1 Fair Work Act 2009 s.234 - Application for an intractable bargaining declaration Ventia Australia Pty Ltd v United Firefighters' Union of Australia (B2023/988) DEPUTY PRESIDENT HAMPTON ADELAIDE, 20 DECEMBER 2023 Application for an intractable bargaining declaration – whether intractable – whether no reasonable prospects of making an agreement without the declaration – contested application – balance of competing considerations – not satisfied that presently there are no reasonable prospect of an agreement being reached in the absence of making the proposed declaration given the history of negotiations, the bargaining positions and more recent developments – application dismissed – recommendation made for further Commission assistance. 1. Introduction [1] Ventia Australia Pty Ltd (Ventia or Applicant) has applied for an intractable bargaining declaration (Declaration) pursuant to s.234 of the Fair Work Act 2009 (Cth) (FW Act) in respect of the bargaining with the United Firefighters’ Union of Australia (UFU or Respondent) for the proposed Ventia and UFU Fire and Rescue QLD Enterprise Agreement 2023 (Proposed Agreement). [2] As the name suggests, the Proposed Agreement would apply to Ventia’s fire and rescue services in Queensland. These services presently operate at the Oakey defence base under a contract (contract) with the Department of Defence (Department) that will expire in June 2024. The contract also covers various other base support services that are beyond the scope of this matter. Tender processes for a subsequent contract for the provision of these services is well advanced, and relatively recently, Ventia was identified as the sole tenderer that has progressed through to the final stages of that process. This is a significant development but does not mean that Ventia will necessarily be awarded the contract. [3] The Employees and the parties to this matter are covered by the Broadspectrum and United Firefighters' Union of Australia (QLD Branch) Enterprise Agreement 2018 (2018 Enterprise Agreement) which passed its nominal expiry date on 28 September 2022. [4] Bargaining for the Proposed Agreement has been underway for many months and the terms of any new agreement have not been agreed between the parties. There are competing proposals on a number of issues, most notably, wages (outcomes and timing), redundancy and [2023] FWC 3041 DECISION [2023] FWC 3041 2 long service leave benefits, and the life of the Proposed Agreement. Some of the context for this is a dispute about the extent that the UFU’s claim for remuneration and conditions to be more consistent with those recently negotiated with Ventia’s Victorian and New South Wales operations should be applied here – the catchup claims. Ventia has contended in bargaining and in these proceedings that these claims are not sustainable particularly in the context of the contract tendering process. A proposed agreement package advanced by Ventia was earlier rejected by a significant proportion of employees via a ballot. [5] Ventia contends that the bargaining is now intractable and that it is appropriate for the Commission to make a Declaration and provide for further negotiations ahead of a Full Bench determination, if ultimately required. [6] The UFU contends that the bargaining is not intractable and that in any event, it would not be appropriate for the Commission to make the Declaration given what it says is the inappropriate bargaining conduct of Ventia. This second aspect is associated with what the UFU contends is Ventia, in effect, “threatening” employees with this application in the context of the employee ballot for the its Proposed Agreement. [7] A hearing was conducted on Tuesday 21 November 2023 to determine the application. Having considered all of the relevant evidence and submissions, I have now determined that the application should not be granted. In brief terms. I am not persuaded that presently there is no reasonable prospect of an agreement being reached if the proposed Declaration is not made by the Commission. [8] My reasons for that conclusion and the disposition of the matter are set out below. 2. The Statutory Framework [9] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) repealed the former serious breach declaration provisions of the FW Act and replaced them with a new scheme of provisions relating to intractable bargaining declarations,1 with effect from 6 June 2023. This scheme is contained in Subdivision B of Division 8 of Part 2-4 of the FW Act. [10] On 4 October 2023, a Full Bench of this Commission dealt with the first application of this kind under the new scheme in United Firefighters’ Union of Australia v Fire Rescue Victoria (UFU v FRV).2 In UFU v FRV, the Respondent agreed that the declaration sought should be made.3 In the present case, the Respondent opposes Ventia’s application. [11] Section 234 of the FW Act deals with the circumstances in which an application for an intractable bargaining declaration may be made: 234 Applications for intractable bargaining declarations (1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement. [2023] FWC 3041 3 Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement. (2) An application for an intractable bargaining declaration must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement. [12] It is common ground that Ventia is a bargaining representative for the Proposed Agreement and is therefore entitled to make an application for a Declaration under s.235 of the FW Act. [13] Section 235 provides for the Commission’s power to make an intractable bargaining declaration, the content of such a determination if made and its temporal operation: 235 When the FWC may make an intractable bargaining declaration Intractable bargaining declaration (1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if: (a) an application for the declaration has been made; and (b) the FWC is satisfied of the matters set out in subsection (2); and (c) it is after the end of the minimum bargaining period (see subsection (5)). Matters of which the FWC must be satisfied before making an intractable bargaining declaration (2) The FWC must be satisfied that: (a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC’s processes to deal with the dispute; and (b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and (c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement. What declaration must specify (3) The declaration must specify: [2023] FWC 3041 4 (a) the date it is made; and (b) the proposed enterprise agreement to which it relates; and (c) any other matter prescribed by the procedural rules. Operation of declaration (4) The declaration: (a) comes into operation on the day it is made; and (b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination. End of the minimum bargaining period (5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is: (a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following: (i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements; (ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or (b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6). (6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is: (a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or (b) otherwise—the notification time for the proposed agreement. [14] Section 