United Firefighters' Union of Australia v Country Fire Authority

O'CALLAGHAN J: 1 By an interlocutory application dated 8 July 2022, the United Firefighters' Union of Australia (the UFU or the applicant) seeks an expedited hearing of this proceeding. 2 The parties filed written submissions in respect of the application and a hearing took place yesterday, at which Mr H Borenstein KC appeared with Mr JC McKenna of counsel for the applicant, and Mr CB O'Grady KC appeared with Mr ARM Pollock of counsel for the respondent. For obvious reasons, the matter needed to be determined promptly. 3 The applicant is an organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth). 4 The respondent (the CFA or the respondent) is an authority constituted under the Country Fire Authority Act 1958 (Vic). By s 6(2) of that Act, it is established as a body corporate. 5 The proceeding is brought under s 562 of the Fair Work Act 2009 (Cth) (FW Act) and in the court's accrued jurisdiction. The applicant's claims in this proceeding relate to the CFA's conduct and actions in relation to the making of an enterprise agreement under Part 2-4 of the FW Act, whether the agreement contains clauses that are not permitted matters within the meaning in s 172 of the FW Act, and the jurisdiction of the Fair Work Commission (Commission) to approve such an agreement. 6 The respondent and its professional, technical and administrative staff (PTA staff) are presently covered by the CFA Professional, Technical and Administrative Agreement 2020, which remains in operation until replaced by a new enterprise agreement. The applicant is also covered by that agreement. 7 The respondent has been engaged in bargaining for an enterprise agreement to cover its PTA staff to replace the 2020 agreement. That proposed new agreement is called the CFA Professional, Technical and Administrative Agreement 2021 (the proposed 2021 CFA PTA Agreement). 8 The applicant claims, in summary, that the proposed 2021 CFA PTA Agreement has not been validly or lawfully made by the CFA. The invalidity or unlawfulness, it is alleged, arises from the respondent acting beyond its statutory authority and/or in breach of a Secondment Agreement entered into between the applicant and the respondent and dated 31 October 2020, by including clause 29.1 of the proposed 2021 CFA PTA Agreement. There are consequential claims that result, namely, that the proposed 2021 CFA PTA Agreement contains terms that are not permitted and that its approval by the relevant employees was not genuine, as required by s 188 of the FW Act. 9 Some of the relevant background to the underlying dispute between the applicant and the respondent, and some of the relevant statutory and other provisions, are set out in United Firefighters' Union of Australia v Country Fire Authority [2022] FCA 727 at [4]-[20] (Hespe J). 10 The applicant's claims have been articulated in a proposed statement of claim filed on 26 August 2022 pursuant to the direction previously made by the court. 11 Relevantly for present purposes, by an amended originating application dated 12 September 2022, the applicant seeks, among other declarations, the following: 3. A declaration pursuant to sections 562 and 564 of the FW Act that it is in breach of an agreement dated 31 October 2020 (the Secondment Agreement) made by the CFA, the Chief Officer of the CFA, Fire Rescue Victoria (FRV) and [the] Fire Rescue Commissioner pursuant to sections 25B and 25C of the Fire Rescue Victorian [sic] Act 1958 (Vic) (FRV Act), for CFA to make or propose to make an enterprise agreement under Part 2-4 of the FW Act with its employees in the form or to the effect of the [proposed] PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the proposed PTA Agreement. …. 5. A declaration pursuant to sections 562 and 564 of the FW Act that incident management work identified in cl 29.1 of the [proposed] PTA Agreement, including the roles of Incident Controller, Deputy Incident Controller, Operations Officer and Deputy Operations Officer, is work that may only be performed by employees of FRV. 6. Further or in the alternative, a declaration in the accrued jurisdiction of the Court, that incident management work identified in cl 29.1 of the [proposed] PTA Agreement, including the roles of Incident Controller, Deputy Incident Controller, Operations Officer and Deputy Operations Officer, is work that may only be performed by employees of FRV. 12 In substance, it was contended by the applicant that there are the following jurisdictional questions that are more conveniently and expeditiously to be determined by this court before the Commission embarks upon the approval process provided for in Part 2-4 of the FW Act: (1) Has the respondent complied with its obligations under the Fire Rescue Victoria Act 1958 (Vic) or the Secondment Agreement between the respondent for the one part and Fire Rescue Victoria and the Fire Rescue Commissioner for the other part dated 31 October 2020? (2) If not, whether that has affected the validity of the agreement yet to be approved by the Commission? 13 The respondent has also provided a draft defence, although it is not necessary to go to it for present purposes. 14 For the purposes of this interlocutory application only, the respondent accepts that this court has jurisdiction to determine the substantive claims brought against it and does not seek either to dispute the facts alleged. It reserves its right to dispute both at any subsequent hearing.

