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Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016



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ISSN 1328-8091

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BILLS DIGEST NO. 19, 2016-17 10 OCTOBER 2016

Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 Jonathan Mills Law and Bills Digest Section

Jaan Murphy Law and Bills Digest Section

Contents Purpose of the Bill ............................................................... 2

Structure of the Bill ............................................................. 2

Background ......................................................................... 2

The Victorian CFA situation ................................................... 2

The present Bill ...................................................................... 3

Committee consideration .................................................... 4

Senate Education and Employment Legislation Committee ............................................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

Parliamentary Joint Committee on Human Rights .................. 6

Key issues and provisions..................................................... 6

Objectionable emergency management terms ....................... 6

Continued control by States over their volunteers ................. 6

Constitutional issues ................................................................ 7

Right to make submissions ...................................................... 8

Is the Bill retrospective? .......................................................... 9

Application of the Bill’s provisions to existing agreements and determinations ........................................... 9

Concluding comments ......................................................... 9

Date introduced: 31 August 2016

House: House of Representatives

Portfolio: Employment

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

October 2016.

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Purpose of the Bill The purpose of the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 (the Bill) is to amend the Fair Work Act 20091 (the FWA) to make unlawful any agreement term (under the FWA) that has the effect of restricting a state emergency service or fire-fighting body in its use of, or relations with, its volunteers. The Fair Work Commission (FWC) will not be able to approve enterprise agreements (EAs) or make workplace determinations include such terms, and any such terms in existing EAs and determinations will no longer be enforceable.

The Bill also provides an entitlement for volunteer bodies to make submissions in relation to matters before the FWC that may affect them, if the matter relates to an enterprise agreement or workplace determination.

Structure of the Bill This Bill comprises a single Schedule of amendments to the FWA.

Items 1 to 4 add an ‘objectionable emergency management term’ to the list of unlawful terms in existing section 194, and provide definitions for this term and the bodies to which it would apply.

Items 6 to 8 provide volunteer organisations with the ability to make a submission in relation to a matter before the FWC where the matter affects their volunteers.

Item 9 inserts application provisions to ensure that the amendments will apply after commencement to enterprise agreements, workplace determinations and matters before the FWC.

Background The Victorian CFA situation An enterprise agreement between the Country Fire Authority (CFA) and the United Firefighters’ Union of Australia (‘UFU’)2 was approved by the FWC in 2010, under the FWA.3

A clause of that agreement required the CFA to employ 342 career firefighters over a six year period and to conduct a minimum of three recruitment courses per year, each including training for at least 30 recruits.4

The CFA did not comply with the recruitment clause, or with another recruitment arrangement agreed between the parties following the UFU’s notification of an industrial dispute to the Commission about the CFA’s non-compliance.5

The UFU commenced a proceeding in the Federal Court in June 2012 to have the recruitment and training carried out and to seek penalties against the CFA. In its judgement in January 2014 the Federal Court found that the relevant clauses in the agreement were invalid.6 The court considered that the CFA was a constitutional corporation—thereby triggering the Commonwealth’s corporations power under section 51(xx) of the Constitution— and so was validly covered by the Commonwealth’s workplace relations legislation, but found that the disputed clauses were invalid as they breached the implied constitutional limitation on Commonwealth laws interfering with state governments’ capacity to function as governments.7

On appeal, the Full Federal Court in 2015 found in favour of the UFU, agreeing that the CFA was a constitutional corporation, but finding that the implied constitutional limitation had not been breached as the clauses in question were part of a voluntary agreement and so did not involve the imposition of any impairment on the state government by a Commonwealth law.8

1. Fair Work Act 2009 (Cth) (FWA). 2. United Firefighters Union of Australia (UFU), Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Enterprise Agreement 2010, UFU website. 3. United Firefighters Union of Australia v Country Fire Authority (2014) 308 ALR 438, [2014] FCA 17; (referred to as UFU v CFA 2014), [1]. 4. Ibid., [2].

