PN214      

THE COMMISSIONER:  Just one moment.  I'm sorry what was that reference?

PN215      

MR O'GRADY:  I'm sorry and, apologies, I don't have a copy of the Commission book.

PN216      

THE COMMISSIONER:  Schedule 1, item 5?

PN217      

MR O'GRADY:  Item 5.

PN218      

THE COMMISSIONER:  I see.

PN219      

MR O'GRADY:  Which imposes various obligations which we say are capable of being seen as the provision of goods or services by Fire Rescue Victoria.

PN220      

THE COMMISSIONER:  Okay, thank you.

PN221      

MR O'GRADY:  I think it's at page 117.

PN222      

THE COMMISSIONER:  I understand.

PN223      

MR O'GRADY:  It's really in respect of those two alternative limbs.  There's a limb concerning the provision of goods or services flowing from schedule 1, item 5, there's the involvement that FRV has had in the formation of the corporate entity, which is reflected in what Ms Campanaro has detailed in her affidavit, but we may seek to adduce further evidence in respect of that because we say they are very broad terms, both of which clearly do warrant or require permission from the Minister.

PN224      

Then we also rely upon the broader issue, which is the capacity of FRV to fetter itself in the way that this agreement would do so and in circumstances where it is committed, as we read it, indefinitely to the terms and conditions contained in this proposed service agreement, unless and until the UFU gives permission for that agreement to be terminated.

PN225      

It can be contrasted with the position that exists in respect of the enterprise agreement.  The enterprise agreement doesn't have such an operation; the enterprise agreement can be terminated either by application to the Commission or through it being replaced by another enterprise agreement, but the arrangement that you are being asked to order FRV to enter into can't be, which we say is inconsistent with the statutory obligation that the FRV Act puts upon the FRV Commissioner to discharge his powers from time to time appropriately.  It divests him of the capacity to exercise the powers that have been conferred upon him in the way that he might think is appropriate because he is committed to complying with this agreement indefinitely and, indeed, as we have pointed out in the written submissions, is subjected to a further process of dispute resolution as contained in the enterprise agreement in respect of any dispute that might arise in respect of the contract which is sought to be imposed.

PN226      

My learned friend, having referred to the nature of the private arbitration, I didn't understand him to be suggesting that the Commission's powers in discharging its role in a private arbitration are unfettered or unlimited, but they ultimately need to, in our respectful submission, be exercised in accordance with the Act and to the extent to which the Minister seeks to put submissions that the relief sought in these proceedings would not be in accordance with the Act, in our submission, that's a matter that the Commission should be apprised of and should hear submissions in respect of from an interested entity like the Minister.

PN227      

My learned friend then went to the power contained in section 597A.  In our respectful submission, the existence of that provision is an additional reason why permission should be granted to my client in respect of these proceedings.  That provision reflects an acknowledgement that there will be occasions where it is appropriate for the minister of a state or territory to be involved in matters that are before the Commission and, indeed, in those circumstances, there is an entitlement upon the relevant minister to be involved in the proceedings.

PN228      

In our respectful submission, it's beyond argument that it is in the public interest of the State of Victoria for the Minister to make submissions in respect of this proceeding, given the consequences of the relief that is sought by the UFU in these proceedings.

PN229      

We accept, of course, that this is not a matter before a Full Bench, but, in our submission, there's nothing in section 597A that seeks to limit the discretion contained in section 590 more broadly, and in circumstances where, if this matter was before a Full Bench, the Minister would have an entitlement to appear and make submissions and we submit it is appropriate for the Commission to exercise its discretion under section 590 in respect of our application.

PN230      

My learned friend, in his submissions, did appear to suggest that the only concerns that the Minister had were the matters set out in the letter of 17 August.  As the Commission will appreciate from the written outline that we have filed, the Minister's concerns are not confined to those matters, but, in our respectful submission, they are all matters of substance and, in our respectful submission, are not appropriately addressed by the contract that my learned friend took you to.

PN231      

Can I take the Commission to the contract as it appears as an appendix to the submission filed by the UFU.  I think that's at page 92 of the court book.  In respect of the first issue, namely the deficiencies the remain in the transparency and oversight of the corporate board's functions, my learned friend referred to clause 7.5.1, which is that:

PN232      

At the request of FRV, the contractor must, at its own cost, cooperate and assist FRV in connection with any inquiry or investigation by an authority, including the Victorian Ombudsman and the Victorian Auditor General and IBAC.

PN233      

With respect, to suggest that the contractor has to assist FRV in respect of an IBAC inquiry and to say that that is an adequate way of addressing the concerns that the Minister has raised in paragraph 1 of her letter is, with respect, an extraordinary submission.

PN234      

Firstly, it's not a provision that has any work to do unless FRV makes the request and, secondly, it is a provision that requires there to be an investigation by an authority, including the Ombudsman, the Victorian Auditor General or IBAC.  In circumstances where we are talking about a body that will have significant control over who can work as a firefighter in the State of Victoria and where there is an indefinite, or potentially indefinite, requirement for that body to be funded by the State of Victoria, to suggest that it's only if there's an IBAC investigation that that addresses concerns regarding transparency and oversight, we submit, is an extraordinary proposition to put to the Commission.

PN235      

I am informed that the funds we are talking about are in excess of some $600,000 a year in perpetuity unless and until the UFU agrees that the contract can be brought to an end.

PN236      

The second concern concerns the corporate board not being a public entity and not being subjected to accepted public sector requirements.  Now, whilst it is true that there is an example provided, namely, the Freedom of Information Act and administrative law principles such as procedural fairness and judicial review, the fact remains that the corporate board will not be a public entity and therefore will not be subject to the public law principles and legislation that is directed to public entities.

PN237      

In my respectful submission, the clauses that my learned friend took you to, namely, 3.4, which is again a duty to cooperate:

PN238      

If reasonably requested to do so by FRV in writing, the contractor must cooperate with FRV for the purposes of FRV complying with any regulatory requirements or obligations, however so described.

PN239      

Again, the obligation is on FRV.  For the obligation to arise, FRV must make a request and, further, that request must be reasonable, which falls significantly short of the type of regulation and safeguards traditionally associated with public entities in this state.

PN240      

The next clause was 6.3.2:

PN241      

Without limiting any other obligation of this contract, the contractor must ensure their personnel comply with the VGPB Supplier Code of Conduct.

PN242      

Again, a very different type of obligation from those that would be associated with a public entity.  And then 7.5.2, which is, again:

PN243      

At the request of FRV, the contractor must, at its own cost, cooperate and assist FRV in connection with any request to FRV about, or relating to, the services contract under the Freedom of Information Act.

PN244      

THE COMMISSIONER:  Mr O'Grady, I could be wrong in this proposition, so feel free to tell me that, but my understanding is that this contract has been modified from a template that FRV uses.  If that is the case, then could not the same arguments then be put in respect of any contract that the FRV enters into, whether it's to purchase new fire trucks or to retain training services from a TAFE or legal services?

PN245      

MR O'GRADY:  There are two responses to that proposition, Commissioner.  The first is, of course, in the template that FRV uses, there is no requirement that the contract remain in place in perpetuity unless and until the UFU gives FRV permission to terminate it.  Secondly, we are here dealing with a contract that involves an ongoing commitment of a significant amount, as I have already referred to, in excess of some $600,000, that will, in effect, determine who can or can't work as a firefighter in the State of Victoria.

PN246      

THE COMMISSIONER:  Yes, I understand those submissions, but the submission you are making is that this is not a public entity, it's not subject to FOI principles, it's not subject to other public processes that normally would occur, but I'm putting to you that is that not the case also with the procurement for new fire trucks or the TAFE system?

