C2016/2892, Transcript of Proceedings [2016] FWCTrans 106 (30 March 2016)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1053200

---

JUSTICE ROSS, PRESIDENT

C2016/2892

s.739 - Application to deal with a dispute

United Firefighters' Union of Australia

and

Metropolitan Fire & Emergency Services Board

(C2016/2892)

Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010

Melbourne

9.00 AM, TUESDAY, 15 MARCH 2016

PN1

JUSTICE ROSS: Could I have the appearances please. Perhaps the MFB first.

PN2

MS RICHARDS: Good morning, President, it's Ms Richards. I (indistinct) the MFB. I also have in the room from the MFB, Jeanette Pearce and from my instructors, Corrs Chambers Westgarth, Alan Coleman, Sarah Clark and Amanda Lockett.

PN3

JUSTICE ROSS: Thanks, Ms Richards, and for the UFU?

PN4

MR KENSEY: If it pleases actually, President, I appear, Mr Kensey, with Mr Dixon for the UFU. We are in Sydney, our clients are in Melbourne.

PN5

JUSTICE ROSS: Are they hooked into the hearing, Mr Kensey, is that what you're putting, or - hello?

PN6

MR KENSEY: We believe so.

PN7

JUSTICE ROSS: Okay. Look, shortly after listing the matter, I received the, or my associated received, an email from the UFU. So what I have in front of me, firstly, the correspondence which constitutes the application by the MFB dated 10 March 2016, which is the referral application setting out the grounds, and then I have the email from the UFU dated 11 March. Do each of you have that material?

PN8

MR KENSEY: Yes, President.

PN9

JUSTICE ROSS: Well - - -

PN10

MS RICHARDS: Mr President, if I could just be clear which one we're referring to and is there an amount of correspondence related to this matter but it was an email from Friday afternoon, is that correct?

PN11

JUSTICE ROSS: Yes. Well I've only got two bits. You might have corresponded between you but there's only two bits of correspondence that I've received. One is the email of 10 March which is the application by Corrs Chambers Westgarth on behalf of the MFB and the other is an email from Tonia Sarkis on behalf of the UFU of 11 March sent at 5.16 pm. You've got that, Ms Richards?

PN12

MS RICHARDS: It's okay, yes, thank you.

PN13

JUSTICE ROSS: Well it seems on the basis of that, the applications for referral is not opposed. Is that still the position? Or is agreed, rather?

PN14

MR KENSEY: We agree that it is appropriate for the matter to be referred but on the basis that's identified in our email which refers to the determination of the question related to clause 13 of the agreement, so.

PN15

JUSTICE ROSS: Yes, but doesn't paragraph B of the email, doesn't that depend on the finding in relation to paragraph A? Because as I understand it, the issue in contention is whether the consultation clause applies in the circumstances and that is from, and I take this from the UFU's original application, the one that's sought to be referred, the issue in contention is that the MFB maintains that its actions that the UFU's complaining about relate to the recruitment of new employees and therefore do not fall within the scope of the consultation clause.

PN16

MR KENSEY: That's right.

PN17

JUSTICE ROSS: That seems the issue isn't it?

PN18

MR KENSEY: Yes, it is and although our letter referred to clause 13, clause 13 is attracted by clause 15 which provides that where the employer wishes to implement change in matters pertaining to employment relationship in any of the workplaces covered, the provisions of clause 13 will apply.

PN19

The question that is raised that we've sought to identify in our email as to the application of clause 13 is the question that raises the same legal issue as identified in 8(d) of the MFB correspondence.

PN20

JUSTICE ROSS: Yes.

PN21

MR KENSEY: We agree that it is appropriate that that issue, which appears to be the one that divides the parties and which appears to be the one that has propelled the MFB to take the steps in the way that it has, would ideally be resolved as soon as possible. It is obviously addressed in our Federal Court proceeding but when that would be resolved in that proceeding is another question. We have obviously no objection to a more (indistinct) resolution of that within Fair Work.

