ENTERPRISE AGREEMENTS – approval – unlawful terms – ss.185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission approved the Australian Federal Police Enterprise Agreement 2017-2020 – the appellant was a bargaining representative for the proposed agreement – central to the matter at first instance, and again agitated in the appeal, was the question whether clause 46 of the Agreement is an unlawful term within the meaning of s.194 of the FW Act because it is a discriminatory term as described in s.195 and/or an objectionable term within the meaning of s.12 – clause 46 makes provision for maternity leave, including paid maternity leave in certain circumstances – grounds of appeal included issues of procedural fairness, and whether the Commission erred in being satisfied that the Agreement does not include any unlawful terms – Full Bench did not consider that the absence of an oral hearing resulted in any denial of procedural fairness to the appellant – appellant made comprehensive written submissions and the bases for his objection to the approval of the Agreement were set out therein – the apprehended bias ground of appeal was founded on a comment said to have been made by the Commission during the telephone conference on 18 April 2018 – that maternity leave is by definition for women – appellant contended it was clear during that conference that the Commission was predisposed against the appellant’s discrimination argument – proceeding on the basis that the Commission made a statement or statements as asserted by the appellant, the Full Bench held that the Commission was formulating a proposition so that its correctness could be tested and expressing no more than a preliminary view or an inclination or disinclination towards an argument or conclusion – held that the apprehended bias ground of appeal advanced by the appellant must fail – appellant contended before the Commission, and again before the Full Bench, that clause 46(2) was an unlawful term – whether clause 46(2) is a discriminatory term, and whether it is an objectionable term – the appellant asserted on a number of occasions that the additional leave for which provision is made in clause 46(2) of the Agreement was not maternity leave and was as a matter of fact primary caregivers leave – Full Bench held the entitlement for which provision is made by clause 46(2) of the Agreement is plainly for additional maternity leave – noted the appellant did not lead evidence as to the nature of additional maternity leave as a matter of fact – the Commission can hardly be criticised for not taking into account a ‘fact’ which the appellant failed to establish by evidence, presumably thinking that an appropriate substitute was dogmatic repetition of an unsustainable mantra – Full Bench concluded that the impugned term did not directly discriminate against an employee covered by the Agreement because of or for reasons including the employee’s sex, sexual orientation, family or carer’s responsibilities – the impugned term is not an objectionable term within the meaning of s.12 – the grounds of appeal and contentions directed to this conclusion are rejected – Full Bench not persuaded that the appellant made out a case of arguable error – did not consider that the public interest is enlivened – held that the Commission’s ultimate conclusion at first instance was correct – permission to appeal refused. Appeal by Budd against decision of Kovacic DP of 17 May 2018 [[2018] FWCA 2776] Re: Australian Federal Police
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