The parties' submissions 15 The applicant's written submissions in support of the expedited hearing were in these terms: 63. The UFU seeks an order that the hearing of the order be expedited. 64. On 11 July 2022, the CFA applied to the Fair Work Commission for the approval of the [proposed] 2021 CFA PTA Agreement. This approval proceeding is currently before the Commission. 65. On 18 July 2022, the UFU filed a declaration opposing the approval of the [proposed] 2021 CFA PTA Agreement. 66. On 26 July 2022 Masson DP conducted a mention of the approval proceeding during which the UFU sought a deferral of the approval proceeding pending consideration of the issues by this Court. Deputy President Masson declined to stay the approval proceeding noting that the parties may wish to make fresh applications in relation to this issue and made directions to progress the matter for determination. 67. The approval proceeding is now listed for hearing on 11 October 2022. 68. To the extent that the issues in this proceeding and those to be litigated in the approval proceeding in the Commission may overlap, there is a real risk of inconsistent findings arising from the separate proceedings creating unsatisfactory uncertainty and confusion. 16 The respondent submitted, first, that the proceeding brought by the applicant is hypothetical and premature, in circumstances where the proposed 2021 CFA PTA Agreement is yet to be approved by the Commission, and where the issues in the proceeding are the same issues that will necessarily be raised at the approval proceeding currently listed before the Commission on 11 October 2022. 17 Secondly, the respondent said that the applicant's concern about the risk of inconsistent findings arising from separate proceedings, and the applicant's suggestion that the Commission might adjourn the approval application if this court were to expedite the hearing of the proceeding here, are misplaced for reasons which included the following: (a) the timing of the application for expedition (i.e., prior to the approval of the [proposed] 2021 CFA PTA Agreement) carries with it the necessary corollary that the Court will opine on the lawfulness of an agreement that may never operate; (b) the role of the [Fair Work Commission (FWC)] in determining whether to approve an agreement is not to conclusively determine the legal issues that the UFU raises in this proceeding, but rather to determine whether or not it is satisfied of the statutory prerequisites for approval. Those states of satisfaction involve applying evaluative judgment taking into account a range of other criteria. If it is not so satisfied, the FWC is required to consider further matters: (i) where it is not satisfied that the Agreement has been genuinely agreed, whether it would have been so but for minor procedural or technical errors (under section 188(2) of the FW Act). This in turn calls for the application of evaluative judgment; and (ii) to the extent it holds residual concerns that the Agreement does not meet the approval requirements under ss 186 and 187, whether it is satisfied that its concerns can be addressed by any undertaking proffered pursuant to s 190 of the FW Act (itself requiring evaluative judgment and compliance with several further requirements, including seeking the views of other bargaining representatives). (c) as can be seen from the foregoing, the scheme of Part 2-4 of the FW Act places the FWC's evaluative judgment - by way of a series of cascading and in some cases interdependent states of satisfaction - at the centre of the approval process. The FWC is the expert tribunal that Parliament has entrusted with the task of applying those statutory tests and determining whether there is a validly made enterprise agreement that meets the requirements set out in the FW Act and should be approved. The UFU seeks to sidestep that process - and that tribunal - by asking this Court to pre-emptively (and conclusively) determine particular issues which are inputs into, but not determinative of, those states of satisfaction … (d) the contention that the [proposed] 2021 CFA PTA Agreement is not about permitted matters because it does not pertain to the relationship between CFA and the employees who will be covered by it is not a reason to order expedition … [because] [i]f there are terms of the [proposed] 2021 CFA PTA Agreement that are not about permitted matters, such terms will have no effect to that extent … (e) the question of whether or not the [proposed] 2021 CFA PTA Agreement was genuinely agreed for the purposes of s 186(2)(a) of the FW Act is not a standalone jurisdictional fact: it arises only to the extent that the FWC forms a state of satisfaction about that fact. In advance of the FWC forming any such state of satisfaction, there is no presently existing justiciable controversy on that question …