235(1) confers upon the Commission a discretionary power to make an intractable bargaining declaration if each of the preconditions described in paragraphs (a), (b) and (c) is met. The precondition in s.235(1)(a) for an application for the declaration to have been made connotes a valid application that conforms with the requirements of s.234.4 The [2023] FWC 3041 5 requirement in s.235(1)(c) is that the ‘minimum bargaining period’, as defined in ss.235(5) and (6), has ended. This is essentially an issue of fact. In the context of single enterprise bargaining where an existing enterprise agreement(s) applies to any of the employees to be covered by the proposed agreement the subject of bargaining, the minimum bargaining period is the later of: • the day that is 9 months after the nominal expiry date(s) of the existing agreement(s); or • the day that is 9 months after the day that bargaining starts, being the ‘notification time’ for the proposed agreement. [15] The notification time for a proposed agreement is as set out in s.173(2). Because, under s.173(3), the issue of the NERR in respect of a single-enterprise agreement (other than a greenfields agreement) must occur not later than 14 days after the notification time for such an agreement, the fact that the NERR has been issued will in most conceivable circumstances be a reliable indicator that the notification time has already occurred. [16] It is common ground in this matter that a valid application for the Declaration has been made and that it was made after the end of the relevant minimum bargaining period.5 [17] The precondition in s.235(1)(b) requires the Commission to be ‘satisfied’ as to each of the matters in paragraphs (a)-(c) of s.235(2). The process by which a Tribunal does, or does not, reach a state of satisfaction about a prescribed matter involves the making of an evaluative judgment of a discretionary nature. The exercise of discretion involved will be wider where the prescribed matter is one of ‘opinion or policy or taste’ (as is the case with paragraphs (b) and (c) of s.235(2)) rather than one of ‘objective fact’ (paragraph (a)).6 [18] As indicated, satisfaction as to s.235(2)(a) simply requires a finding of fact that the Commission has dealt with the dispute about the agreement under s.240 and the applicant for the intractable bargaining declaration has participated in the Commission’s processes to deal with the dispute. Section 240 is a provision by which a bargaining representative for a proposed enterprise agreement may apply to the Commission for it to deal with a dispute about the agreement which the bargaining representatives are unable to resolve. Under ss.240(4) and 595, the Commission may deal with such a dispute by mediation, conciliation, making a recommendation or expressing an opinion, and by consent arbitration, and these may be understood as the Commission’s ‘processes to deal with the dispute’ referred to in s.235(2)(a). [19] There was no dispute between the parties that the Commission has deal with the dispute about the Proposed Agreement under s.240 of the FW Act and Ventia has participated in those processes. [20] Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is ‘no reasonable prospect of agreement being reached’ if an intractable bargaining declaration is not made. ‘No reasonable prospect’ is obviously not the same as ‘no prospect’ in that it does not require a ‘certain and concluded determination’7 that an agreement cannot be reached if a declaration is not made but rather, on the ordinary meaning of the words used, requires an evaluative judgment that it is rationally improbable that an agreement will be reached.8 Paragraph [846] of the Revised Explanatory Memorandum (REM) for the Fair Work [2023] FWC 3041 6 Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (SJBP Bill), which explains this provision, is consistent with this approach: … This does not require the FWC to be satisfied that an agreement could never be reached but rather that the chance of the parties reaching agreement themselves is so unlikely that it could not be considered a reasonable chance. It is unlikely that the FWC would reach such a state of satisfaction unless the parties had been bargaining for an extended period and had exhausted all reasonable efforts to reach agreement, but the provision leaves it up to the FWC to determine, in all the circumstances, whether it is satisfied that there is no reasonable prospect of the parties reaching agreement if the FWC does not make the declaration. … [21] Satisfaction in respect of s.235(2)(c) of the FW Act requires the Commission to make a further evaluative judgment, namely that it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement. The ‘reasonable in all the circumstances’ criterion requires an assessment of what is ‘agreeable to reason or sound judgment’ in the context of the relevant matters and conditions accompanying the case.9 The REM for the SJBP Bill gives examples of potentially relevant circumstances as follows:10 This would provide scope for the FWC to, for example, consider the dispute in the context of the whole of the relationship of the parties, the history of the bargaining, the conduct of the parties, the prevailing economic conditions, and the bargaining environment. [22] The requirement to take into account the views of the bargaining representatives means that their views must be treated as a matter of significance, but not necessarily a determinative consideration, in the assessment of whether it is reasonable in all the circumstances to make the determination sought. [23] Where the Commission is satisfied as to each of the matters in paragraphs (a)-(c) of s.235(1), it retains a residual discretion (‘may make’) as to whether an intractable bargaining declaration is actually made. [24] As stated earlier, of all these various requirements, it is the matters in s.235(2) (b) and (c) that are disputed in this matter. [25] Where an intractable bargaining declaration is made pursuant to s.235, s.235A confers upon the Commission the discretionary power to specify a ‘post-declaration negotiating period’: 235A Post‑declaration negotiating period (1) The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post‑declaration negotiating period) that: (a) starts on the day the declaration is made; and [2023] FWC 3041 7 (b) ends on: (i) the day specified by the FWC in the declaration; or (ii) any later day determined under subsection (2). Note: The FWC cannot make an intractable bargaining workplace determination during any post‑declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation. (2) The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii). [26] The discretionary nature of the above provision is in contrast to s.266(3), which requires a ‘post-industrial action negotiating period’ when a termination of industrial action instrument has been made pursuant to ss.423, 424 or 431 of the FW Act. The REM explains that s.235A ‘would allow the FWC to, when making an intractable bargaining declaration, specify a period after the making of the declaration for the parties to continue to negotiate with a view to reaching an enterprise agreement before the FWC proceeds to make a workplace determination’.11 [27] For further context, I observe that if the Commission