5. Ibid., [3].

6. Ibid., [7].

7. The so-called Melbourne Corporation principle, further developed in Re Australian Education Union & Australian Nursing Federation; Ex Parte Victoria (1995) 184 CLR 188, [1995] HCA 71 (referred to as AEU); and later cases as described in United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497, [2015] FCAFC 1 (referred to as UFU v CFA 2015) at [179]-[214].

8. UFU v CFA 2015, op. cit.

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The 2010 agreement was due to expire in September 2013, but is still in operation. Negotiations for a new agreement also commenced in 2013.

In mid-2016 the Victorian Government replaced the Minister responsible and reconstituted the Board of the CFA.9 A new enterprise bargaining agreement10 has since been approved by the board but the volunteers’ representative body, Volunteer Fire Brigades Victoria (VFBV) took the CFA to the Victorian Supreme Court11 to challenge the new agreement on the grounds that it potentially interferes with volunteers as:

• the CFA failed to fulfil their statutory duties under the Country Fire Authority Act 195812 (Vic) to consult with VFBV, and

• the terms of the agreement are inconsistent with the statutory obligations of the CFA (including fulfilling the consultation requirement under the Act and constitute an unlawful fettering of the CFA’s powers).

In part this relates to statutory obligations to recognise consultation rights under the CFA Volunteer Charter.13

Following an injunction, the new agreement will not be voted upon pending the outcome of the court action. The matter is ongoing at the time of writing.

The Victorian Government has stated:

The CFA Board has given an undertaking to the Supreme Court of Victoria not to put the proposed agreement to a ballot of its career firefighters pending the outcome of Victorian Supreme Court litigation involving the Volunteer Fire Brigades Victoria and the CFA. 14

Summary of the dispute From the above, it can be seen that in very simple terms, the CFA dispute is about terms in the proposed enterprise agreement (EA) that would:

• require that the CFA employ a specified number of career firefighters on each shift (many of which are members of the United Firefighters Union (UFU)) and

• use only career firefighters to perform certain work. 15

In effect, on one hand it is argued that the dispute is about whether the deal would give the UFU too much power over the CFA’s operational decision-making processes (and if it would contravene its volunteer charter) whilst on the other hand the UFU argues that the dispute is about necessary measures to protect the safety of both workers and volunteers.16

The present Bill During the 2016 Federal election campaign the Victorian dispute became an election issue due to the application of the FWA and the involvement of the FWC. Prime Minister Malcolm Turnbull was reported as saying that, if returned, the Government would amend the FWA to ‘expand the list of “objectionable terms” that cannot be included in enterprise agreements to include anything that would restrict the ability of volunteer emergency services authorities from carrying out their duties’.17

9. Department of Employment, Submission, no. 2, to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, September 2016, p. 3. 10. Proposed Country Fire Authority-United Firefighters Union of Australia Operational Staff Enterprise Agreement 2016, CFA website. 11. Volunteer Fire Brigades Victoria v CFA (Discovery ruling) [2016] VSC 573. 12. Country Fire Authority Act 1958. 13. Volunteer Fire Brigade Victoria (VFBV), Victoria CFA Volunteer Charter, VFBV website, 27 February 2011. The CFA states that ‘The Volunteer

Charter is an agreed commitment by the State of Victoria, CFA and VFBV on behalf of CFA Volunteers to each other. It ensures the State of Victoria and CFA will commit to consultation with Volunteers about all matters which might reasonably be expected to affect Volunteers.’ CFA, ‘Act and regulations’, CFA website. The Volunteer Charter is recognised and the CFA must have regard to its principles, under sections 6F to 6I of the Country Fire Authority Act 1958 (Vic). The VFBV’s concerns regarding the agreement and process are outlined further on its website: A Ford (CEO VFBV), ‘CFA board approves UFU EBA - no changes put forward by volunteers included’, VFBV website, 14 August 2016. 14. Victorian Government, Submission, no. 1, to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work

Amendment (Respect for Emergency Services Volunteers) Bill 2016, 12 September 2016, p. 8. 15. J Teicher, ‘What's the Victorian government's dispute with the CFA about? And how will it affect the election?’, The Conversation, 1 July 2016. 16. S Whyte, ‘Fighting fire with … what, exactly?’, Crikey, 6 June 2016. 17. R Harris, ‘Vow to fireys backed’, Herald Sun, 11 July 2016, p. 5.