PN247      

MR O'GRADY:  In respect of, say, the fire trucks example, one would have thought that different considerations might arise in that we're not talking in respect of the fire truck example of, in effect, a regulatory board being set up in perpetuity, which is the case that we are dealing with here.  That's the way we would respond to that issue.

PN248      

THE COMMISSIONER:  Okay, thank you.

PN249      

MR O'GRADY:  Again, Commissioner, I am dealing with these matters in the way I am because my learned friend says, 'Well, there's no substance to any of these Minister's concerns in any event' and, in my submission, the Minister's concerns have real substance and the clauses in the proposed contract that my learned friend took you to don't in any meaningful way address those concerns.

PN250      

The same points, in my submission, can be made in respect of the third concern made by the Minister, namely, again, the corporate board to comply with public law principles.  My learned friend, in respect of that, referred to clause 8, clause 9 and clause 10.

PN251      

Clause 8 is simply a provision in respect of record maintenance and the potential for an audit to take place.  Again, in respect of the audit, that is something that has to be, in effect, notified by FRV and, again, in my submission, falls significantly short of the broader public law principles that the Minister is concerned about.  Clause 9 deals with confidential information.  The same point, I think, can be made in respect of that, and clause 10 deals with privacy.

PN252      

My learned friend then went to the fourth point dealing with fettering and my learned friend made the, in our respectful submission, very broad and, we would say, surprising submission that there is no fettering that occurs in respect of this agreement.  In circumstances, as I have already said a number of times, Commissioner, that this arrangement is to remain in place in perpetuity unless and until FRV is given permission from the UFU to terminate it, we would submit there is necessarily a very significant fetter on the capacity of FRV to exercise its powers in respect of the employment of firefighters in the State of Victoria.

PN253      

Then, in respect of the fifth point, there is reference to the potential duplication between the functions to be performed under the service agreement and those to be performed by the board established under section 149 of the FRV Act.

PN254      

There's two points I would seek to make in respect of that.  Firstly, it is, in our respectful submission, clear and beyond argument that in respect of personnel who are seconded by FRV to CFA, there is a real potential for conflict between the statutory scheme and the scheme that is sought to be put in place through this agreement.  My learned friend says, 'Well, the statutory scheme is in abeyance.'

PN255      

As my learned friend would be aware, there has been significant work on the statutory scheme and my instructions are that that work is well progressed and, further, that the FRV has participated in the working group that has been involved in progressing the statutory scheme.  What the Minister is concerned about is that under this contract, FRV will be bound to continue under the contractual scheme and, indeed, to fund the contractual scheme in respect of persons seconded to CFA even when the statutory scheme is put in place.

PN256      

My learned friend says, 'Ah, well, we can worry about that when and if it happens.'  The point is, of course, that FRV will not be able to depart from these arrangements when, and if, that happens unless the UFU gives its permission.

PN257      

THE COMMISSIONER:  Am I to take it that the Governor in Council has not made any appointments to that board?

PN258      

MR O'GRADY:  Not that I'm instructed.

PN259      

THE COMMISSIONER:  All right, thank you.

PN260      

MR O'GRADY:  But I have got my instructions that the statutory board is well progressed and that FRV participated in the working group giving rise to it.

PN261      

THE COMMISSIONER:  Well, that might be the case, but, unfortunately, I don't have any evidence on that subject in the file.

PN262      

MR O'GRADY:  No, I accept that, and I am, of course, addressing the Commission really on why the Minister should be heard and be allowed to participate in these proceedings.

PN263      

THE COMMISSIONER:  But doesn't that come to the point, which is the Minister may have a conflict with the chair of the board, or whatever their title is, the president, or she might have a conflict with the chief executive of Fire Rescue Victoria.  Are these really things that require agitation before the Commission?

PN264      

MR O'GRADY:  In my respectful submission, they do in circumstances where they go to whether or not FRV would be acting in accordance with the FRV Act if it was to enter into an agreement of the type that is the subject of the relief in these proceedings.

PN265      

THE COMMISSIONER:  But isn't that a matter between her and the board?

PN266      

MR O'GRADY:  Well, in my submission, for the Commission to make an order against a statutory authority that would require it to do something that was prima facie unlawful or not consistent with the Act that governs that authority, we would submit is a matter that one wouldn't have thought the Commission would normally or ordinarily do and it would be a matter that would be of some significance in deciding what is the appropriate order to make, and the Minister wishes to be heard in respect of those issues.

PN267      

In effect, that's the way we would seek to characterise what is occurring here, that the UFU is asking you to make an order that requires FRV to do something that it's not allowed to do under its Act.

PN268      

THE COMMISSIONER:  You put it as bluntly as that?

PN269      

MR O'GRADY:  We would put it as bluntly as that.

PN270      

THE COMMISSIONER:  And what are the consequences of that?

PN271      

MR O'GRADY:  Well, there is a real issue as to - it gets very complicated, with respect, Commissioner, because - - -

PN272      

THE COMMISSIONER:  That's why I was asking you the question.

PN273      

MR O'GRADY:  Yes, but if FRV sought to do it independently of the processes of the Commission, then FRV's conduct would be prima facie ultra vires and, being beyond power, it would be unlawful and the actions might be capable of being set aside.  The complication, of course, arises where the Commission is exercising federal power pursuant to a dispute resolution process in an agreement, but, whatever be those ultimate consequences, it is a matter that, in my submission, the Commission would need to take into account in deciding what relief to order in the context of this proceeding, and that's what we want to be heard on.

PN274      

THE COMMISSIONER:  Can you just give me one moment, please, Mr O'Grady.  Please proceed.

PN275      

MR O'GRADY:  Thank you.  The last point in the letter is the costs associated with the corporate board and you have heard submissions as to what that cost is.  That, obviously, is a matter of significance, it's a matter that the Minister is entitled to be concerned about and, in my respectful submission, to be heard on, particularly in circumstances where we are not talking about the purchase of a vehicle, a one-off if you like, rather we are talking about an ongoing commitment which cannot be departed from absent the consent of the UFU.

PN276      

Can you just bear with me, Commissioner.  My learned friend also dealt with the issue of 'pertaining' and took the Commission to the relief sought in the application.  Whilst my learned friend referred to paragraph 3.1(1)(a), which is to establish a registration board in accordance with the FRV IO Agreement 2020, what he didn't engage with was the term of the relief that is currently sought, i.e. the agreement that is appended to the submissions filed by the applicant.

PN277      

It is, in my respectful submission, again clear that there are, at the very least, very real issues about whether or not requiring FRV to enter into an agreement in these terms would be a matter pertaining to the relationship between employer and employee, and when one goes to the passage in Electrolux that my learned friend took you to, there is a distinction, as is indicated at paragraph 97, between ancillary, incidental or machinery provisions in an agreement and a substantive matter that is both discrete and significant.

PN278      

In my submission, it is clear that what is contained in the agreement that is appended to the UFU's submissions is a substantive matter that is discrete and significant.  To describe it as some sort of ancillary or machinery provision, in my respectful submission, fails to give proper weight to the very significant obligations that agreement would impose upon FRV.

PN279      

In circumstances where this is a contract between FRV, on the one hand, and a third corporate party, that is clearly a matter that we would submit does not pertain and where, in addition to that, there is the request that the UFU be joined as a party to the proceeding where the UFU's function, under this agreement, we would submit, is analogous to the example given in the Explanatory Memorandum that we have set out in our outline of submissions and is dealt with at paragraph 37 of the submissions that we filed - and you will see that, in the Explanatory Memorandum, there parliament drew a distinction between the role of a union as, in effect, a representative of its members and the role of a union participating in some other arrangement, including a term granting a lease for property owned by the employer to the employer organisation - in our submission, for both of those reasons, one would say that the proposed remedy that is sought in these proceedings is not a matter that pertains, even if it be said that the clauses that are said to give rise to this dispute are such matters.