makes an intractable bargaining declaration, s.269 of the FW Act requires a Full Bench of the Commission to make an ‘intractable bargaining workplace determination’ as quickly as possible after the end of the post-declaration negotiating period, if one is specified, or otherwise after making the declaration. Section 270 requires such a declaration to include, in addition to the ‘core terms’ set out in s.272 and the ‘mandatory terms’ set out in s.273, the ‘agreed terms’ (s.274(3)) and the terms described in s.270(3). Section 274(3) defines the agreed terms as follows: 274 Agreed terms for workplace determinations … … Agreed term for an intractable bargaining workplace determination (3) An agreed term for an intractable bargaining workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at whichever of the following times applies, agreed should be included in the agreement: (a) if there is a post-declaration negotiating period for the intractable bargaining declaration to which the determination relates--at the end of the post- declaration negotiating period; (b) otherwise-- at the time the intractable bargaining declaration was made. [28] Section 270(3) provides: [2023] FWC 3041 8 Terms dealing with the matters at issue (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue: (a) if there is a post-declaration negotiating period under section 235A for the declaration concerned--after the end of that period; or (b) otherwise--after making the declaration. [29] It is apparent that the above provisions operate in conjunction with each other — that is, the Commission must make a determination which includes terms which the parties agree should be included in the determination, and terms which deal with the matters remaining in issue. Whether a post-declaration negotiating period is specified in the determination pursuant to s.235A affects this since, if such a period is specified, the agreed terms and the matters in issue are identified as at the end of/after the period, whereas if no such period is specified, they are identified as at/after the time the declaration is made. [30] It was common ground in this matter that should the Declaration be made, a post declaration negotiating period would be appropriate. [31] I add that a further consequence of making the Declaration is that protected industrial action is no longer available to the parties concerned.12 [32] Given the positions of the parties, the major issues in dispute in this matter ultimately concern the following: • Whether there is no reasonable prospect of agreement being reached if the Commission does not make the declaration13 – No Reasonable Prospects of Agreement Being Reached; and • Whether it is reasonable in all the circumstances to make the declaration, taking into account the views of all bargaining representatives for the Proposed Agreement14 – Reasonable in all the Circumstances? 3. The Agreed Facts [33] The parties to the application provided the following statement of agreed facts (Agreed Facts). “Agreed facts: 1. The employees covered by the proposed agreement (the Employees) are employed by Ventia Australia Pty Ltd. 2. The Employees are covered by the Broadspectrum and United Firefighters' Union of Australia (QLD Branch) Enterprise Agreement 2018 (2018 Enterprise Agreement) which nominally expired on 28 September 2022. [2023] FWC 3041 9 3. Ventia issued a Notice of Employee Representational Rights to the employees on 5 August 2022. Ventia commenced bargaining with the Employees and the United Firefighters’ Union of Australia (UFU) on or shortly before this date. 4. The first bargaining meeting between the parties was held on 1 September 2022. 5. The following meetings, conferences and teleconferences have occurred during the enterprise agreement negotiations: No. Date Meetings, Conferences and Teleconferences 1. 1 September 2022 Bargaining meeting between Ventia and the UFU 2. 19 September 2022 Bargaining meeting between Ventia and the UFU 3. 14 October 2022 Bargaining meeting between Ventia and the UFU 4. 26 October 2022 Bargaining meeting between Ventia and the UFU 5. 9 November 2022 Bargaining meeting between Ventia and the UFU 6. 23 November 2022 Bargaining meeting between Ventia and the UFU 7. 18 January 2023 Bargaining meeting between Ventia and the UFU 8. 16 February 2023 Bargaining meeting between Ventia and the UFU 9. 28 February 2023 Bargaining meeting between Ventia and the UFU 10. 10 March 2023 Bargaining meeting between Ventia and the UFU 11. 28 March 2023 Bargaining meeting between Ventia and the UFU 12. 6 April 2023 Initial teleconference with Commissioner Platt re. section 240 process. Ventia and the UFU attended [2023] FWC 3041 10 13. 18 April 2023 Day 1 of section 240 Conference chaired by Commissioner Platt. Ventia and the UFU attended 14. 19 April 2023 Day 2 of section 240 Conference chaired by Commissioner Platt. Ventia and the UFU attended 15. 11 May 2023 Meeting between Ventia and the UFU to discuss the bargaining positions of the parties and the status of the negotiations. 16. 13 June 2023 Teleconference with Commissioner Platt re. section 240 process. Ventia and the UFU attended 17. 22 June 2023 Meeting between Ventia and the UFU to discuss the drafting of the enterprise agreement for the upcoming vote. 6. On 21 February 2023, Deputy President Clancy issued a decision ([2023] FWC 425) granting a protected action ballot order (PR750952). 7. On 3 April 2023, Ventia made an application (B2023/304) under s 240 of the Fair Work Act 2009 (FW Act) for the Commission to deal with an enterprise bargaining dispute between the parties. 8. Commissioner Platt held conciliation conferences with the parties on 18 and 19 April 2023. In addition, the parties reported back to the Commissioner on 5 May 2023 and 13 June 2023. 9. Ventia provided a copy of a proposed Agreement to the Employees on 14 August 2023 and requested the employees to approve the Agreement by voting for it. 10. An electronic vote was held between 24 and 25 August 2023. A substantial majority of the 33 employees voted to reject the proposed Agreement. 11. On 15 September 2023, Ventia filed an application for an intractable bargaining application. 12. The clauses in the proposed agreement that have been agreed upon are: • Clause 2 – Application • Clause 4 – Parties Covered • Clause 6 – No Extra Claims • Clause 7 – National Employment Standards (NES) • Clause 8 – Access to the Enterprise Agreement and the NES • Clause 9 – Consultation • Clause 10 – Dispute Resolution Procedure [2023] FWC 3041 11 • Clause 11 – Workplace Representation • Clause 12 – Contract of Employment • Clause 13 – Company Vehicles • Clause 14 – Hours of Work • Clause 15 – Breaks • Clause 16 – Overtime (except for clause 16.3.2) • Clause 17.2 – Higher Duties • Clause 17.3 – Licence Fee Reimbursements • Clause 17.4 – Spoilt Meal Allowance • Clause 17.6 – Overtime Meal Allowance • Clause 17.7 – Redeployment Payments • Clause 18 – Payment of Wages • Clause 19 – Superannuation • Clause 20 – Annual Leave • Clause 23 – Compassionate Leave • Clause 24 – Pressing Necessity Leave • Clause 25 – Community Service Leave • Clause 26 – Parental Leave • Clause 27 – Public Holidays • Clause 28 – Flexibility Arrangements • Clause 29 – Termination of Employment • Clause 32 – Amenities • Clause 