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In his second reading speech for this Bill, the Prime Minister referenced the Victorian dispute as the reason for the introduction of this Bill, and stated:

… (t)his bill will ensure that enterprise agreements cannot be used in a way that permits unions to exert power over the valuable contributions of volunteers. 18

Committee consideration Senate Education and Employment Legislation Committee The provisions of the Bill have been referred to the Senate Education and Employment Legislation Committee for inquiry with a reporting date of 10 October 2016. Details of the inquiry are at the inquiry webpage.19

See under ‘Position of major interest groups’ for a discussion of some of the submissions to this inquiry.

Senate Standing Committee for the Scrutiny of Bills At the time of writing the Committee has not commented on the Bill.

Policy position of non-government parties/independents Brendan O’Connor, the Shadow Minister for Employment and Workplace Relations, has stated that the ALP has ‘reservations’ over the Bill and that it should not be dealt with until after it has been considered by the Senate Committee and the Victorian Supreme Court case has been resolved.20

The Greens have been reported as being opposed to this Bill, while Senators Hinch and Day have reportedly declared their support for the proposal.21 The three Nick Xenophon Team (NXT) Senators and Senator Leyonhjelm have ‘expressed in-principle support for the position of volunteers.’22

One Nation Senators have held discussions with union and volunteer representatives and had not announced their final position at the time of writing.23

Position of major interest groups Volunteer Fire Brigades Victoria (VFBV) issued a statement noting that the ‘VFBV was able to provide valuable input to the development of the legislation, and we are very pleased that it has shaped up in a way that we believe meets our concerns and deals with the practical issues affecting volunteers.’24

The UFU issued a bulletin stating that ‘the legislation as proposed will result in ongoing protracted litigation which is designed to make the (CFA Enterprise) agreement unworkable.’25 The UFU also describes the amendments as unjustified, and as ‘a direct attack on Professional/Career firefighters’ working conditions’ that ‘will also eventually have an effect on other industries.’26

At the time of writing over 300 submissions had been published on the webpage of the Senate Education and Employment Legislation Committee inquiry into the Bill, indicating a high degree of stakeholder and community

18. M Turnbull, ‘Second reading speech: Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016’, House of Representatives, Debates, 31 August 2016, p. 80. 19. Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 [provisions],The Senate, Canberra, 2016. 20. B O’Connor (Shadow Minister for Employment and Workplace relations), Interview with Greg Jennett, ABC News 24, ABCC; CFA; disclosure,

transcript, 31 August 2016. 21. F Hunter, ‘One Nation votes key to CFA law bid’, The Age, 24 August 2016, p. 5. 22. Ibid.

23. A Smethurst, ‘Hanson leans to CFA laws’, Herald Sun, 20 September 2016, p. 8. 24. VFBV, ‘The Federal Government’s volunteer protection amendments to the Fair Work Act’, VFBV website, 23 August 2016. 25. United Firefighters Union of Australia - Victoria Branch, ‘Important: members asked to voice their concerns to senators about proposed changes to the fair work act as a matter of urgency’, UFUVIC Bulletin, 151(22), 27 August 2016.

26. Ibid. The federal body of the UFU also stated its opposition to the Bill in a detailed submission, UFU, Submission, no. 54, to the Senate Education and Employment Legislation Committee Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, 12 September 2016.