PN22

JUSTICE ROSS: Yes. If I look at your original application, the F10 filed by the UFU, and if I go to clause two of that application which is about the dispute and ask what the dispute is about and then in eight numbered paragraphs, the UFU identifies the dispute, the essence of which seems to be captured in paragraph six and seven and the issue in dispute seems to be whether or not the MFB is obliged to consult in accordance with the agreement and in relation to its review of recruitment procedures and the implementation of changes following that review.

PN23

MR KENSEY: That's the intent and that's correct.

PN24

JUSTICE ROSS: All right. Well if that's the essence of the dispute, without necessarily getting into a debate about what the precise question might be, it appears that there's a common position between each of you that that dispute ought to be referred to a Full Bench pursuant to section 615A. Ms Richards, I should perhaps ask you this, you've seen the question that's put on behalf of UFU and you've heard how I've characterised the dispute that's the subject of your referral application, is there anything about that that you take issue with?

PN25

MS RICHARDS: The only issue that the MFB would take, your Honour, is that we regard the dispute as being about more than whether clause 13 of the agreement is engaged. It's also a question of whether clause 15 is engaged and whether the dispute resolution clause, clause 19, is engaged. But there's a common underlying issue which is where the review of the procedures and the changes that the MFB seeks to implement are matters pertaining to the employment relationship.

PN26

JUSTICE ROSS: Yes. Well, that was why I didn't - - -

PN27

MS RICHARDS: (Indistinct) there are some more clauses involved.

PN28

JUSTICE ROSS: Yes, that's why I didn't really want to focus so much on the precise question, rather focus on what the characterisation of the dispute is that's to be referred and that really is - the issue is whether or not the MFB's reviews of recruitment procedures and the implementation of any changes made as a result of that review fall within the scope of the agreement and that will require a consideration of generally the agreement but also the particular clauses within it. But that seems to be the issue that you're each asking the Full Bench to determine. Is that right?

PN29

MS RICHARDS: Yes, your Honour.

PN30

MR KENSEY: That's right.

PN31

JUSTICE ROSS: Is that right from your perspective, Mr Kensey? All right.

PN32

MR KENSEY: That is, your Honour. That's the essential question we've got to activate in the (indistinct) dispute matter which you've identified.

PN33

JUSTICE ROSS: All right, and do I take it that, really for the reasons that are identified in the application as to why it would be in the public interest to refer this matter to a Full Bench, that you're both in agreement about those broad public interest considerations in this matter?

PN34

MR KENSEY: We agree that in all of the circumstances, it is appropriate to have the question that has been identified resolved as soon as it can be and there are public interest considerations that are involved in that submission.

PN35

JUSTICE ROSS: All right. Well can I just go to - in the event that it was referred, is it a matter that should be dealt with perhaps in the first instance? I take it there's no evidence, or is there, that's going to be called by either party? It appears that the nature of the dispute would turn on the proper construction of the agreement but am I wrong about that? Is either party intending to call evidence in relation to this issue?

PN36

MS RICHARDS: Yes, your Honour. We do think that some evidence will be required.

PN37

JUSTICE ROSS: Is that to explain what the nature of the review is and those sorts of issues?

PN38

MS RICHARDS: Yes, to do that and to, yes, to explain the nature of the review, the changes that the MFB seek to implement and also to address the factual issue of whether these changes have any connection with the employment relationship in the sense identified by the High Court in Red Cram.

PN39

JUSTICE ROSS: All right.

PN40

MS RICHARDS: In MFB's case that the change they're trying to implement have no impact on safety standards and (indistinct).

PN41

JUSTICE ROSS: Okay, I might get you to just speak into the phone, Ms Richards. You're coming in and out of the conversation - - -

PN42

MS RICHARDS: Sorry, your Honour.

PN43

JUSTICE ROSS: - - - depending on where you're moving your mouth in relation to the handset. All right, so - - -

PN44

MS RICHARDS: I have it on hands free, your Honour.

PN45

JUSTICE ROSS: No, that's fine.