33 – Training and Related Matters • Clause 34 – Modified Alternative Duties • Schedule 1 – Classification Structure • Schedule 3 – Uniform and Equipment 13. The clauses in the proposed agreement that have not been agreed upon are: • Clause 1 – Title and Clause 3 – Definitions (definition of ‘Agreement’) (Unresolved issue: Whether the title refers to 2022 or 2023) • Clause 5 – Term of Operation (Unresolved issue: Nominal expiry date) • Clause 16.3.2 – Recall to duty (Unresolved issue: cents per kilometre rate) • Clause 17.1 and Schedule 2 – Wage Rates [2023] FWC 3041 12 (Unresolved issue: Quantum of wage increases and operative dates for increases) • Clause 17.5 – Watchroom Allowance (Unresolved issue: Operative dates for increases) • Clause 21 – Long Service Leave (Unresolved issue: UFU claim for increased entitlement) • Clause 22 – Personal/carer’s leave (Unresolved issue: UFU claim for increased entitlement) • Clause 30 – Redundancy (Unresolved issues: Quantum of redundancy pay and exclusions from redundancy pay entitlements) • Clause 31 – Uniforms and Equipment (Unresolved issue: UFU claim for increased safety boot entitlement) • Schedule 4 – Deployment payments (Unresolved issue: Operative dates for increases) • UFU claim for a new Aviation Allowance • UFU claim for a new First Aid Allowance.” [34] I observe that there is some dispute about whether some of the discussions surrounding the s.240 proceedings should be treated as being bargaining meetings – meaning the difference between 17 or 14 meetings respectively. Little turns on this aspect and I have treated the events as they are described in the statement of agreed facts. 4. The Cases Advanced by the Parties 4.1 Ventia’s Submissions No Reasonable Prospects of Agreement Being Reached [35] Ventia submitted that there is no reasonable prospect of agreement being reached. [36] Ventia currently has a contract with the Department, which expires in June 2024.15 Ventia has an obligation under the Contract to provide a range of estate, living and base support capability, including firefighting and rescue services.16 [37] The Department is currently undertaking a tendering process for a new Defence Base Services Contract (the New Contract).17 Ventia have submitted a bid for the New Contract.18 Value for money will be one of the selection criteria. [38] Despite Ventia making various substantial concessions during the formal bargaining process, an agreement has not been reached.19 [39] Ventia has offered a wage increase and an agreement term.20 [40] They have been unable to accept the claims made by the UFU as they are not ‘sustainable or acceptable to Ventia’.21 [2023] FWC 3041 13 [41] The UFU’s claims include higher wage increases, a lengthy period of backdating, increase in maximum amount of redundancy pay and, in effect, a 50% increase to long service leave and personal carer’s leave entitlements.22 Noting that these are based upon agreements that were made and apply in other States, Ventia contends that it has “100 enterprise agreements across the country and the notion that it should agree to apply the most generous terms to the employees in every state is, of course, completely inappropriate and fanciful”.23 Further, it contends that it is rationally improbable for the UFU to continue believing that Ventia is going to accept the wages and related claims, particularly in the context of an agreement that would end in June next year as sought by the UFU. [42] Despite 17 bargaining meetings, conferences and telephone conferences being conducted during the formal bargaining period, no agreement has been reached. Ventia submit that both parties are ‘still a long way apart on the core issues’.24 [43] In the context of protected industrial action (PIA), Ventia contends, in effect, that it would be “completely inappropriate”25 to take into account the fact that more damaging industrial action could be taken but rather it should weigh strongly in favour of the declaration being made, the fact that there is this threat, which the union is being quite open about, of ramping up the industrial action. [44] Mr Costi has attended all bargaining meetings and s.240 conciliation conferences that have occurred during the formal bargaining process.26 Ventia is of the view that there is no reasonable prospect of agreement being reached because: a) ‘The difference between the parties on the non-agreed matters are too great’;27 b) ‘After more than 12 months of negotiations … there is no sign that an agreement will … be reached’; and28 c) ‘The parties are unlikely to move from their current positions’.29 [45] Ventia referred the Commission to the Full Bench decision in UFU v FRV, where the Bench held that ‘no reasonable prospect’ ‘requires an evaluative judgment that is rationally improbable that an agreement will be reached’.30 In doing so, Ventia submitted that the evidence before the Commission, including the Witness Statements of Mr Costi and Mr Nicholas, ‘clearly demonstrates’ that it is rationally improbable that an agreement will be reached between Ventia and the UFU.31 Reasonable in all the Circumstances? [46] Ventia submitted that the factual circumstances in the present proceedings are ‘similar’ to those in UFU v FRV.32 [47] In concluding that it was reasonable in all the circumstances to make an intractable bargaining declaration, the Full Bench in UFU v FRV noted that: [2023] FWC 3041 14 “The firefighting services provided by FRV are critical to public safety. Although the protected industrial action which has occurred to date has not affected the provision of firefighting services, we are concerned that the refusal of an intractable bargaining declaration might mean that the only resort for the UFU to advance its position is to escalate protected industrial action.” 33 [48] Similarly, Ventia’s evidence contends that firefighters employed by Ventia are required to be on duty to ensure the safety of defence aviation activities.34 An immediate firefighting and/or rescue response is required by Ventia’s firefighters. [49] If Ventia firefighters are not on duty, then the Australian Defence Force would be required to cancel aviation operations and training activities.35 Alternatively, there would be a ‘direct adverse impact on the safety of Defence personnel’.36 [50] Ventia argued that the following factors also weighed in favour of it being reasonable in all the circumstances to make an intractable bargaining declaration: the relationship between the parties, the history of the bargaining, the conduct of the parties during bargaining, the prevailing economic circumstances and the bargaining environment.37 [51] Ventia further submitted that the status of Ventia’s contract with the Department is a factor that weighs in favour of granting the Declaration. If the Declaration is not granted, and industrial action were to continue, it would impact on Ventia’s ability to fulfil its contractual obligations under the New Contract.38 4.2 UFU Submissions No Reasonable Prospects of Agreement Being Reached [52] The UFU submitted that the Commission cannot be satisfied that there is no reasonable prospect of agreement being reached if a Declaration is not made.39 [53] It submitted that the history of bargaining between the parties weighs in favour of the Commission not