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interest. Broadly speaking, rural fire services and volunteers are in favour of the Bill, while the Victorian Government, unions, some integrated CFA brigades27 and some other groups are opposed to it.28

In its submission the Victorian Government stated its opposition to the Bill, noting that the broad definitions in the proposed unlawful terms could result in practical ambiguities when applied to particular terms, and that the effect on existing agreements was in part retrospective.29 The Victorian Government also noted that the amendments appeared to be inappropriately targeting one agreement and one state, as the amendments:

… may not apply to fire-fighting bodies or emergency services in other States as, to the extent these bodies are not constitutional (“or trading”) corporations, these bodies are not covered by the Fair Work laws. This is because, unlike Victoria, other States have not referred their industrial relations powers over their public sectors to the Commonwealth. Consequently, Victoria is the only State in which public sector bodies that are not constitutional (“trading”) corporations are covered by the Fair Work laws.

30

Victoria further submitted that ‘this Bill amounts to an unnecessary and undue interference by the Commonwealth in a State matter.’31

The Police Federation of Australia was concerned that the provisions of the Bill that would permit a body to be prescribed by regulation as a recognised emergency management body32 could permit the coverage of the new unlawful terms to be extended to police agencies in future.33

The NSW Rural Fire Service Association (RFSA) submitted that they and the Council of Australian Volunteer Fire Associations (CAVFA) ‘both strongly support the (Bill)’. Noting, ‘(t)hese amendments are vital in ensuring that the unique volunteer culture in our emergency services, and that the credibility and respect that has developed over decades, is not detrimentally affected.’34

The Bendigo Fire Brigade, an integrated volunteer and career firefighter brigade of the CFA, submitted that they supported the currently proposed agreement, opposed the proposal for volunteers to be encouraged to intervene in ‘employment matters’, and:

… the VFBV has made commentary that they oppose the clause in the proposed UFU/CFA Agreement relating to dispatching seven firefighters to the fire ground. Volunteers at Bendigo Fire Brigade do not agree with the VFBV in relation to this issue and see the importance of this provision for both firefighters safety and better service delivery and protecting the community.

35

The Bendigo Fire Brigade submission goes on to state:

The proposed Legislation before the Committee is designed to deal with alleged concerns arising from the proposed CFA UFU Enterprise Agreement 2016. These concerns however are based on misleading and incorrect information regarding the proposed EBA. 36

27. See for example; Melton Fire Brigade, Submission, no. 50, to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, September 2016. 28. See for example; Police Federation of Australia, Submission, no. 6, to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, 12 September 2016; Ambulance Employees Australia

Victoria, Submission, no. 13, to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, 2016, and the Australian Nursing and Midwifery Federation (Victorian Branch), Submission, no. 14, to Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, 9 September 2016. 29. Victorian Government, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, op. cit., pp. 4-5. 30. Ibid., p. 4. 31. Ibid., p. 7. 32. Proposed subparagraph 195A(4)(ii). 33. Police Federation of Australia, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, op. cit., pp. 1-2. 34. NSW Rural Fire Service Association, Submission, no. 22, to the Senate Education and Employment Legislation Committee, Inquiry into the Fair

Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, 12 September 2016. 35. Bendigo Fire Brigade, Submission, no. 307, to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, September 2016, p. 2. 36. Ibid., p. 4.

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Financial implications There are no financial implications linked to the amendments proposed in this Bill.37

Statement of compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.38

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not commented on the Bill.39

Key issues and provisions Objectionable emergency management terms The proposed amendments in the Bill would add an ‘objectionable emergency management term’ to the list of unlawful terms in section 194, and provide definitions for this term and the bodies to which it would apply.

Currently the FWA creates two forms of what may be colloquially referred to as ‘objectionable’ terms:

• unlawful terms and

• non-permitted terms.

Subsection 186(4) of the FWA requires the FWC not to approve an EA that contains an unlawful term. Section 194 provides a list of terms that are unlawful, including terms that are ‘discriminatory’ or ‘objectionable’.40 Further, even if an EA were approved with an unlawful term, the term will not be enforceable and employees would not be able to take protected industrial action in support of such terms.41

Item 3 inserts proposed paragraph 194(baa) to add an ‘objectionable emergency management term’ to the list of unlawful terms.