PN280      

In that regard, we do note that clause 42 of the agreement, and I believe clause 49 of Division B is in the same terms, concerns a commitment to be given to the secretary of the UFU as opposed to the UFU itself, but we have dealt with the issues in respect of the clause, which, in effect, concern the following propositions.

PN281      

Firstly, to the extent to which they do impose an obligation, they have been complied with and therefore they can't be the subject of a dispute.  Secondly, to the extent that the UFU is seeking to expand the obligations contained in the clause, that's, in effect, asking the Commission to amend the agreement, which it can't do under its powers to resolve a dispute over the application of the agreement, nor because of the direct conflict that that would have with the no extra claims clause contained within the agreement.  Then, finally, the relief sought is clearly, in our submission, not a matter that is covered by the agreement, nor a matter that pertains to a relationship.

PN282      

Just bear with me, Commissioner.  If the Commission pleases, those are the submissions I seek to put in support of our application.

PN283      

THE COMMISSIONER:  All right, thank you, Mr O'Grady.

PN284      

MR BORENSTEIN:  Commissioner, can I just raise two very short matters, one of which our friend raised in reply which he didn't raise in chief, and the other one is just a legal matter which we should point out so that nobody makes a mistake.

PN285      

The legal matter is in relation to section 597A.  Our friend made a submission that suggested or inferred that that would apply to his Minister, and you will see there that it doesn't apply to the Minister in this case, it only applies to ministers who have responsibility for workplace relations.

PN286      

The second matter, which our friend didn't raise in chief, concerned schedule 1 of the contract at page 117 of the court book where he said that the FRV obligations amounted to the provision of services by the FRV to a third party, and we just simply wish to say in response to that that that is so far distant from reality as to defy a clear answer, but can we give an example, that if you, Commissioner, were going to get your taxes done by your accountant and you provided him with the material to do the tax return, it would hardly be said that you were providing a service to the accountant by providing the documents, and this is analogous to that.

PN287      

THE COMMISSIONER:  I might charge them.

PN288      

MR BORENSTEIN:  Well, you might try and charge, Commissioner, but I don't know how successful you would be.

PN289      

THE COMMISSIONER:  I understand the point.

PN290      

MR BORENSTEIN:  But they are the two points, thank you.

PN291      

THE COMMISSIONER:  All right, thank you.  Mr Harding, did you wish to make any submissions?

PN292      

MR HARDING:  No, nothing further, Commissioner.

PN293      

THE COMMISSIONER:  All right.  Look, I think I have exhausted my questions.  I think it might be best to adjourn until 2.30 and then if we resume at that point.  Thank you.

LUNCHEON ADJOURNMENT                                                            [1.12 PM]

RESUMED                                                                                                [2.37 PM]

PN294      

THE COMMISSIONER:  Thank you, parties for that opportunity.  What I propose to do now is to read a short decision into the transcript, dealing with the matter before me at the moment.

PN295      

The matter presently before the Commission is an application made by the UFU on 30 March 2022, invoking the Interim Agreements Dispute Resolution clauses and the provision of two further clauses, Clause 42 of Division A, applying to former MFB operational employees, and Clause 49 of the Division B, applying to former CFA operational employees.

PN296      

Both the latter clauses commit the FRV to endorse the establishment of a Firefighter Registration Board to be demonstrated by letter of endorsement to the UFU Secretary.  I am informed that considerable conciliation on the subject has failed to resolve the differences between the UFU and the FRV.

PN297      

Somewhat unusually, I am not fully aware of the scope of the disagreement between those parties.  Directions for hearing of this matter were issued by me on 23 June 2022, the ultimate step for which is a hearing which is listed for today and tomorrow.  The UFU has filed comprehensive submissions on the form of relief it seeks, as well as a witness statement of its Industrial Officer, Laura Campanaro.

PN298      

The FRV's submissions are less comprehensive, consisting of short submissions and a statutory declaration from its solicitor, David Catanese(?), drawing attention to correspondence dated 17 August 2022 from Jaclyn Symes, MP, Attorney General and Minister for Emergency Services.

PN299      

The correspondence is to the FRV's Acting Fire Rescue Commissioner, Martin Braid, informing him that she refused consent to the FRV to enter into a services agreement with the Victorian Professional Career Firefighters Registration Board Limited for the provision of firefighter registration services to the FRV.

PN300      

The letter states the Minister refused consent pursuant to Section 25A of the Fire Rescue Victoria Act 1958, with the letter setting out the basis of her refusal.  I am unaware of the FRV's views either about the grounds she states for refusal, what should now be done by the FRV in response to the Minister's letter, or what follows for the Commission as a result of the Minister's correspondence or the grounds she invokes.

PN301      

Notwithstanding the filing of the directions issued by me on 23 June 2022, and that the Minster's correspondence to the FRV is dated 17 August 2022, the Minister has sought to intervene in these proceedings, only for an email sent to my chambers at 8.55 a.m. this morning.

PN302      

In those submissions the Minister refers to several grounds of objection to the relief now sought by the UFU, including that the term of the agreement, in conjunction with the things already done by the FRV means the dispute is resolved; that the subject in Clause 42 and 49 is not about matters pertaining; further it is argued by the Minister that the relief sought by the UFU impermissibly fetters the FRV in the discharge of its powers and functions.

PN303      

The Minister seeks that she intervene and be heard by me in relation to these and other subjects elaborated upon in what is now exhibit Minister 1.  Amongst other things, the Minister would draw the Commission's attention, not only to her power to refuse consent to certain third party arrangements, but also to obligations she says are case on the FRV by its act and its status as a public sector entity.

PN304      

It is argued on her behalf that I should exercise a discretion under section 590 of the Fair Work Act, which gives the Commission the power to inform itself in such manner as it considers appropriate.  The UFU objects to the Minister's invention, whereas the FRV does not express a view.  It its submissions on the subject the UFU contends that since this matter involves a private arbitration, the Commission ought not grant intervention to a third party.

PN305      

In this regard it draws a distinction between a matter involving exercise of a judicial function, and a matter such as this, being determination of private rights and a private arbitration.  The union further argues that the basis of the Minister's objection to the relief proposed by the union are without foundation.

PN306      

My decision is to grant intervention to the Minister, but to confine that intervention to the subject matter set out in the submissions she filed this morning.  In granting intervention I note the submissions already made by the UFU about the applicability of each of the Ministers' objections.

PN307      

I am yet to fully engage with those matters or the weight, if any, which should be accorded to them in making my decision about the substantive matter, and that is especially so given the FRV has not raised any matters or expressed the view it accepts the accuracy of her submissions.

PN308      

I am also reluctant to disturb the timetable put in place for the hearing and determination of the matter.  I do not know why it took from 17 August when the Minister sent her letter to the FRV drawing attention, amongst other things, to its obligation to act as a model litigant, to then only file objections and a request for intervention only on 29 August.  Such delay is unsatisfactory and ought not be the basis for further delay.

PN309      

Having said that, I must plainly afford an opportunity to the UFU to have time to prepare and file rebuttal submissions on the detail of the Minister's submissions, if that is what they wish to do.  Because of that, I propose then that the matter proceed in accordance with the steps, four steps in all, which as far as possible, make use of the time set aside today and tomorrow.

PN310      

First of all, I propose that the UFU now proceed to develop its case in support of the relief it seeks, and that may include the oral evidence if such is required, of Ms Campanaro.  I then suggest hearing the FRV for the same purpose, and then I propose to hear the submissions on behalf of the Minister as she wishes to make, but as I have said, to be confined in the way that I have outlined.

PN311      

I would then afford the union the opportunity of the right of response to the Minister, either through final written submissions or oral submissions according to its preference, and what I mean by that is that I would adjourn the proceedings at the conclusion of the Minister's submissions, perhaps for about two weeks from the availability of transcript so that we can hear the union's final closing submissions.