being satisfied that there is no reasonable prospect of agreement being reached. The parties have reached an agreement on five previous occasions.40 Accordingly, the UFU argued that the history of bargaining increases the probability that the parties can reach agreement in relation to the Proposed Agreement.41 [54] The Union noted that the claims which the parties are apart on have been recently agreed to in Ventia and UFU Vic and NSW Fire and Rescue Enterprise Agreement 2022 (the Vic and NSW 2022 Agreement). Accordingly, the UFU argued that Ventia cannot find the claims to be objectionable. [55] The UFU further submitted that the parties have not been bargaining for an extended period. It further argued that the parties have not ‘exhausted all reasonable efforts to reach an agreement’.42 It also contended that the gap in bargaining positions could be bridged, particularly with the Commission's further assistance. [2023] FWC 3041 15 [56] The UFU submitted that the bargaining is not ‘protracted’.43 Instead, it argued that the parties have only been actively bargaining for a ‘relatively short’ period.44 The Union submitted that although the parties have met on 17 occasions45, there have only been 14 formal bargaining meetings.46 Accordingly, it was the Union’s submission that the parties have only actively bargained in a seven (7) month period between 1 September 2022 and 19 April 2023.47 [57] The UFU also submitted that the parties have ‘underutilised’ the Commission’s resources in trying to negotiate the Proposed Agreement.48 UFU contended that significant progress was made during the two s.240 conciliation conferences before Commissioner Platt. Given the significant progress that was made, UFU contended that weight should be given to the likelihood that further assistance from the Commission would, in the future, assist the parties to reach agreement on the outstanding issues.49 [58] The UFU submitted that industrial action that has occurred since the commencement of formal bargaining has been measured and that all action taken has not had a substantial impact on Ventia’s capacity to deliver services to the Department.50 [59] The Union have not (to this point) proposed further industrial action because of ongoing negotiations for the New Contract.51 [60] On 11 September 2023, Venia advised its employees that it was the only company being invited to tender for the New Contract.52 UFU noted that the change in the tender process meant the tender process changed to a one-on-one negotiation for the New Contract.53 The UFU contends that this affects the dynamic of bargaining between that parties.54 It was also submitted that the change in dynamic may encourage employees to authorise other forms of industrial action as a lever in negotiations and this could lead to progress being made. [61] The UFU submitted that an important factor in determining this element is the ‘likelihood that if … [the Declaration was not made], employees will return to bargaining more freely able to exercise their right to take industrial action because the tender process is no longer competitive, or as appears likely …, Ventia has been awarded a new contract’.55 [62] In that connection, the UFU also submitted that that the making of an intractable bargaining declaration under the Act brings to an end enterprise level bargaining, with the associated access to PIA, and replaces it with a binding arbitration in the Commission. This was described as a “high bar that Parliament has set” in reaching both the judgments required by s.235(2)(b). “It's not no prospect. A small prospect is enough for the Commission not to make a declaration, and so we say that's a very high bar and that is consistent with parliament's intention here. Parliament's intention is to put in place a circuit breaker. It's not to replace bargaining, it's not to give the parties another tool in the toolkit to be used in the bargaining process …”56 [63] As stated earlier, Ventia relied on [42] of UFU v FRV in their written submissions.57 The UFU sought to distinguish the approach on three grounds relevant to that matter that are not reflective of the present application:58 1. The bargaining between the UFU and the FRV had been ongoing for more than three years. [2023] FWC 3041 16 2. There was the prospect of the parties in UFU v FRV having to return to bargaining if a Declaration were not made, in circumstances were there was a ‘bitter disagreement’ about claims in dispute. 3. The parties in UFU v FRV had all agreed that the bargaining was intractable. [64] The UFU further argued that unlike UFU v FVR, there is nothing to suggest that future industrial action taken by employees of Ventia would result in disruption to the operations of the Australia Defence Force. [65] The UFU submitted that the change in the tender process was a significant change in circumstances which may affect the disposition of the parties to bargaining.59 [66] The Union also contended that Ventia had refused to improve its financial offers on the basis of a competitive tender process for the New Contract.60 It was submitted that the change in the tender process meant that Ventia would likely find itself in a secure contractual position61 and will be in a better position to evaluate the financial claims made by the Union. [67] Further, the UFU submitted that the change in the tender process meant that employees would likely be less concerned in relation to their own job security, which would impact their attitude toward the bargaining process.62 It further contended that one additional example of the difference arising from the contract process was the redundancy provisions. Where the likelihood of redundancies may have changed due to that positive development, the actual costs of meeting a claim of that kind reduces. Reasonable in all the Circumstances [68] The UFU submitted that the Commission ultimately cannot be satisfied that it is reasonable in all the circumstances to make the Declaration.63 [69] It was contended that the assessment of the relationship between the parties generally concerns a ‘breakdown of the relationship’.64 The UFU submitted that there is a good relationship between the parties, which weighs against the making of the Declaration.65 [70] The UFU submitted that the bargaining period has not been ‘unusually long, or difficult’.66 It noted that formal bargaining for the Vic and NSW 2022 Agreement occurred over a longer period of time.67 [71] It was further submitted that Ventia’s conduct during the formal bargaining process weighs against the making of the Declaration. The Union argued that ‘Ventia was using the threat of this [Declaration] application to gain a strategic advantage [in the bargaining process]’.68 Reference was made to an email that Ventia sent to its employees on 18 August 2023, which relevantly reads:69 “… However, in the unfortunate circumstance of an unsuccessful vote, Ventia will seek the Commission’s assistance to arbitrate the outcome…”70 [2023] FWC 3041 17 [72] It was submitted that this factor alone is a sufficient reason for the Commission to exercise its discretion under s.235(2)(c) and refuse to grant the Declaration.71 [73] The UFU submitted that there is no evidence to support the Employer’s proposition that their financial offer made