A correspondent has written and drawn my attention to a decision of the Fair Work Commission (a Commonwealth body) intervening in an industrial issue involving the Metropolitan Fire Brigade in Melbourne – see the summary by Baker and McKenzie, Lawyers,  ‘FWC grants interim orders to halt disciplinary process’ (19 May 2015).

My correspondent asks:

I would have thought that the FWC under the Commonwealth Fair Work … Act does NOT have constitutional coverage of employees of the Fire service?

So how is that decision of the FWC possible?

Does it apply to all states?

What emergency service workers OR volunteers can’t apply to the FWC?

One the one hand the answer is simple, but on another it’s too complex and outside my field.

The short answer is that the Australian Constitution, s 51(xxxvii), allows states to refer matters that would otherwise be matters for state law, to the Commonwealth.  Victoria, by virtue of the Fair Work (Commonwealth Powers) Act 2009 (Vic), has referred its industrial relations powers to the Commonwealth to allow for the development of a national industrial relations scheme.

In my post ‘Industrial Relations and asking the CFA to stick to its bargain’ (January 26, 2015) I refer there to the ‘Melbourne Principle’, that is the Commonwealth cannot make laws that determine a state’s ‘…  right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds’ but that won’t limit the Commonwealth where the state has referred the relevant powers.  In this case the Commonwealth has given the Commonwealth the power to makes laws with respect to the ‘terms and conditions of appointment’ of State employees, but not ‘matters pertaining to the number, identity or appointment … of employees in the public sector who are not law enforcement officers’ (Fair Work (Commonwealth Powers) Act 2009 (Vic) s 5(1)).

I would understand from the report by Baker and McKenzie that this case, United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board [2015] FWC 3263, was about the ‘terms and conditions’ of appointment and so is part of the referral to the Commonwealth.   I do note that in the judgment, the jurisdiction of the Commission is not discussed.   We can infer that neither party thought that was an issue and everyone accepted the FWC had the necessary jurisdiction.

With respect to ‘What emergency service workers OR volunteers can’t apply to the FWC?’ I can say with a high degree of confidence that volunteers couldn’t go to the Fair Work Commission as they are not employees.   The inclusion of volunteers into the definition of employee in modern work health and safety law does not change the fact that they are not employees – see ‘What does it mean to be a ‘worker’’ (February 19, 2015).

That’s the easy part.  What’s hard is that employment law is a specialised area and to look beyond the judgement to fully understand the effect of the Fair Work (Commonwealth Powers) Act 2009 (Vic) and to try to answer the question ‘Does it apply to all states?’ (Which I think it does; I think all states have made similar referrals) and ‘What emergency service workers … can’t apply to the FWC?’ would take me so far out of my area of comfort that I couldn’t do those questions justice, so I decline to answer them.