The Commission considered that it was obliged to apply the Bundesgerichtshof`s decision in this case, which was not patently false (although doubts were maintained on this matter), had not been quashed and could not be distinguished from this case. In this regard, the Commission found that, as an administrative tribunal, it was not competent to make findings of law and could not ignore the decision. Accordingly, the Commission found that, to the extent that no argument had been made that the terms of the proposed agreement were directly discriminatory, there were no discriminatory conditions for the purposes of Section 195 to prevent the authorization. The Fair Work Act 2009 (Cth) stipulates that the Fair Work Commission must ensure, before approving an enterprise agreement, that the agreement does not contain illegal conditions, which includes discriminatory conditions. Section 195 of the Act states that a discriminatory term is a term that « discriminates » on the basis of a protected attribute, including race, skin colour, gender, age of sexual orientation, family responsibility or the caregiver`s responsibility or religion. The Commission then found that the agreement contained concepts that indirectly discriminate against women and people with family and caregiver responsibilities. As a result of this finding, the Commission found itself in an unfortunate situation to find that indirectly discriminatory concepts do not constitute a basis for refusing approval of the proposed agreement. However, for non-coherent reasons, the Commission decided that the agreement should not be approved and gave the MFB 21 days to make commitments to allay its fears. This decision shows that the definition of discriminatory concepts under the law remains unclear and it is therefore not certain that enterprise agreements indirectly containing discriminatory concepts may be permitted or whether these concepts have any effect in existing agreements. Despite the outcome of this case, this is a contentious legal area that can be amended until an appeal from the Bundesgerichtshof is brought, which may be considered likely given the well-documented litigation involved in the approval process for this particular enterprise agreement. The Minister and VEOHRC did not argue and the Commission did not find that any of the terms of the agreement were directly discriminatory.
The Fair Labour Commission therefore had to determine whether « discrimination » involved indirect discrimination. Employers should therefore seek advice on the terms of the proposed enterprise agreements, in particular whether workers are subject to direct or indirect discrimination. (c) an increase in the salary of the non-SES employee, which takes effect as part of an individual flexibility agreement agreed with the non-employee of SES, which is, under paragraph 202, paragraph 2, point b), of the Fair Work Act 2009, a clause in an enterprise contract applicable to non-EMPLOYEE of SES; In April 2018, the Metropolitan Fire and Emergency Services Board (MFB) submitted an application to the Fair Work Work Commission for approval from the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016. The content of this proposed agreement has been the subject of numerous public and media controls and controversies. In a recent request from the Metropolitan Fire and Emergency Services Board  FWC 106, the Fair Work Commission addressed this issue and found that the terms of a proposed enterprise agreement, which indirectly discriminated against women and persons with family and caregiver responsibilities, did not constitute a basis for the refusal of approval of the agreement.