by them was inconsistent with ‘the prevailing economic circumstances’.72 [74] The UFU further contended that the bargaining environment is such that this supports a finding that it is not reasonable in all the circumstances to make the Declaration.73 This includes the contract process and the UFU submits that it would be premature for the Commission to make a declaration.74 This included the notion that in the unlikely event that Ventia were unsuccessful in securing the New Contract, there would be no utility in the Commission making a Declaration, and subsequently arbitrating the matter.75 4.3 Witness evidence [75] Ventia relied upon witness statements made by the following persons: • Paul Nicholas76 Director, Defence Operational Services of Ventia; and • Zev Costi77 Director, Strategic Employee Relations Pty Ltd. [76] The UFU relied upon a witness statement made by Jeremy Murphy,78 its Industrial Officer. [77] The witnesses were not subject to cross examination. [78] In general terms, there is little dispute on the objective facts. However, there are significantly different perspectives and each of the witnesses have a different role. Where there are differences about the objective bargaining position adopted by a party, I have accepted their direct evidence or submissions made on instructions about that position – such as the Employer’s position on its latest wages proposal and the UFU’s position on the life of a proposed agreement. The findings I have made on the essential disputed facts are otherwise set out in the factual and other findings and considerations made below. [79] There are elements of opinion in the statements, including about matters that are to be determined by the Commission, and I have treated these aspects of the “evidence” as submissions. 5. Consideration 5.1 Has an application for the declaration been made? – s. 235(1)(a) [80] There is no dispute that Ventia has made a valid application under s.234 of the FW Act. It is a bargaining representative for the proposed agreement, and the application is made in relation to a single-enterprise agreement, not a multi-enterprise agreement. 5.2 Is it after the end of the minimum bargaining period? – s.235(1)(c) [2023] FWC 3041 18 [81] The end of the minimum bargaining period is the later of the day that is 9 months after the nominal expiry date of the 2018 Enterprise Agreement or the day that is 9 months after the day bargaining starts.79 [82] The nominal expiry date of the 2018 Enterprise Agreement was 28 September 2022. The notification time for the proposed agreement was no later than 5 August 2022, when Ventia issued the NERR. The nominal expiry date is therefore the later date for the purpose of s.235(5), and more than nine months have passed since that date. 5.3 Has the FWC dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC’s processes to deal with the dispute? - s.235(2)(a) [83] Ventia have participated in two s.240 conciliation conferences before Commissioner Platt.80 The matters dealt with in those conferences included core issues that are subject to the present proceedings. Given the scope of the s.240 conciliation conferences and the fact that each concerned the bargaining for the Proposed Agreement under consideration here, I am satisfied that ‘the dispute’ has previously been dealt with under s.240 of the FW Act. 5.4 No Reasonable Prospects of Agreement Being Reached – s.235(2)(b) [84] The precise requirement of s.235(2)(b) has been set out earlier in this Decision. Stated in short terms, the Commission must be satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make the Declaration. For reasons also set out earlier this, in effect, requires an evaluative judgment that it is rationally improbable that an agreement will be reached – in the absence of the Declaration sought. I add that each case must be considered in its own circumstances and that comparisons between bargaining experiences and outcomes in other matters, applied with caution. [85] The parties in this matter have been bargaining for an extended period of time. There have been numerous bargaining meetings and there are a number of significant outstanding (unresolved) matters. The fact that the Commission has been involved in assisting parties through the s.240 process not only satisfies s.235(2)(a) of the FW Act but this, along with the other factors above, is supportive of the notion that the bargaining has become intractable in a general sense. There is also little doubt that the bargaining is presently at an impasse, including by virtue of the positions adopted by the parties on some of the key outstanding items. That is, Ventia consider that the catch-up claims of the UFU are unsustainable, particularly in the context of the contract tendering process, and the UFU is committed to making progress on those matters. [86] I also take into account that Ventia’s most recent proposal was soundly rejected by the employees in a ballot in late August this year. This is also supportive of Ventia’s position in this application. However, I also observe that there have no meaningful negotiations since that time. [2023] FWC 3041 19 [87] Despite the above factors, there are other countervailing factors that on balance ultimately lead to the contrary conclusion. These include that there has been changes in the bargaining context that alter the prospects of reaching an agreement. These include: • The confirmation that UFU is open to an agreement of a much longer duration than previously formally adopted in negotiations; and • The developments in the contract tendering process are such that the positions of one or both of the parties may be revised; albeit on a basis that does not fully reflect the UFU’s position. [88] In terms of the first of these developments, this occurred during the hearing by way of the following submissions made on behalf of the UFU in the context of a formal claim that the Proposed Agreement have a life until June 2024: “PN216 Mr Smith makes the point we may not even have an agreement by that date, and I accept that. I am instructed that we would pursue a three year deal. And so the difference between three years and four years again is different to the position as Ventia understands it. … … PN323 MR BROMBERG: Deputy President, sorry, there is one thing and it's not by way of reply to reply, but I do think it's worth bringing to your attention, the first point made by Mr Smith was that they have never heard of this three year concession before. If you turn to ZC5, which is attached to Mr Costi's statement, item 2, nominal expiry, Ventia's position 30 September 2025. 