PN312      

At the conclusion of the union's final submissions I would then propose to reserve my decision and to issue it in the usual course.  So does any party wish to say anything about what I have just indicated?

PN313      

All right.  In that case I will turn to you, Mr Borenstein.  Just out of interest - not interest, just out of letting the parties know, I propose to perhaps adjourn at 4.30 today, if that's convenient, and resume at 10 o'clock tomorrow.

PN314      

MR BORENSTEIN:  Commissioner, this dispute has been brought under clauses 21 of Division A and clause 26 of Division B of the 2020 Enterprise Agreement and those clauses are attached to the Form 10 in the hearing book, and you will find them at pages 7 and 10 of the hearing book and perhaps I can make this submission by reference to clause 21 which is at page seven.

PN315      

The dispute resolution provision allows for disputes to be raised in relation to all matters arising under this division in Division A, and there's a corresponding provision in Division B.

PN316      

Secondly, all matters relating to the application of or for which express provision is made under this division.  And, thirdly, all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in its division.  So we rely on all of those grounds in clause 21 and 26 to support the dispute that's raised.

PN317      

The dispute, as I indicated to you, Commissioner, this morning is about the establishment of a registration Board for the registration of fire fighters employed by Fire Rescue Victoria and I will refer to them as FRV.

PN318      

The establishment of a Fire Fighters Registration Board was contemplated at the time of making the interim agreement and is reflected in clause 42.1 of the agreement and the corresponding provision in the Part B and, contrary to the way in which this clause has been characterised by Mr O'Grady this morning we say that there are two aspects or two elements to clause 42.1.

PN319      

The first one is the endorsement by FRV of the establishment of a Fire Fighters Registration Board and, secondly, the demonstration of that by letter of endorsement to the UFU secretary.

PN320      

Now, they are two separate things because the first sentence can stand alone and is made effective and operative by the fact that the clause is agreed to in the agreement.  The fact that FRV has signed up to an agreement where it says, 'FRV endorses the establishment.'  And then, secondly it goes on to provide that FRV will demonstrate this by a letter of endorsement.

PN321      

Now it would be a curiously narrow reading of that clause to suggest that the only effective operation of the clause is to produce a letter that would really be a very narrow and barren reading of this clause and a reading of the clause that is divorced from any industrial reality.

PN322      

It's apparent that the union were pursuing a claim for a Fire Fighters Registration Board and the FRV endorsed the establishment of that Board.  And so we say that as a starting point the establishment of the registration board is a matter that arises under the division.

PN323      

Now for the matter to arise under the division it doesn't have to prescribe that the board will be done.  It's a matter which is dealt with in the division.  It's a subject matter which is addressed by a clause in the division.  And we say that that permits the dispute resolution clause which should be given a generous reading to raise a dispute about the establishment of the Fire Fighters Registration Board.

PN324      

It's establishment as being accepted by or endorsed by the FRV and we say that the dispute resolution clause allows for the union to say, 'Well, let's implement that.'  So we say, 21.1 of the dispute resolution clause is adequate and sufficient to sustain the dispute about the establishment of the registration board.

PN325      

Then, clause 21.1.2 which deals with all matters relating to the application acknowledgement of Fire Fighters Registration Board, and in the first sentence contains a commitment described as an endorsement of that process or that step.  And so again, clause 21.1, can found the dispute or the establishment of a Fire Fighters Registration Board.

PN326      

Thirdly, clause 21.1.3 allows for a dispute about all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this division.  Now, we say immediately, consistent with what I just said that there is express provision made for such a matter.  It's in clause 42.  But even beyond that and even without that for the reasons which we outlined this morning and reliant on authorities such as Re Cramm in the High Court which we will get to you this morning, we say that a claim for the establishment of a registration board is clearly and unarguably a matter pertaining to the employment relationship between fire fighters and FRV.

PN327      

And reiterating the submission which I made this morning it's important in the characterisation of the dispute to understand what the substantive dispute is about.  The substantive dispute is about the establishment of the registration board.

PN328      

How one goes about that, whether one does that through a company, whether one that does that by appointing certain people without a company structure, or however one does that is a machinery provision which serves the subject matter which is the matter pertaining.

PN329      

And was explained by Justice McHugh in the Electrolux case which we handed up to you and as is recognised in paragraph 666 of the explanatory memorandum, it is permissible to have machinery matters or incidental matters attached to the substantive matter, which is the registration of the establishment of registration board and still come within the description of matters pertaining.

PN330      

And so that's the third basis on which we advance the dispute and say that the dispute falls squarely within the dispute resolution clause in each of the two parts of the enterprise agreement.

PN331      

Now, you will be aware from your previous dealings with this matter that there have been lengthy discussions and negotiations between FRV and the UFU to flesh out the terms and the arrangements for the establishment of the registration board.

PN332      

One of those matters was the registration of a company.  The company is called Victorian Professional Career Fire Fighters Registration Board and it has been formed and has been nominated as the entity which will be the Board to carry out the registration process.

PN333      

Now the constitution of the company is produced as an annexure to Ms Campanaro's statement.  And you will find it at page 61 of the court book.  And as is the usual way with these sorts of documents they identify the purpose for the establishment or the registration of the company.

PN334      

And if I could direct your attention to page 66 clause three there is a setting out of the background the formation of this company and you will see at the bottom of page 66 in clause 3(e), the main function of the company will be to register professional career fire fighters from the ranks covered by the FRV Operational Agreement employed by Fire Rescue Victoria.

PN335      

And then (f) the professional career fire fighters will be required to have appropriate rank specific qualifications, competencies et cetera and to participate in ongoing skills maintenance.  The company will continually review registration requirements regarding qualification and standards.

PN336      

And as I said to you this morning, the qualification and standards really picks up what's already prescribed in the schedules to the enterprise agreement and which already applies to these professional fire fighters.

PN337      

And that's confirmed again on page 69 at clause five where it's stated that the qualifications, competencies and operational experience as specified by the FRV Operational Agreement and the agreed training framework.  And, again, that training framework is something that's developed under the umbrella of the enterprise agreement by consultation between FRV and UFU, are the standards required for registrations of professional career fire fighters.

PN338      

So, in other words it's a process where the company will determine whether the fire fighters have met the standards which they're required to meet under the existing enterprise agreement and the existing of the agreed standards and frameworks and upon satisfaction of those things being achieved will issue a registration.

PN339      

And so the purpose and the process which is going to be followed is set out in the constitution.  And, as I said, that company was registered for the purpose of facilitating the registration scheme.

PN340      

Now, having spent a deal of time with the FRV going through the terms on which this could be established there were two questions which remained unagreed between the parties.  So, if I can direct your attention to the final form of the contract for supplied services which is at page 92 of the court book you will see that there are many, many pages with many, many conditions.

PN341      

All of those have been agreed by negotiation between the union and FRV.  And what you see and what is left are the two questions which, in our submissions, we have set out at paragraph two which remain outstanding and which the FRV and the UFU have told you in the past and they seek to have arbitrated by the Commission.

PN342      

And you will see there that the first question is in two parts – in four parts rather, and you will see that it asks whether or not the UFU should be included as a party to the service contract.  Secondly, whether a party to the consultation process under the service contract.

PN343      

Thirdly, a party to the dispute resolution process under the service contract, and fourthly, a party to a termination process which requires agreement from both FRV and UFU to initiate a termination of the service contract and the second question whether schedule 4 of the service contract should be amended to reflect the company's constitution.

PN344      

Now, can I direct your attention to the contract of supply of services and the document which was provided contains a number of clauses which have red marking to show the changes that are sought to be included and which we ask the Commission to arbitrate on.  And if I could just flag them and perhaps to help you I can hand you up a list of the clauses as a guide to where they are.