Proposed subsection 195A(1) of the draft Bill introduces a definition of ‘objectionable emergency management term’ to make agreement terms unlawful if they had the effect of restricting a designated emergency management body’s ability to engage, deploy, support or equip volunteers, or manage operations or relationships in relation to the volunteers.

Proposed subsection 195A(4) provides a definition of ‘designated emergency management body’ as a body, established under a Commonwealth, state or territory law, that ‘is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory’,42 or a recognised emergency management body that is prescribed by regulations.43

Proposed subsection 195A(5) allows bodies to be excluded from the definition of ‘designated emergency management body’ by regulation.

Continued control by States over their volunteers While the proposed amendments would have the effect of preventing the approval or enforcement of an EA term that restricted a body’s ability to deal with its volunteers in the manner described, it is worth noting that nothing in this Bill would interfere with any state’s ability to deal with its volunteer workforces in any other way.

37. Explanatory Memorandum, Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, p. iii. 38. The Statement of Compatibility with Human Rights can be found at pages iv-viii of the Explanatory Memorandum to the Bill. 39. However, some Human Rights concerns were raised in relation to the earlier version of the proposed agreement itself. The Victorian Equal Opportunity and Human Rights Commission reportedly ruled that the originally proposed EA was discriminatory ‘towards women, parents,

carers and people with disabilities’ hence and may breach the Equal Opportunity Act 1995 (Vic), resulting in it not being human-rights compliant. See: Australian Broadcasting Commission (ABC), ‘CFA rejects proposed EBA as Premier Andrews returns for crisis meetings’, ABC News, (online edition), 6 June 2016; J Gordon, ‘Human rights watchdog rules against firefighters' union industrial deal’, The Age, (online edition), 5 June 2016. 40. Fair Work Act 2009, paragraph 194(a), section 195. 41. Fair Work Act 2009, section 253 and subsection 409(3). 42. Proposed subparagraph 195A(4)(i). 43. Proposed subparagraph 195A(4)(ii).

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Other means by which states may exercise control over volunteers could include direct legislative control, issuing directions or through directed funding.

Constitutional issues In his second reading speech, the Prime Minister stated that the Government had legal advice confirming the constitutional validity of the amendments.44

At present, the Commonwealth is accepted to have the power to legislate private sector industrial relations (IR) laws that apply to constitutional corporations within a state as well as to all disputes extending beyond a single state, or where powers have been referred by a state.

The extent of Commonwealth power to legislate employment law for the public sector within states is less settled, both due to the implied constitutional limitation on the Commonwealth’s power to interfere with a state’s ability to function as a government, and the absence of a clear head of power. Commonwealth power may depend upon whether a given agency is determined by the court to be a constitutional corporation or it may rely on the referral of powers from the state in question.

In UFU v CFA 2015 the Full Federal Court reaffirmed the earlier finding of the Court that the CFA is a constitutional corporation, providing a head of power for the application of the FWA to that body. 45

Victorian legislation refers certain public sector IR responsibilities and powers to the Commonwealth.46 However, following the decision on the corporate nature of the CFA it has not been necessary to consider the referral of powers and any relevant exceptions to it in the current situation.

As noted above, the application of Commonwealth IR laws to state government issues may be limited by the implied constitutional limitation on Commonwealth interference with state governments. This limitation is sometimes referred to as the Melbourne Corporation principle following the case in which it was first laid out.47

The application of this principle has been explored further in subsequent cases:

• in AEU, the High Court reaffirmed that there is an implied constitutional limitation on the Commonwealth’s power to interfere with a state’s ability to function as a government, and that this extends to awards prescribing the number, identity and terms of appointment of state government employees, but does not limit the making of an award of minimum wages or working conditions48

• in UFU v CFA 2015 the Full Federal Court introduced an exception to the implied constitutional limitation from the AEU case such that it does not limit terms in voluntary agreements, as they are not considered to involve any Commonwealth imposition on the states.49

Further, in UFU v CFA 201550 the Federal Court summarised the history of judicial consideration of the Melbourne Corporation principle, and cited a recent High Court framing of the principle as follows at [206]:

… it is relevant to note the following similar formulation of the implied limitation by Hayne, Bell and Keane JJ in 2013 in Fortescue at [130]:

Hence, as the decisions in Austin and Clarke each demonstrate, the Melbourne Corporation principle requires consideration of whether impugned legislation is directed at States, imposing some special disability or burden on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments.

