Fire Rescue Victoria v United Firefighters' Union of Australia

Having regard to the provisions of s.590 and s.593 of the Fair Work Act 2009, the following Orders are made by the Commission; (a) Subject to paragraphs (b), (c) and (d) herein, the United Firefighters' Union of Australia of 410 Brunswick Street Fitzroy VIC 3065 is ORDERED to provide to the Fair Work Commission the documents, records and other information specified in the Schedule to this order ("the Documents") before the Fair Work Commission at the following time, date and place: Time: 10:00 AM Date: Tuesday, 8 October 2024 Place: Via email to Chambers.Wilson.C@fwc.gov.au kgulle@landers.com.au and ataraborrelli@landers.com.au (b) Until further order of the Commission, the Documents so produced are confidential and may not be distributed to or accessed by a person other than; (i) the United Firefighters' Union of Australia, its lawyers and persons it authorises; (ii) a nominated senior executive of Fire Rescue Victoria and lawyers acting for Fire Rescue Victoria in relation to the proceedings before the Fair Work Commission in matter number C2024/5387; (iii) a Member or employee of the Fair Work Commission dealing with matter number C2024/5387. (c) Fire Rescue Victoria is to advise the Commission and the United Firefighters' Union of Australia of the name and position of the "nominated senior executive" referred to in paragraph (b)(ii), by no later than 10 AM Monday 30 September 2024. (d) A person authorised by paragraph (b)(ii) above to access the Documents may only do so for the purposes of responding to the Fair Work Commission proceedings in matter number C2024/5387. [emphasis in original]

The Union had not complied with the production order. However, it said it was not required to do so because the production order only applied to conciliation and, having moved to arbitration, the order was 'spent'.

LEGAL PRINCIPLES

Interlocutory injunctions

An Order will be made by the Commission through separate instrument in the following terms (and dealing only with the first stage referred to above).