PN46

MS RICHARDS: Should I say what I - - -

PN47

JUSTICE ROSS: No, no, no, that's fine. I just wanted to test whether you were going to call any evidence and it seems that you'll be calling some for the reasons you've articulated. I take it, Mr Kensey, you want to reserve your position in relation to that until you see what the MFB does, yes?

PN48

MR KENSEY: I do. It's fair to say we have a fair idea of the sort of material that my friend's talking about but it's better to reserve our position I think.

PN49

JUSTICE ROSS: All right. Ms Richards, and I don't put this by way of characterising who would bear the onus in these matters, et cetera, but given that you want to call evidence to explain what it is you're doing and why you say it does not fall within the scope of the agreement, do I take it from that that you'd be - if I was to make directions shortly after constituting a Full Bench and consulting with the Full Bench, if directions were made then for the filing of material, that you would then file your material, any witness evidence you wish and a written submission in support of your contention and then the UFU would reply and then we would have a hearing for the purposes dealing with the evidence and also for the purpose of short oral argument.

PN50

MS RICHARDS: Yes, we're more than happy to follow that course, your Honour.

PN51

JUSTICE ROSS: How quickly can you get all that material together and would you be able to file it, for example, by 4 o'clock next Wednesday?

PN52

MS RICHARDS: Is that a Wednesday, the 23rd, your Honour?

PN53

JUSTICE ROSS: Yes, I think so.

PN54

MS RICHARDS: Not Wednesday tomorrow?

PN55

JUSTICE ROSS: No, not Wednesday tomorrow. Although if you can do it Wednesday tomorrow, that's fine, but I had in mind - - -

PN56

MS RICHARDS: (Indistinct) do that, your Honour.

PN57

JUSTICE ROSS: No. Mr Kensey, do you have - - -

PN58

MS RICHARDS: (Indistinct) people who will be doing the work, your Honour.

PN59

JUSTICE ROSS: Sorry, what was that?

PN60

MS RICHARDS: I'm just consulting with people who will be doing the bulk of the work and we think we can make that deadline.

PN61

JUSTICE ROSS: Well I think it's desirable that it be done prior to the Easter break and I think requiring it on the Thursday is probably not going to be that helpful because people will be away later on the Thursday in any event. Mr Kensey, given the Easter break, if the MFB was directed to file their material by 4.00 pm Wednesday of next week, when would your client be in a position to respond?

PN62

MR KENSEY: We would think at the least a week after the end of the Easter break. I mean we would think that the Commission wouldn't want to impose an obligation that would actually be effectively running during the Easter break.

PN63

JUSTICE ROSS: No.

PN64

MR KENSEY: If what I think we'd effectively have no difficulty with, your Honour, is if we were given, bearing in mind the Easter break, a period of time equivalent to that which the MFB is given to put the material on, that would (indistinct) our position.

PN65

JUSTICE ROSS: If, for example, you were to file by ‑ well, I'm not sure that this is precisely the same number of days, taking into account the Easter break, but if by Wednesday, 6 April, so that's the Wednesday of the week following the week of the Easter break?

PN66

MR KENSEY: We think that we'd be able to accommodate that. I wonder if the - we, of course, don't know what's coming down the line.

PN67

JUSTICE ROSS: Of course. There can be liberty to apply, Mr Kensey, that's - - -

PN68

MR KENSEY: Yes, thank you, that that be included.

PN69

JUSTICE ROSS: No, that's fine. I appreciate that it depends on the volume of material and whether or not you want to respond to the witness evidence, et cetera, so I know it's difficult to estimate that but as you say, you probably have a - or at least on your side of the bar table, there'd be an appreciation of what the MFB's likely to be putting.

PN70

MR KENSEY: Yes, in general.

PN71

JUSTICE ROSS: Yes, all right. Well thank you both for that indication. Can I indicate that I am satisfied that it's in the public interest to refer the dispute to a Full Bench and I will do so under section 615A. I'll issue a short direction to that effect later today. I'll constitute the Full Bench later today and we should issue directions in relation to the matter as I've outlined.