Together, these authorities suggest that a determination of whether the proposed amendments would breach the implied limitation, would likely involve consideration of whether the practical effects of the amendments in

44. M Turnbull, ‘Second reading speech: Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 ’, House of Representatives, Debates, 31 August 2016, pp. 24-26. 45. UFU v CFA 2015, op. cit. 46. Fair Work (Commonwealth Powers) Act 2009 (Vic); Commonwealth Powers (Industrial Relations) Act 1996 (Vic). 47. Melbourne Corporation v Commonwealth (1947) 74 CLR 31, [1947] HCA 26. 48. AEU, op. cit. 49. UFU v CFA 2015, op. cit. 50. Ibid., [179]-[214].

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a specific factual situation created a significant impairment on a government, and whether they related to staffing levels or simply working conditions, as defined in AEU.

Academics have questioned the constitutional validity of the Bill’s proposed approach.51 Regarding the relevance of the Melbourne Corporation principle in particular, Professor Andrew Stewart commented:

The potential application of these constitutional limitations to the proposals in the Bill should be evident. It could be argued that by preventing a State government agency such as the CFA from making its own decisions as to how to deploy a mix of professional firefighters and volunteers, or who it consults with before making those decisions, or (more broadly) what role to accord to volunteer firefighters, the Commonwealth would be unduly interfering with the agency’s power to determine the composition of its workforce.

I do not go so far as to suggest that the Bill is necessarily unconstitutional. The principles concerned are necessarily imprecise and flexible in their application, being based on implications in the Constitution that, over the years, the High Court has chosen to formulate and apply in different ways. Australian Education Union was decided over 20 years ago by a differently constituted court, and did not deal with the role of volunteers. It is entirely possible that a challenge to the constitutionality of the Bill’s provisions would fail. But it is just as possible that it would succeed.

52 (emphasis added).

The issues raised in the submission by the Victorian Government to the Senate Committee, as discussed in the Stakeholder section above, suggest that they have also considered the Melbourne Corporation principle.53

Right to make submissions Proposed sections 254A and 281AA would provide volunteer representative organisations with the ability to make a submission in relation to a matter before the FWC where the matter affects, or could affect, the volunteers of a designated emergency management body. The proposed sections provide this ability in relation to enterprise agreements and workplace determinations respectively.

Currently standing to make submissions to the FWC for consideration related to Part 2-4 (which deals with EAs) and Part 2-5 (which deals with determinations) of the FWA is not automatic. Further, generally where the FWC grants permission to parties to provide submissions, it is generally, as a matter of practice, restricted to employers who would be covered by the relevant EA or determination or properly selected bargaining representatives (for example, a relevant trade union engaged in bargaining for the EA). In short, despite section 590 of the FWA, which enables the FWC to inform itself about any matters by inviting oral or written submissions from any parties or persons it selects, currently no parties have an automatic right to make submissions to the FWC in regards to any matters dealt with by Parts 2-4 and 2-5 of the FWA. Regarding these provisions, Professor Andrew Stewart commented:

What is extraordinary about this proposal is that it would confer on the relevant bodies a right that is not guaranteed to any other party, with the sole exception of the Minister for Employment (and even that right is limited to matters involving public sector employment). Under the FW Act as it stands it is entirely a matter for the FWC to determine, in accordance with its Rules, whether it hears or accepts submissions from a particular party in relation to the approval of an enterprise agreement. In practice, it will allow the likes of unions, employer associations and individual employees to intervene, if they have a genuine interest in the proceedings. But nobody (with the partial exception of the Minister) is automatically entitled to be heard.