PN345      

THE COMMISSIONER:  Mr Borenstein?  Can I just ask a question please about the questions?  Am I to take it that the – what I would express as a prior question is answered in the affirmative and the question being something along the lines of should there be a board established through a company to register fire fighters.  Can I take it that that is an agreed matter between yourself and the FRV?

PN346      

MR BORENSTEIN:  Well, certainly everything has proceeded on that basis.

PN347      

THE COMMISSIONER:  Right.

PN348      

MR BORENSTEIN:  And the only – the course of the dispute up until this moment or up until Friday was that the parties had agreed that there would be a service contract used and it was common position that service contract would be with the company.  And you will see on page 92 that the template document has the service company as the provider of the service and the schedules also at page 117 identifies the contractor at clause one as this company.  Do you have that?

PN349      

THE COMMISSIONER:  I do.

PN350      

MR BORENSTEIN:  And that's an agreed position.  The parts of this document that aren't identified as being in contention are parts that have been agreed through negotiations between the parties.

PN351      

THE COMMISSIONER:  I think the next question might indicate I am jumping at shadows but please don't take this the wrong way.  I am kind of trained to do that in respect of these matters.  But when I read your submissions – from about paragraph 11 onwards to 16 – there's discussion of the establishment of an interim board which I understand to be something done within the FRV.

PN352      

MR BORENSTEIN:  Eleven onwards?

PN353      

THE COMMISSIONER:  Eleven to 15.

PN354      

MR BORENSTEIN:  Yes.  Yes.

PN355      

THE COMMISSIONER:  Yes.  And then it did various things which are explained in 12 and 13 and 14.  And then the question is at paragraph 15 it's expressed in the passive which is the business name, Victorian Professional Career Fire Fighters Registration Board as registered.  And I am not clear as to who or which entity registered it.

PN356      

MR BORENSTEIN:  The union.

PN357      

THE COMMISSIONER:  The union.  Okay.  Thank you.  All right.  Thank you.  And then that helps.

PN358      

MR BORENSTEIN:  I can clarify that for you, Commissioner.  The union registered the business name and was the promoter of the company.

PN359      

THE COMMISSIONER:  Sure.

PN360      

MR BORENSTEIN:  The union took steps to register the company.

PN361      

THE COMMISSIONER:  Sure.  And then when I go to paragraph 20 this is maybe where the shadow jumping comes in.  Paragraph 20 says that the company was registered which, again, I understand and am aware that was done by the union.  But I just wanted to exclude the possibility that the business name was somehow registered by someone else.

PN362      

MR BORENSTEIN:  No.

PN363      

THE COMMISSIONER:  Okay, thank you.

PN364      

MR BORENSTEIN:  Just to be 101 per cent clear and out of all the shadows the business name was registered by the UFU and the UFU commissioned the registration of the company.

PN365      

THE COMMISSIONER:  Right.  And then you have had negotiations.

PN366      

MR BORENSTEIN:  Yes.

PN367      

THE COMMISSIONER:  And the points where within the service agreement there's disagreement is the document you have just handed up.

PN368      

MR BORENSTEIN:  Yes.

PN369      

THE COMMISSIONER:  All right.  Okay.

PN370      

MR BORENSTEIN:  And the rest of the document as far as we have ever been told by FRV is not in contest.

PN371      

THE COMMISSIONER:  All right.  Well, what I might do just for the purpose of the record is to mark your outline of submissions and to mark that as Exhibit UFU1.

EXHIBIT #UFU1 OUTLINE OF SUBMISSIONS

PN372      

And then to mark the document you have just handed up – the clauses of draft service agreement to be considered in arbitration will be Exhibit UFU2.

EXHIBIT #UFU2 CLAUSES OF DRAFT SERVICE AGREEMENT

PN373      

Right.  Please proceed.

PN374      

MR BORENSTEIN:  Now, just going back to the questions for a moment, of course, in one sense the parts of the first question are cascading and really the later ones are consequential on the answer to the first one.  So if it's determined that the UFU should be included as a party to the service contract and then the answers to the other three we would say would necessarily follow.

PN375      

But can I take you – for the purpose of giving you the clauses and to show you the sort of issues and the clauses involved that arise so that you have a sense of what we're actually debating.

PN376      

So if I can perhaps just guide you through the document by reference to this list of clauses.  So the first one is on page 94 and you will see in the section headed 'Background' (a) FRV requires the services, which are defined.  The contractor has agreed to perform the services and 'contractor' is defined on page 95 as it means the first described in item one of schedule 1 which I drew your attention to a moment ago and that's the company.

PN377      

And then what we proposed to add to the agreement for the purpose of facilitating the UFU being a party is the passage that you see there in red marked 'B' which really describes the union and its representational role.  And so that's the amendment that we have suggested there.  And that by itself is probably and not on its face contentious.  It's really quite factual.

PN378      

Then on the next page in the definitions clause, the bottom of page 95, we have simply included a definition of the 2020 agreement which again is hard to see as being objectionable.

PN379      

And then on 98 – on page 98 – still in the definitions we have put in a definition of UFU referencing the union which again is really not on the face of it contentious.

PN380      

Then, if we go to page 105, and this goes to question 1(b) whether the UFU should be a party to the consultation process you will see at clause 7.3 it says that –

PN381      

'The parties must act in close consultation and cooperation of each other in relation to the performance of their obligations under this contract.  The contractor must immediately inform FRV'

PN382      

And we have inserted the words 'UFU'

PN383      

'Of any event, activity or OHS incident becoming known to the contractor that will or is reasonably enlightening to prevent or materially then the performance of the services by the contractor'.

PN384      

Now the significance of having the UFU as a party to that clause, if it's accepted it should be a party to the agreement is clearly that the union has an interest in the resolution of any difficulties that arise in the performance of the services by the contractor – the registration services – on behalf of its members and potentially in its own right as well.

PN385      

And so you – if a difficulty in performing the services does arise – we say it's appropriate and necessary that the union be involved by knowing about it and then potentially having the role to try and resolve those matters.

PN386      

Any system like this will not work unless the representatives of the employees affected have a role in ensuring that the services live up to expectations.  Then 7.4, again, has provision for the inclusion of the union in a few places.  And the first – 7.4 deals with conflict of interest – and it provides that –

PN387      

'The contractor must promptly notify FRV and UFU if at any time during the term a conflict of interest arises relating to performance of this contract by the contractor or any of its personnel.'

PN388      

And then –

PN389      

'If the contractor notifies FRV and UFU under clause 7.4.1 of a conflict of interest or FRV otherwise becomes aware of a conflict of interest, FRV will consult with the contractor'

PN390      

and we say and the UFU -

PN391      

'To determine the appropriate course for managing the conflict of interest.  And the contractor must implement any course of action with FRV and UFU to determine appropriate as soon as possible.'

PN392      

And we say that, again, having regard to the industrial context in which this scheme is going to operate it's appropriate that the union be involved in any processes that have the potential to affect the delivery of the service for the benefit of the union's members.

PN393      

Then, the next clause that's sought to be amended is clause 12.3.1 where you will see the insertion of the words, 'And the contract material'.  And this is an amendment which was sought by FRV in the discussions and which hadn't been resolved at the time that the dispute was lodged.  But if I can say to the Commission now and to FRV is an insertion which the union doesn't oppose.

PN394      

And it's intended, as we understand it, to cover the materials in the two definitions.  You will see in the definition on page 95 that contractor material means one thing and the contract material means another thing.  And it's sought to have both of those items covered by the license clause.

PN395      

So contractor material means all existing material provided by FRV to the contractor under the contract and that might be something like the results of the training course that a person has had when they're referred to the Board to be registered.

