During the oral proceedings, the Minister and VEOHRC, among other things, advanced an interpretation of section 195 of the FW Act, which indirectly prohibits discriminatory conditions of enterprise agreements. The MFB rejected this interpretation. This proposal was submitted by the competing federal judicial authorities Klein/Metropolitan Fire and Emergency Services Board 2 (with respect to Section 351 of the FW Act) and Shop, Distributive and Allied Employees Association (No 2) (SDA) 3 (which considered a provision equivalent to Section 195, but with respect to discriminatory terms under modern attribution (section 153). Requests for review and application of variations were heard on 4 June 2019 by a full commission composed of Mr Hatcher, Vice-President Masson and Commissioner Lee. 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. 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. But the agreement took a long time to be reviewed in just five months. 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.
The full-fledged bank found that the terms of the section cited by the Minister reflected the assertion that sections 191, paragraph 1 and 191, paragraph 2, should apply to agreements with a single employer and to agreements with several employers and „cannot be read in the sense that companies are not in a position to: amending the rights of persons who are bound by an agreement other than the employer.“21 Full Bench found that companies generally imposed obligations on both the employer and the worker and „[his] surprise at having even been advanced.22 Full Bench stated that if the Commission felt it should apply the Federal Court`s decision in this case , it was not clearly wrong (although there were doubts about this), was not repealed and cannot 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.