PN72

What I'll do is once the Bench has been constituted, find out their first availability after 6 April and get a number of days where they might be available and I'll have my associate liaise with each of the parties to see if we can find a mutually convenient date. Can you give me an indication now as to any restrictions on your availability in that second half of April? Here I'm looking at from the week commencing 11 April through to the end of April. Are you able to advise me what limitations there might be on you in that period at the moment?

PN73

MS RICHARDS: Your Honour, the first one to bear in mind is that both of the parties are involved in a separate Full Bench in relation to an award modernisation matter.

PN74

JUSTICE ROSS: Yes. No, I appreciate that. I'm on that Full Bench.

PN75

MS RICHARDS: Yes, so clearly that would be an inconvenient date for the parties. For myself, 11 and 14 April are a problem. For my junior, the 18th to the 20th, but that covers the period of the Full Bench. From Anzac Day onwards, we're looking pretty good.

PN76

JUSTICE ROSS: All right. Mr Kensey, are you able to give any indication as to your availability in that period?

PN77

MR KENSEY: I think within the standard dates that your Honour identified, as between me and my junior, there's nothing that couldn't be moved and we would move in respect of this matter because of its nature.

PN78

JUSTICE ROSS: All right.

PN79

MR KENSEY: We have no objection from our point of view.

PN80

JUSTICE ROSS: All right. Well thank you both for that and as I say, directions will be issued in relation to the matter later on today or at the latest, tomorrow morning and once they have a hearing date, having regard to what you've both said, I'll just get my associate to confirm with your instructors availability on the date that the Full Bench is available. Nothing - - -

PN81

MR KENSEY: Could I just raise a few matters before you adjourn.

PN82

JUSTICE ROSS: Certainly.

PN83

MR KENSEY: Firstly, it will be appreciated by everyone that this matter has come on and in circumstances where the Federal Court proceedings are extant and indeed we're due back before the Federal Court of Friday of this week and it would be understood that our position in relation to the matter has been undertaken without prejudice to our rights in the Federal Court and we just wondered whether it might be appropriate to note generally that the position of the parties would presumably without be in this matter without prejudice to those rights. It would probably be understood in any event. Your Honour might think so.

PN84

JUSTICE ROSS: Yes.

PN85

MR KENSEY: That's the first matter. The second matter is this, without knowing what the nature and extent of the evidence is, the question of how much time might be required for a hearing might be difficult to assess. That is a matter which presumably will have to be addressed, or may have to be re-visited when we've seen the extent of the evidence.

PN86

JUSTICE ROSS: Yes. Look, I suspect once the material is filed, there would probably be a short mention prior to any hearing in any event just to ascertain the extent of any cross-examination and any other programming issues. But as I say, in any directions in relation to the matter, there'd be liberty to apply and at this stage, it would probably be set down for Monday but that may depend very much on the nature and extent of the evidence.

PN87

MR KENSEY: Thank you, your Honour.

PN88

JUSTICE ROSS: All right. Is there anything you wanted to say in response to any of that, Ms Richards?

PN89

MS RICHARDS: Well, your Honour, in relation to the first point raised by Mr Kensey, of course the fact that the question of whether the dispute is a matter that pertains to the employment relationship (indistinct) defending court proceedings and the MFB will likely raise with his Honour, North J, the fact that a Full Bench is to be convened to deal with that common matter, if what Mr Kensey's referring to is the maintenance of the status quo, then of course his client has whatever right it has in the Federal Court to pursue that matter.

PN90

In relation to duration, I agree what really is then (indistinct) cross-examination is then we can make a more sensible assessment of how long it's likely to take.

PN91

JUSTICE ROSS: All right. Nothing further?

PN92

MS RICHARDS: No, your Honour. Thank you.

PN93

MR KENSEY: No.

PN94

JUSTICE ROSS: No, all right. Thanks very much for your attendance. The directions will be issued shortly. I'll adjourn.

PN95

MS RICHARDS: Thank you.

ADJOURNED INDEFINITELY [9.26 AM]