'The UFU's position, the UFU have indicated that it is potentially willing to accept 30 September 2025', which, on my account is pretty close to three years. PN324 Now we accept that - and only on instruction, although instruction with authority, to convey that we would be contenting for a three-year term from approval. Of course, we would need to further articulate the way in which that affects the wage increases and whatnot. But on nominal expiry date, I was keen to first of all identify that clearly April 2024 is not a workable date anymore, and to update that81. [89] In this regard, I note that there remains a difference in the position on life between the parties and that there is an associated issue about any “retrospectivity”. Further, the UFU has foreshadowed a change in its wages bargaining position in light of the much longer agreement it now proposes. [90] I consider that I should have regard to this development despite the late context in which it was provided. The position was communicated on direct and confirmed instructions prior to the finalisation of the hearing and is a further development of a position already communicated. [2023] FWC 3041 20 Ventia has had an opportunity to respond to the development and the Commission should in my view have regard to all relevant circumstances at the time of determination of the application. [91] The contract developments are best described in a letter provided by Ventia to its employees on 11 September 2023 as attached to the witness statement of Mr Murphy for the UFU: “Contract Update Hi All I am pleased to share the following news with you, regarding recent developments in the Base Services Transformation tender focusing on the Fire Fighting Service package. Defence has advised that Ventia has progressed through the tendering process, resulting in Ventia as the only company down selected through to the Request for Tender (RFT) phase and therefore being invited to tender for the Fire Fighting Service (FFS) package. This is positive news for us as we move through the tendering process. The next step includes Ventia being requested to respond to the RFT documents, expected to be released on the 21st of September, at this time Ventia will be given approximately 4 weeks to respond to the full RFT process including a full tender response to the scope and pricing for the next term of the contract. While the news is a positive development, it is important that we note that Defence is requesting a full tender response from Ventia, followed by negotiations, and noting no future contract is granted until there is a signed contract. We must continue to provide Defence with the service, capability, and value for money in terms of today, tomorrow and into the next decade. Whilst being the sole short list contender for the BST FFS Contract is a reflection in our ability to operate a professional fire and rescue service it is not confirmation of a winning contract bid. Over the coming months, the bid team and I will showcase our service, respond to contract scope changes in the RFT submission, and price accordingly. We have numerous hurdles to meet in a short timeframe, which I will work through with the bid team. While timelines beyond the next stage are unclear to me, I will communicate as information comes to hand during the RFT process. Regards Col Anderson National Manager82” [92] In relation to both of these developments, I accept that ultimately it may be that the respective bargaining positions of the parties may not change sufficiently to reach an agreement. However, this has not been tested and the evidence is that these factors have played a very important part in the bargaining dispute to date. This has included that the positions of both [2023] FWC 3041 21 parties and their approach to bargaining has been influenced to varying degrees by the timing and dynamics of the contract tendering process. [93] In addition, although the bargaining has been in place for an extended period, the duration of active bargaining has been only for part of that time and dominated by the impact of the contract tendering process. There has also been very little bargaining, if any, since the unsuccessful employee ballot in August this year and the contract developments. Although there is still no certainty that Ventia will be successful in their contract tender, the fact that it is now the sole tenderer is likely to mean that an understanding of its costs base and the context in which the work might be performed under the Proposed Agreement is now more advanced. This is likely to better inform the negotiations and creates the potential for progress. As the UFU rightly acknowledges,83 the developments in the contract tendering process as it further unfolds will not necessarily favour one party or the other. [94] The key claims remaining in dispute can be categorised as term of operation, uniforms and equipment, wages, allowances, and leave and redundancy entitlements.84 [95] In terms of wages, the proposal that was made to the employees in August involved an offer to back pay the first wage increase to 1 October 2023, conditional on the offer being accepted, and the company offered a $1,000 sign on bonus, also conditional on the offer being accepted. In light of the rejection of that proposal, the backpay and sign on bonus are no longer part of Ventia’s position or proposed agreement. [96] Ventia’s present proposal involves wage increases totalling 10 and a half per cent over a three year period, with three 3.5 per cent wage increases payable from the date the agreement comes into effect, and subsequently 12 months later and 24 months later. [97] The UFU is presently seeking 13.7 per cent in total for wage increases; four times 3.425 per cent wage increases, with the first one backdated to 1 October 2022, in the context of an agreement with a shorter life. [98] The UFU is also seeking the introduction of the aviation and first aid allowances, which would potentially apply to most of the employees who would be subject to the proposed agreement. The UFU is also claiming significant increase in personal leave and long service leave and redundancy benefits. [99] Some of these outstanding claims and the differences in the associated positions are significant; mainly those associated with remuneration, leave and redundancy, and the life of the agreement, which are clearly linked. However, particularly when considered in the context of a potential longer-term agreement that is now more clearly on the table, progress in the bargaining towards the making of an agreement is feasible. The extent of present differences in bargaining positions between the parties is also not unusual in bargaining, including when it has been conducted over many months and parties have expressed what are said to be “final” proposals, as is the position advanced, in effect, by Ventia. In my view, a continuation of bargaining has the potential to lead to progress and the possibility of making an agreement remains real in this matter. [2023] FWC 3041 22 [100] In making this assessment, I have had regard to the competing views about the appropriateness or reasonableness of the catchup claims being pursued by the UFU. The fact that claims of this nature have been made, and recently adopted in whole or in part, by Ventia in other agreements is a factor in the negotiations. Further, the UFU has confirmed that its catchup claims are issues to be pursued over time. Also however, the fact that Ventia does not wish to flow on those terms to other contracts that take place in other States is also relevant. Both positions are on face value reasonable bargaining propositions and this tension, of itself, is a normal part of bargaining. [101] I also observe that whilst the s.240 process before the Commission was valuable, and progress was made on a number of outstanding matters, this is now some months ago and has not been utilised since the more recent developments. [102] The