PN396      

And contract material means any material created by the company or its personnel in the course of performing its functions.  And so the clause provides for both of those categories of documents to be subject to the license which is granted by the contractor for FRV.

PN397      

And as I say the insertion of that clause is now accepted by the UFU and unless FRV has changed its mind about that that can be just ticked off.

PN398      

Now the next insertion is at page 111 – 111, clause 15.3 – I'm sorry I should actually direct your attention to page 110.  15.1 refers to a dispute notice and in that clause you will see that we have inserted the word 'parties' which seems to be a typographical error where that's been omitted.  So the notice of a dispute has to be given to the other parties.

PN399      

And in 15.2.2 at the bottom of page of the insertion of the word 'any' – again it seems to be a typo which left out the word.  In 15.3 on page 111 the addition is really a clarification or elucidation of the status quo provision that's already provided for in that clause and is put in for the purpose of avoiding disputation about it.

PN400      

And then at 15.6 there is a number of additions that are made to the dispute resolution procedure under 15.6.  And you will see – I won't take your time to read it – but you will see what provision is made for in 15.6.1.  And the provision there is consistent with the dispute that a dispute process under the enterprise agreement.  And then 15.6.2 sets out steps which mirror the provisions in the dispute resolution procedure under the enterprise agreement.

PN401      

Now the purpose of including that is to avoid a conflict between potential clauses in the agreement and issues that may arise under the enterprise agreement.  It's our position that if there was a grievance or a dispute about what was happening with the registration process it would be open to the union or an employee to raise a dispute under the enterprise agreement.

PN402      

It would be a dispute about the registration process.  It would be a dispute, therefore, about a matter pertaining and the processes of the enterprise agreement would be able to be invoked through to an arbitration.  It's undesirable, in our respectful submission, for there to be the potential for two streams of dispute resolution which may result in differing outcomes.  And so as a matter of efficiency we propose that clause 15.6 be amended in the way in which we have so that there is a single process which parties can take advantage of to produce a single result to resolve the dispute.

PN403      

Now, moving then to the next clause which is at page 112.  This is the clause 16 which deals with termination.  And here we seek to insert in clause 16.1 and 16.2 the requirement that the termination of the contract not be done without the agreement of the UFU.

PN404      

And the reason for that in industrial terms is obvious.  The UFU has undergone a prolonged process with the FRV to establish a registration process.  And it would be highly undesirable that the day after or week after or month after this is entered into the FRV can simply terminate the contract on four weeks' notice effectively, without any reason.

PN405      

And so we have proposed that in the interests of preserving the scheme which has been arrived at and agreed at that if FRV wishes to terminate the contract that it should make its case to the UFU and there should be agreement reached before that's done.

PN406      

And then 16.4 again simply includes the union as a part of the steps for termination and the termination goes ahead.  On page 117, in Schedule 1, there are some formal details that need to be inserted and they are formalities that would be inserted.  This is on page 118 in item 8.  And they are details that would be inserted in the contract if the Commission decides that the UFU should be a party and there are some other details for the contractor and FRV which would also be included before the final contract is actually signed.

PN407      

When we go across to Schedule 4 and this is part of the second question, whether Schedule 4 should be amended to reflect the constitution of the company.  And page 104 provides in red for clause 5 to be inserted, and clause 5 replicates the constitution of the company at clause 17.1 on page 83 of the court book.

PN408      

On page 126 there is the insertion of a reference to the consultation clause in the enterprise agreement in the original template document which was being used for discussions, the reference to the consultation clause fell out and this is simply reinserting it.  And then on page 127 at clause 10(b)(iii) there is a clarification of the drafting – nothing that we see as being of substance there.

PN409      

So they are the clauses that are affected by the questions and our submission is that all of those questions should be answered in the affirmative and that the contract should be amended in the way in which we have identified in the clauses that I have taken you to.

PN410      

Now you have already asked me and I have already said to you that the FRV has at all times in the discussions and before the Commission, agreed that a contract would be made with the company, and the only areas of dispute that have been raised – certainly raised with us – was as to the content of the contract and whether the UFU should be a party to it.

PN411      

And as I have indicated to you the content of the contract is virtually all complete and all agreed.  And the only outstanding issues are whether the UFU should be a party and how that should be reflected.  And you have sought to do that in those red markings on the document.

PN412      

Now, you have noted that in support of this application the union has filed a statement from Ms Campanaro.  The evidence in her statement has not been contradicted or challenged by FRV.  And we say it should be accepted for the purpose of this arbitration.

PN413      

We also submit and that if the Commission accepts our submissions then we would ask you to make an order to the effect of what I am about to hand up to you and to make this order on the basis that the contract, which is referred to in the order, will be a contract that is amended in the way in which we have identified in that annexure.  I am just getting a copy of it for you and for the other side.

PN414      

You see the proposed order is that FRV enter into a contract with the company and the UFU in the form and to the effect of the proposed service contract which is attached for the provision by the company of the services of registering qualified fire fighters for FRV and such other services as are provided for in the contract.  And so that's the order that we would ask for if we are successful.

PN415      

THE COMMISSIONER:  Mr Borenstein, I should mark this proposed order before I forget.  So the proposed order will be Exhibit UFU3.

EXHIBIT #UFU3 PROPOSED ORDER

PN416      

Can I just ask you a question please about the proposed order?  Midway through it says give effect to the proposed service contract which is attached as attachment 'A' to these orders.  Just for the sake of the record I am assuming that is what is LC10, that is it's attachment to Ms Campanaro's statement.

PN417      

MR BORENSTEIN:  No, it's not.

PN418      

THE COMMISSIONER:  No.  Okay.

PN419      

MR BORENSTEIN:  No.  That's a form of the – it is attachment 'A' at page 92 of the hearing book which I think - - -

PN420      

THE COMMISSIONER:  Correct, yes.

PN421      

MR BORENSTEIN:  Yes, I don't think it's attached to her statement.

PN422      

THE COMMISSIONER:  Okay, you're right.  I was looking at the wrong page.  All right.  Thank you.  Thank you.  Please go on.

PN423      

MR BORENSTEIN:  I am reminded it was meant to be an attachment to our outline of submissions but it got mixed up in the hearing book.  No criticism but that's where it landed.  So that's the document amended as we proposed.

PN424      

Now, in terms of the history which Ms Campanaro sets out in her witness statement at pages 32 to 37, paragraphs 17 to 34 of the statement.  Can we just draw attention to some particular aspects of it which give you a context and background to where we've landed with this.

PN425      

You will see that she states in April of 2020 there was an initial proposal to set up a registration board with an interim panel which was presented by Chief Officer Kenneth Brown from the MFB.  And that was presented to the Integrated Operational Consultative Committee and then following the Fire Services reform on the 25 September a second proposal was put to the Operation Consultative Committee which had been established under the new enterprise agreement and this one was to create an interim registration board and that was approved by the consultative committee.  And you have the minute of that at page 38 of the hearing book.

PN426      

So that's in September 2020.  And then on the 29 April 2021 FRV endorsed the approved proposal for an interim board and requested nominations from the UFU for panel members of that board and you will see that at hearing book page 48.  And then following that panel members were selected from both FRV and the UFU.  And the interim board met at its inaugural meeting on the 2 July 2021.  And you will see the minutes of that at page 50 of the hearing book.

PN427      

And in that meeting and you will see this in the minutes, a proposal to register all existing operational fire fighters and all new operational fire fighters was endorsed by the Board.  Resolutions were also passed to set registration fees and the appointment of an auditor and the remuneration for the Chair and an interim budget.

PN428      

And then following that the interim board has been exercising its registration functions and that's confirmed by annexures LC5 and LC6 of Ms Campanaro's statement which are at pages 52 and 54.  Discussions continued between the parties about the establishment of a permanent registration board to operate the registration scheme.  And that continued between December '21 and March 2022.  Not a great deal of progress was able to be made.  And so that prompted the UFU to file to raise a dispute on the 29 March of 2021 and that is the Form F10 which you have in the hearing book at page one.