Hence if included in the FW Act, these proposed provisions would give volunteer bodies superior rights to employees, unions, governments - and, it may be noted, volunteers themselves. 54 (Footnotes omitted, emphasis

added).

As a result, the Bill would give an automatic right to volunteer representative organisations to make submissions to the FWC regarding a wide range of matters related to EAs and determinations including:

51. R Urban, ‘Experts query Turnbull's CFA 'solution' priority’, The Australian, 12 July 2016, p. 7. 52. A Stewart, Submission, no. 17, to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, September 2016, p.4. 53. Victorian Government, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, op. cit. 54. Stewart, Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, op. cit., p. 5.

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• when applications are made to approve, vary or terminate an EA55 and

• applications for bargaining orders and serious breach declarations, majority support determination and scope orders and for the FWC for it to deal with a dispute,56

in circumstances where no other entities currently have such automatic standing.

Is the Bill retrospective? The Bill is not legally retrospective, as noted in the Explanatory Memorandum,57 but it does alter the future operation of previously agreed agreements.

Application of the Bill’s provisions to existing agreements and determinations Item 9 of the Bill inserts application provisions into Schedule 1 of the FWA in the form of proposed Part 3 (and in particular proposed clause 14) to provide that the amendments will apply after commencement in relation to enterprise agreements approved, and workplace determinations made, before or after commencement, as well as to matters that are before the FWC after commencement whether they began before or after commencement.

Nothing in proposed clause 14 would alter the legal status of the signing of a pre-commencement agreement or of anything that had previously occurred under a newly-objectionable term of such an agreement. In particular:

• nothing that had previously occurred under an agreement containing a newly-objectionable term of such an agreement is rendered invalid or made unlawful and

• the approval of agreements with the newly-objectionable terms (proposed section 195A and existing subsection 186(4) of the FWA) and enforcement of such terms or conduct purported to occur under such a term, is only prohibited (and unenforceable) after the commencement date.

In addition, proposed subclause 14(3) specifically ensures that agreements approved before commencement will continue to have legal force despite including newly-objectionable terms. In short, proposed subclause 14(3) ensures:

• enterprise agreements with objectionable terms are not rendered invalid and

• other non-objectionable terms in the enterprise agreement continue to operate to the extent that they are in accord with the amended Act.

As such, the provision is not retrospective but, in so far as the Bill seeks to (in effect) amend previous agreements by providing that any newly-objectionable terms are no longer enforceable, it could alter how those agreements will operate in the future.

Concluding comments The broad definition provided by this Bill for objectionable emergency management terms, relating as it does to the interaction of such terms with a body’s dealings with its volunteers, means that it will be difficult to predict whether potential terms would be considered to be objectionable or not. It is likely that in many cases such a determination would require the consideration of the practical effects of the terms, rather than textual analysis of the terms themselves.

The ability for further emergency management bodies to be prescribed by regulation also adds uncertainty to the scope of application of the amendments.

The entitlement for volunteer bodies to make submissions to the FWC is unusual in that it would be a right that is not provided to any other participants in agreements or disputes. Further, that right extends to all stages of the processes related to making an EA or determination, including determining the scope of a proposed agreement, obtaining good faith bargaining orders, approving an EA, varying an EA or terminating it in circumstances where (for example) even the parties to a negotiation about a proposed EA would not automatically have standing to make submission on the matters being determined by the FWC.

55. Fair Work Act 2009, sections 183, 210, 217-218, 222 and 225. 56. Ibid, sections 229, 234, 236, 238 and 240. 57. Explanatory Memorandum, Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, op. cit., p. 6.

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The operation of the Bill is not retrospective, but it will affect the operation of applicable existing agreements or ongoing matters before the FWC.

Finally, as noted previously whilst the amendments will fetter the ability of a state to exercise its managerial prerogative over emergency service volunteers via an EA or determination made under the FWA, it will not prevent any state exercising its managerial prerogative via other mechanisms. As such, states will continue to be able to deal with the issues encompassed by the CFA dispute via other mechanisms.

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