At the time of the production order, the matter before the Commission was a conciliation. The matter had not reached (and might not have proceeded to) arbitration. FRV submitted that the production order was an order for production of the Trust Deed without regard to the stage of the matter before the Commission. Further, that what the Commissioner contemplated by the order was that there would be production of the Trust Deed in accordance with the order and that, should the application before the Commission proceed to arbitration, the issue to be revisited was whether the constraints in relation to confidentiality and the dissemination of the Trust Deed should be lifted to make it "generally available to the parties": see [24] of the production decision.
The Union submitted that Commissioner Wilson contemplated that the order for production would be for the conciliation only and that the question of production in the arbitration would be "subject to further determination" and dealt with at a later time: see [24] of the production decision. The difficulty, however, with that argument was that, first, the production order was for the production of the Trust Deed, albeit with restrictions placed on the persons who could access the Trust Deed and obligations imposed as to confidentiality. As FRV submitted, production was to occur by that order and it is nonsensical to suggest a further order for production would be required. Second, the production order clearly contemplated that the Trust Deed would be a matter on which the Commission could inform itself under s 590, so as to ensure the entire process before the Commission was not "ineffective" and Commission as arbitrator was not "inadvertently misdirected".
In my assessment, the matters which the Commissioner considered ought to be revisited, at the time of the arbitration, were the terms and extent of production of the Trust Deed. That is evident from the production decision and paragraph 1(b) of the production order. The effect of paragraph 1(b) of the production order was that the Trust Deed was to be kept confidential, and not be distributed other than to the persons in paragraph 1(b) of the order, "until further order of the Commission". Under the production order, confidentiality was addressed by invoking the provisions of s 593 and by limiting production to the persons referred to in the order. It was the confidentiality issue and whether the document should be "generally available" which the Commissioner considered should be dealt with at the arbitration. These matters also indicate that the Commissioner did not intend the orders to end when the conciliation came to an end, as the Union contended.
As a result, I am satisfied that FRV has demonstrated a prima facie case. The Union submitted that procedural orders are not binding on it and that the cases relied upon by FRV dealt with arbitral awards, and were distinguishable: see Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1; [2017] FCAFC 112 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123. However, the Union did not take me to any authorities directly on point and it is to be noted that the Union has not objected to the jurisdiction of the Commission. In my assessment, it is at least arguable on the construction of the dispute resolution clause in the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 that the agreement to refer a matter to the Commission and for the Commission to utilise all of its powers is an agreement to be bound by the powers exercised by the Commission. Moreover, FRV contended that the Union was estopped from denying that it has an enforceable obligation under the dispute resolution clause to comply with the production order: see Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993.
On the question of the balance of convenience, I am satisfied that the balance of convenience favours FRV. The Union had not complied with the production order which was made in late September 2024. The Union abandoned an appeal of the order. It unsuccessfully sought a stay and it had abandoned proceedings to challenge the stay decision. On 29 November 2024, it foreshadowed an application to vary the production order, however, no such application was made.
The Union submitted that, at a directions hearing on 4 December 2024, senior counsel for the Union informed the Deputy President of the Commission that it regarded the order as no longer extant. I accept that there was some attempt to do so, however, it was clear that the Deputy President was proceeding on the basis that the order was extant and was expecting compliance with the order. The Deputy President said, the separate question of the "use of the document that's the subject of the order for purpose of an arbitration might require a further determination by the Bench" (PN16). After counsel for FRV rejected the suggestion that "skipping the conciliation stage means that the order falls away or compliance of the order is not required", and that any submission to that effect should be rejected, the Deputy President said: PN27 DEPUTY PRESIDENT COLMAN: Yes. I think Mr Borenstein was, as I understood it, displaying that at least in the UFU's point of view there might be a further decision that a Full Bench now or would need to make at some point about whether the document, which I think clearly has to be produced - and that a further decision would be required. PN28 I understand now that you dispute this, but a further decision by the Full Bench would be required before the document produced could be used in the arbitration. But I mean, we're nowhere near that point. We're at the point of programming the matter for a hearing, and I mean one imagines, you know, in the ordinary course, well an F52 order for production is issued, the party complies with its legal obligations to do what the Commission orders it to do and produces the document. PN29 When the arbitration comes on for hearing, to the extent that there's a disagreement or further things to be said about what use might be made of the document in the arbitration, well the parties can stand up and say what they like at the start of the proceeding in the course of dealing with any preliminary matters, and the Full Bench will just decide the matter then to the extent a further decision is necessary.
In my assessment, the Deputy President was proceeding on the basis that the order was extant and that the separate question as to the "use" of the document in the arbitration would be dealt with by the Full Bench. That ought to have been clear to the Union. If the Union had a contrary view, it was incumbent on the Union to state its position clearly. It did not do so. It has had ample time to return to the Commission to clarify or alter the position, but it has chosen not to do so.
The Union submitted that there was no harm to FRV if the injunction was not granted because the question of the production of the Trust Deed could and would be dealt with at the start of the arbitration. In my assessment, the Full Bench was intending to return to the issue of the "use" of the Trust Deed in the arbitration, meaning the issue of its admissibility. By that point, FRV would have had to prepare its material. FRV wanted to see the Trust Deed to prepare for the arbitration and to consider what, if any, use it might seek to make of the Trust Deed. It would be prejudiced in that regard if the Trust Deed were not produced in time for it to prepare its case and, in my assessment, that prejudice was not adequately addressed by the earlier production to its tax advisors.
The Union submitted that the Court should not interfere with the Commission's processes and ability to determine its own processes. I have been very mindful of that issue. However, on my interpretation of the Commission's orders and the materials before me, the Commission was reserving to itself the question as to the "use" of the Trust Deed at the arbitration, meaning whether or not it might be tendered in evidence, and any injunction made by this Court would not interfere with the Commission's power to determine that issue. I refer to Justice Hatcher's observations in the decision to refuse to stay the production order, at [30]: This submission may be accepted only in the narrow sense that the Trust Deed will have to be produced (to the Commission, not FRV) and disclosed to the single person nominated by FRV if a stay is not granted. However, the ultimate purpose of orders for production of documents is the use of the documents in the proceedings in question. The Commissioner has made no determination as to whether the Trust Deed should be admitted into evidence or otherwise used in the proceedings, and the UFU's rights in this respect are maintained if a stay is not granted. The UFU did not otherwise identify any substantive prejudice which will arise if a stay is not granted. Its assertion that the Trust Deed is confidential lacked content in that it was not explained what about it is actually confidential or what prejudice to the UFU might flow from its production in accordance with the Order.
Finally, the Union's submission that an order for production would destroy the subject matter of the litigation, if it turns out later that the Trust Deed was not used in the arbitration, has no force. In my assessment, the Commission ordered the Trust Deed to be produced so that it could inform itself of a matter under s 590 of the FW Act and to FRV, on a limited basis, with the only issue to be determined later being the use to which the document may be put, in terms of its admissibility. The Union's position and ability to later make submissions about the admissibility of the Trust Deed was not prejudiced by the order for production which was contemplated by the Commission.

CONCLUSION

For the reasons set out above, I would make an order for production of the Trust Deed and the Union's application for a stay of the interlocutory relief sought by FRV will be dismissed.
Insofar as FRV also sought relief against the second respondent, I have decided not to grant that relief as the production order was made against the Union and there was no suggestion that the Union would not comply with an order of this Court.
The proceeding will otherwise be referred to the National Operations Registry for allocation to a Docket Judge to, among other things, deal with the balance of the Union's interlocutory application. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.

Associate: Dated: 13 February 2025

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (18)