PN429      

Now, on the 4 May, the company was registered.  On the same day the lawyers for FRV sent to the UFU a copy of a pro forma service contract with an explanation of the use for it.  And you will find this explanation at page 91 of the hearing book.  And you will see there that that's a communication from Mr Cabanese, the lawyer, for FRV to Ms Sakkas, the lawyer for UFU.  And it reads – 'Further to the conference this afternoon' – and I think that was a conference before the Commission –

PN430      

'FRV has asked me to provide you with the FRV's temporary contract that supplied services.  Could you please provide this to the UFU to assist it to draft the proposed service agreement between FRV and the company.

PN431      

FRV requests that the attached document be used as the basis for the proposed agreement because its terms are well understood by FRV and government and are tailored to address key risks that FRV is required to manage pursuant to its various legislative and insurance obligations.

PN432      

In addition it's useful to allow FRV to more effectively review the proposed agreement.  In these circumstances to the extent that UFU would exclude or amend the template clauses in the attached agreement please ensure that these changes are tracked et cetera.'

PN433      

So that's the origin, Commissioner, of the use of the service agreement.  It was done at the request of FRV for the reasons spelled out there being that, among other things, it's tailored to address key risks that FRV is required to manage pursuant to its various legislative and insurance obligations.  The very thing that the Minister asserts without any evidence this morning are matters of concern.

PN434      

And as you put it to Mr O'Grady this is their template agreement which they use for dealings with all of their suppliers of services – fire trucks, IT, whatever you like – they use this because it makes the provisions which they have identified there to assist them to discharge their governance and reporting obligations as a public sector entity.

PN435      

And as you have seen from the clauses that we went to this morning it imposes a range of obligations on the contractor to cooperate with FRV in the discharge of its public sector reporting obligations and governance obligations.  The company is required to do that as a part of its contractual obligations.  And so the use of this document, as the basis for a resolution of the setting up of the registration scheme was not something initiated by the union, but something accepted by the union as a way forward to accommodate the requirements of FRV to satisfy the people down the end of the Bar table who are worried about governance issues.

PN436      

And that's why we have agreed to a complex document like this with the sort of obligations that this contains which are highly unusual for an industrial agreement.  But, nonetheless, for the purpose of trying to achieve a resolution that is acceptable to FRV, and by which FRV can satisfy those that it answers to in terms of government's obligations.

PN437      

We have agreed to use this document but we don't concede and we never conceded that it needed to be this document but for the reasons I have explained in order to try and achieve a resolution on an amicable basis and a cooperative basis with FRV we have agreed to frame our discussions in the framework of the document.

PN438      

Now, as I said, having done that over an extended period of time we have reached agreement on all of the substantive regulatory provisions of the contract so that the contract is now essentially in the same form as the FRV would use for any supplier of service, whether it be for a short term for a long term or for a very long term.  And it is designed and presumably approved by the government for some level as being satisfactory to satisfy the regulatory obligations on FRV.  And so we reject any criticism on the part of the Minister about the adequacy of the clauses in the agreement that have been agreed.

PN439      

Now turning to the questions and dealing, firstly, with the question of whether the UFU should be a party to the service contract the service contract, as I have just explained is primarily a vehicle through which the parties have agreed to resolve an industrial dispute.  And that needs to be borne in the forefront of consideration of this issue.

PN440      

It's being used at the request and at the behest of the FRV.  It need not have been – it is not the only way in which this dispute could have been resolved.  As, for example, see the establishment of the interim board which has been established without any contract.  And it is providing the same sort of services which it's envisaged this company provide.  But having regard to the request from FRV that it needs this framework it's been agreed to use this framework.

PN441      

And although the contract contains a range of commercial contractual terms which the FRV say they require for the establishment of the registration process it's our strong submission that when you are assessing what should be in this agreement it's important not to lose sight of the industrial context and purpose of the agreement which is to resolve an industrial dispute about setting up a registration system for fire fighters.

PN442      

Now, bearing that in mind we submit that it would be highly unusual to make a resolution of an industrial dispute without the parties to that dispute being a party to the resolution.  And so if the service agreement is seen as being the resolution of the dispute to set up a registration scheme it would be extremely strange for the party to the dispute – the UFU which raised the dispute to be excluded from the resolution of that dispute.

PN443      

And we submit that there are important reasons and good reasons why the UFU should be made a party to the service contract in addition to that.  If the service contract doesn't include the UFU as a party then the UFU will not have standing, potentially, to protect the outcome of the dispute by being able to enforce its terms.  A curious result where it's the UFU that's created the dispute, raised the dispute and argued for the terms to be put in place in the interests of its membership.

PN444      

Neither the UFU nor its members would have any standing to do anything about the agreement if it went off the tracks for whatever reason.  That's an outcome which would, in our respectful submission, undermine the resolution of the dispute and risk further disputation between the union and the FRV.  And so we say from an industrial point of view it's necessary and appropriate that the parties to the dispute be parties to the document that resolves the dispute.

PN445      

Next we say that the main beneficiaries of the establishment of the registration scheme, although not the only ones because the FRV will have the benefit of this as well, but the main beneficiaries we say will be the operational in fire fighters employed by FRV and almost all of those are members of the UFU.

PN446      

The UFU consequently has a significant interest in being able to represent its members in the delivery of the scheme through this agreement sought by the FRV.  It's appropriate in our submission that the UFU should be a party in order to ensure that the scheme works as intended and that it can be involved in the resolution of any difficulties or issues that arise.

PN447      

To give an example there is presently the interim board that's been established on an informal basis, if you like, that you have heard about.  If the process which the interim board was administrative struck some hurdle, struck a snag, wasn't operating as intended and so on, the UFU would have a role because it came out of the consultation process the UFU would have a role in seeking to resolve that.

PN448      

Now, giving the UFU a similar role in relation to this agreement, which is just another way of producing the same process is no different than the role the UFU has presently.  You haven't heard from the FRV or from the Minister who seems to know everything about this.  You haven't heard any complaint about the conduct of the UFU vis-a-vis the operation of the interim board.

PN449      

There has been cooperation between the FRV and the UFU in establishing that the personnel for the board and in the board's functioning.  There has been no complaint.  There has been nothing documented about any disruption.  There has been no complaint about FRV being precluded from carrying out its statutory function to the full.

PN450      

This agreement is not intended to do anything different and just as the UFU it would be entitled and having standing to ensure the proper operation or the intended operation of the registration by the interim board we say it's consistent with that that where we have now moved on to the establishment of a permanent board through a document which is advanced by the FRV that the UFU should have a similar role now, as it has in relation to the interim board.

PN451      

Now, we say that that would be additionally anomalous in circumstances where although it wasn't necessary for the purposes of resolving an industrial dispute but simply for governance issues that were perceived by the FRV as needing to be addressed that the establishment of the final board in contrast to the interim board needed to be done within the framework of something called a service agreement.

PN452      

And we say that the UFU should not be prejudiced or disadvantaged by the fact that in the interests of trying to reach agreement it has accepted the mode of resolution that has been suggested by the FRV.  And so for those reasons we say that there's a compelling basis on which the UFU should be made a party to this agreement.

PN453      

Now, the second part of the first question is whether the UFU should be a party to the consultation process under the service contract.  And we have shown you that clause, which is clause seven I think.  And you will see that that's on page 105 of the hearing book and you will see for the purpose of the inclusion of the UFU is to allow it to be involved in any consultations and discussion about any difficulties that arise with the delivery of the registration scheme.