parties in this matter have a long history of successfully making enterprise agreements relevant to this group of employees. I would accept that the context for this round of bargaining is arguably more difficult, for reasons outlined above. However, the lines of communications and negotiations between the bargaining representatives remain open and constructive. [103] It is common ground that the Commission should take into account the implications of the current and potential PIA in the present context.85 PIA has been occurring since late April this year and most of the notified action continues. The details are set out in the evidence of Mr Mitchell86 and the nature and impact of the action discussed elsewhere in the evidence. The PIA involves 8 bans on certain activities including administration, overtime and resetting certain nominated alarms. Despite its scope and duration, the PIA has been relatively low key, at least in the sense of disruption to core operations of Ventia, and there is no suggestion that it has impacted the capacity or willingness of the UFU members to respond to emergencies or their major fire and rescue functions. [104] The fact that the PIA has been taken and has not led to an agreement is a relevant consideration in assessing the prospects of an agreement being reached. The fact that the action to date has been as described above is also a relevant consideration. In weighing up whether the bargaining is intractable, I have considered both the capacity for further PIA to be taken (in the absence of a Declaration)87 and its capacity to facilitate changes in the position of Ventia, and the fact that PIA can (and should) be limited to some degree by the critical safety context in which the services are provided in this particular matter. The first of these aspects recognises that the taking of PIA for this purpose is a part of the very scheme of the Act when bargaining for a relevant enterprise agreement. The second consideration is recognised, at least by implication, by the UFU88 and places some practical context around the degree to which this aspect would change the bargaining dynamics so as to more readily advance the making of an agreement. In any event, should that limit not be the result, there are avenues available to Ventia under the FW Act.89 [105] In the end result, the consideration of the role that has and might be played by the PIA in this matter does not significantly advance either case, but remains relevant for the reasons outlined above. [2023] FWC 3041 23 [106] Ultimately, when all of the circumstances of this matter are taken into account and weighed on balance, I do not consider that at this point it is rationally improbable that an agreement might be reached in the absence of the claimed Declaration. More directly, I am not presently satisfied that there is no reasonable prospect of an agreement being reached if the Commission does not make the declaration sought by Ventia. 5.5 Reasonable in all the Circumstances – s.235(2)(c) [107] Given the above finding, the discretion to make the declaration where satisfied that it is reasonable in all of the circumstances does not arise. 6. Conclusions and Orders [108] For the reasons set out above, I have not been persuaded that the necessary foundation for the making of a Declaration has been demonstrated. As a result, I am obliged to dismiss this application and I so Order. [109] I would encourage the parties to return to the Commission for further assisted bargaining. To that end, a fresh s.240 application might be lodged. DEPUTY PRESIDENT Appearances: S Smith of Actus Workplace Lawyers, with permission, for Ventia Australia Pty Ltd. B Bromberg (of Counsel) with permission, with J Murphy for the United Firefighters’ Union of Australia. Hearing details: 2023 November 21 MS Teams Video Hearing. [2023] FWC 3041 24 Printed by authority of the Commonwealth Government Printer <PR768446> 1 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Sch 1, Part 18. 2 [2023] FWCFB 180. 3 Ibid at [1]. 4 Application by United Workers’ Union, Australian Education Union and Independent Education Union of Australia [2023] FWCFB 176 at [29]. 5 Sections 235(1)(a), (c) of the FW Act. 6 Buck v Bavone [1976] HCA 24, 135 CLR 110 at 118-119 (Gibbs J). 7 Spencer v Commonwealth [2010] HCA 28, 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ). 8 United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180 at [29]. 9 Suncoast Scaffold Pty Ltd [2023] FWCFB 105 at [17]. 10 Revised Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 at [847]. 11 Ibid at [853]. 12 Section 413(7)(c) of the FW Act. 13 FW Act s.235(2)(b). 14 Ibid s.235(2)(c). 15 Exhibit 2 at [6]. 16 Ibid. 17 Ibid at [7]. 18Ibid. 19 Ibid at [10]. 20 Ibid at [11]. 21 Ibid at [13]. 22 Ibid at [14] – [18]. 23 Transcript PN71. 24 Applicant’s Written Submissions at [58]. 25 Transcript PN91. 26 Exhibit 3 at [8]. 27 Ibid at [24]. 28 Ibid at [24]. 29 Ibid at [24]. 30 Applicant’s Written Submissions at [60]; UFU v FRV at [29]. 31 Applicant’s Written Submissions at [61]. 32 Ibid at [63] – [64]. 33 UFU v FRV at [42]. 34 Exhibit 2 at [21]. 35 Ibid at [24]. 36 Ibidat [24]. [2023] FWC 3041 25 37 Ibid at [66]. 38 Ibid at [67]-[68]. 39 Respondent Written Submissions at [18]. 40 Ventia and UFU Vic and NSW Fire Rescue Enterprise Agreement 2022, Broadspectrum and UFU NSW Fire and Rescue Enerprise Agreement 2018, Broadspectrum VIC and UFU Fire and Rescue Enterprise Agreement 2017, Transfield Services Defence Base Services (Vic) and the United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2015, TSL Defence Services (NSW) and UFU Fire and Rescue Enterprise Agreement 2015. 41 Respondent’s Written Submissions at [31]. 42 Ibid at [43]. 43 Ibid at [34] – [38]. 44 Ibid at [37]. 45 Exhibit 1 at [5]. 46 Respondent’s Written Submissions at [39] – [43]: The UFU argued that Items 12, 16 and 17 within [5] of Exhibit 1 were not formal bargaining meetings. 47 Respondent’s Written Submissions at [41]. 48 Ibid at [48]. 49 Ibid at [52]. 50 Ibid at [55]; Exhibit 4 at [14]. 51 Respondent Written Submissions at [56]. 52 Ibid at [57]; Exhibit 4 at Annex JM-3. 53 Respondent’s Written Submissions at [58]; Exhibit 4 at [27] and Annex JM-3. 54 Respondent’s Written Submissions at [61]. 55 Ibid at [59]. 56 Transcript PN152 and PN153. 57 Applicant’s Written Submissions at [63]. 58 Respondent’s Written Submissions at [60]. 59 Ibid at [61] – [72]. 60 Ibid at [65]. 61: Ibid at [69]. 62 Ibid at [69]; Exhibit 4 at [24] – [26]. 63 Respondent’s Written Submissions at [73]. 64 Ibid at [75]. 65 Ibid 66 Ibid at [76]. 67 Ibis at [76]; Exhibit 4at [16] – [20]. 68 Respondent’s Written Submissions at [78] – [79]. 69 Ibid at [79]. 70 Exhibit 4 at Annex JM-2. 71 Respondent’s Written Submissions at [81]. 72 Ibid at [82]. 73 Ibid at [83] – [85]. 74 Ibid at [86]. 75 Ibid. 76 Exhibit 2. 77 Exhibit 3. [2023] FWC 3041 26 78 Exhibit 4. 79 Section 235(5) of the FW Act. 80 Exhibit 1 at [5]. 81 Transcript. 82 Exhibit 4. 83 Transcript PN192. 84 Exhibit 1 at [13]. 85 And for the purposes of the second issue (s.235(2)(c)) should that arise, where it would be of greater significance. 86 Exhibit 2 at [25]. 87 Section 413(7)(c) of the FW Act would prevent further PIA if a Declaration were made. 88 Transcript PN250. 89 Including s.424 of the FW Act.