PN454      

Now the involvement of the union in consultations about things that occur at the workplace and that affects its members at the workplace is not novel, it's not unusual at all, and we would say that in the context of an agreement like this which is providing for a registration system for employees the employees' confidence in the system will be significantly tested and perhaps undermined if they cannot have their industrial representative involved in the resolution of any difficulties that arise.

PN455      

And there are no other mechanisms where the fire fighters have access to any discussions or consultations about those matters.  And so we say that from an industrial point of view, given that this is settlement of an industrial matter the inclusion of the UFU in the consultation process is not something unusual or radical but, indeed, commonplace and we ask that that be done.

PN456      

In relation to question 1(c) which deals with the dispute resolution procedure and that's at clause 15 on page 111.  I have explained to you already why we say that it's appropriate and, indeed, productive of an efficacious resolution of an industrial dispute to have a dispute resolution procedure which replicates the process under the enterprise agreement.  As I said to avoid the potential for a multiplication or a multiplicity of disputes about the same thing potentially arising in different places and producing different outcomes and therefore resulting in confusion and uncertainty.

PN457      

We say that on proper analysis this clause doesn't prejudice the FRV in any way but seeks to smooth the way for cooperative and efficient and effective industrial relations where issues do arise and need to be resolved.  And so we commend that variation to the Commission for inclusion.

PN458      

And then we go to the issue of termination and the discussions between the parties has stalled.  This is clause 16 on page 112.  The discussion between the parties stalled on this issue around whether or not the UFU should have a role in the termination of the agreement.  And for the reasons which I explained a little while ago we say that it would put the resolution of this dispute at serious jeopardy if the contract could be terminated, the contract being the settlement of an industrial dispute could be terminated and rendered at nought by the unilateral action of FRV without the room for any input or participation by the other party to the industrial dispute and the settlement of the industrial dispute, namely the UFU.

PN459      

Then, finally, in relation to question two - - -

PN460      

THE COMMISSIONER:  Before you go any further, Mr Borenstein, just looking at clause 16, is it wise to extend prior agreement to the UFU in the case of an insolvency event?

PN461      

MR BORENSTEIN:  In the case of what, sorry?

PN462      

THE COMMISSIONER:  An insolvency event.

PN463      

MR BORENSTEIN:  Well, Commissioner, I'll just have a look at what's the definition of insolvency event.

PN464      

THE COMMISSIONER:  Quite a bit.

PN465      

MR BORENSTEIN:  The reason why that wasn't a matter that troubled anybody's mind in relation to this is because of the nature and character of the company.  The company doesn't have a parent company.  It's a single purpose company which is to provide registration services and the agreement provides it will receive a certain amount of money for each fire fighter that is registered and then money has been computed and calculated between the company and FRV to cover the expenses.

PN466      

And this is not the large truck company that manufactures fire fighting equipment and so on.  And this is one of the examples where the fact that this is a commercial contract is probably inapposite to the arrangement.  And it's highly unlikely, given the nature of this company that any of the insolvency events that are listed in the definitions on page 96 would arise.  But if that's a matter of concern and it hasn't been raised with us I must say, but if that was a matter of concern we'd get instructions about whether that can be excluded from the agreement.

PN467      

The nub of the problem is as I said to you that the union is concerned that having reached an agreement that the agreement can be undone without any reference back to it.  So if I then go to the second question which deals with the schedule.  Schedule 4 is on page 124.  Clause 5 of the schedule simply replicates the clause in the constitution of the company and simply forms part of the registration system which is being put in place.

PN468      

And then the second part of the amendment to the schedule is the reference to the consultation clause which is on page 126 which, as I indicated earlier, we think is just a typographical error in the production of renewed versions of this agreement over a period of months.  And we don't see that as being anything of any great consequence.

PN469      

And so, Commissioner, they are the grounds on which we submit that the question should be answered in the affirmative and an order in the form that we have handed up to you in UFU3 should be made.  Noting again that the contract would be annexed to the order would be that which appears at page 92 of the court book with the inclusions that we have marked up in red on the document.

PN470      

THE COMMISSIONER:  Mr Borenstein, on that point, could I ask your solicitors, please to provide my Chambers with a Word copy of the proposed order?

PN471      

MR BORENSTEIN:  Yes.  We can certainly do that.

PN472      

THE COMMISSIONER:  But also attaching the final version you want of attachment A.

PN473      

MR BORENSTEIN:  We can do both.

PN474      

THE COMMISSIONER:  All right.  Thank you.  That way there's no - - -

PN475      

MR BORENSTEIN:  Commissioner, do you want us to maintain the highlighting of the bits we want to add?

PN476      

THE COMMISSIONER:  Maybe if you include in the tracked changes then if I eventually get to make the order we can take the tracking off.

PN477      

MR BORENSTEIN:  One way or another we will highlight dual parts.

PN478      

THE COMMISSIONER:  All right.

PN479      

MR BORENSTEIN:  Yes.

PN480      

THE COMMISSIONER:  Thank you.

PN481      

MR BORENSTEIN:  Thank you, Commissioner.

PN482      

THE COMMISSIONER:  So, Mr Borenstein, as well in respect of Ms Campanaro's statement you don't propose to call her.

PN483      

MR BORENSTEIN:  I'm sorry?

PN484      

THE COMMISSIONER:  I'm sorry.  You don't propose to call Ms Campanaro as a witness?

PN485      

MR BORENSTEIN:  No.  We're content for what she says in her statement.

PN486      

THE COMMISSIONER:  No.  Okay.  Sure.  And I just want to check that there's no objection to that course.  No?  All right.  In that case Ms Campanaro - - -

PN487      

MR BORENSTEIN:  I should say we do rely on that statement.

PN488      

THE COMMISSIONER:  Yes.

PN489      

MR BORENSTEIN:  I don't know whether you want me to formally tender it but we do rely on that.

PN490      

THE COMMISSIONER:  I was about to do that.  So the witness statement of Laura Campanaro with 10 attachments will be Exhibit UFU4.

EXHIBIT #UFU4 WITNESS STATEMENT OF LAURA CAMPANARO WITH 10 ATTACHMENTS

PN491      

MR BORENSTEIN:  Thank you.

PN492      

THE COMMISSIONER:  All right.  Now, Mr Harding, do you wish to make any submissions?

PN493      

MR HARDING:  I do, Commissioner.

PN494      

THE COMMISSIONER:  Is it convenient to do it now?  Or do you wish to break till tomorrow?

PN495      

MR HARDING:  We could do it tomorrow if you're content to break now.

PN496      

THE COMMISSIONER:  All right.  Can I maybe just check with Mr O'Grady the length of your submissions?

PN497      

MR O'GRADY:  I would have thought only slightly longer than what I said this morning, Commissioner, if that - - -

PN498      

THE COMMISSIONER:  I've forgotten that, I am sorry.

PN499      

MR O'GRADY:  I'm sorry.  I would have thought well under an hour.

PN500      

THE COMMISSIONER:  Okay.  All right.  Well, look maybe in that case if we do adjourn until 10 o'clock tomorrow.  All right.  Okay, thank you.

ADJOURNED UNTIL TUESDAY, 30 AUGUST 2022                        [3.58 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

EXHIBIT #MINISTER 1 OUTLINE OF SUBMISSIONS OF MR O'GRADY (ON BEHALF OF THE MINISTER FOR EMERGENCY SERVICES) DATED 22/08/2022........ PN31

EXHIBIT #UFU1 OUTLINE OF SUBMISSIONS............................................. PN371

EXHIBIT #UFU2 CLAUSES OF DRAFT SERVICE AGREEMENT............ PN372

EXHIBIT #UFU3 PROPOSED ORDER............................................................. PN415

EXHIBIT #UFU4 WITNESS STATEMENT OF LAURA CAMPANARO WITH 10 ATTACHMENTS.................................................................................................. PN490