Applicable principles 18 The parties did not dispute that a single judge of the court may make an order for the expedited hearing of an appeal in an appropriate case. 19 There was no dispute as to the relevant principles governing an application for expedition. The discretion is a broad one, but an order will not be granted unless the court is satisfied that it is in the interests of justice to do so. 20 There are a variety of factors which may be taken into account on the making of an application such as this. The general principles were conveniently summarised by Kenny J in Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority [2014] FCA 1090 at [19]-[22] as follows: The factors falling for consideration in the exercise of the Court's discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing … Other factors relevant to the Court's exercise of discretion relate to the parties' own conduct. Thus, the Court may consider whether the applicant for an expedited hearing order has proceeded with due speed prior to the date of the expedition application. The fact that a respondent does not oppose an application for expedition is also relevant. The Court will also bear in mind the interests of other litigants in other cases and balance the likely consequences of refusing an order for expedition against any adverse effect on the parties to other appeals if the order is made … Moreover, regard must also be had to s 37M of the Federal Court Act in the application and interpretation of s 25(2B)(c) of that Act and r 36.11 of the Rules. Plainly enough, however, the above-mentioned considerations are not the only considerations relevant to the Court's exercise of discretion. Other factors will be relevant, depending on the nature and circumstances of the case … Further, the weight to be given to any particular consideration will also vary depending on the circumstances of the individual case. (Citations omitted.) 21 These principles are equally applicable in circumstances where a party seeks an expedited hearing at first instance. See, by way of example, Ford, Re Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373 at [13] (O'Bryan J).

Consideration 22 In my view, the application for an expedited hearing of this proceeding should be refused, essentially for the reasons given by the respondent set out at [17]-[18] above. 23 An enterprise agreement is only effective if and when it is approved by the Commission. As the plurality explained in ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association (2017) 262 CLR 593 at 605 [34] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ): An enterprise agreement comes into operation in the sense of creating rights and obligations between an employer and employees in relation to the work performed under it only after it has been approved by the Commission. After that time the agreement applies to the employers and employees who are covered by it. 24 In circumstances where the proposed 2021 CFA PTA Agreement has not yet been approved, and may never be approved, it seems to me that it would not be an appropriate exercise of the discretion to order an expedited hearing in respect of such a proposed agreement. In my view, that is reason alone, in the circumstances of this case, not to exercise the discretion to order an expedited hearing. 25 This is not the occasion to recite in detail the requirements and discretions imposed on the Commission by the FW Act. A convenient summary of them is contained in the decision of the Full Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 at 534-536 [23]-[33] (Bromberg, Katzmann and O'Callaghan JJ). 26 It is sufficient to say that each of the allegations made in the proposed statement of claim against the respondent is a matter that the Commission must or may take into account in deciding whether to approve the proposed 2021 CFA PTA Agreement. Indeed, that part of the proposed statement of claim that deals with the allegation that the agreement was not genuinely agreed to by the employees covered by the agreement says, in terms, that "the Commission must be satisfied that the [proposed] 2021 CFA PTA Agreement has been genuinely agreed to by employees covered by [it] before approving [it]". 27 Questions of whether the agreement has been genuinely agreed to, and the like, are questions that are in the first instance the province of the Commission, not this court. As the respondent submitted, the Commission is the tribunal that Parliament has entrusted with the task of applying the various statutory tests and evaluative assessments contained in the scheme of Part 2-4 of the FW Act, and determining whether an enterprise agreement has been validly made, and if so, whether it should be approved. 28 As Bromberg J said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at 190 [74]-[75] (passages quoted by Flick J at first instance in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266; (2017) 270 IR 410 at 447 [119]): As is, I think, evident from the foregoing, the Commission's role in relation to the scrutiny of [enterprise] agreements as at the time of approval is immense. The legislature has invested in the Commission great responsibility in ensuring that the process of making the agreement has been satisfactory and that its content complies with the detailed requirements of the Act. In some cases that process of assessment is fairly formulaic or straightforward (e.g., whether there is a nominal expiry date not later than 4 years after the day of approval). In many cases, however, the process of assessment calls for value judgment: would the employees be better off overall?; were "reasonable steps" taken in relation to the provision of information to employees?; was the explanation of the agreement appropriate, taking into account the circumstances and needs of employees?; is the effect of a term "discriminatory," and if so to what extent?; were the employees "reasonably chosen"?; are there any reasons for doubting the genuineness of agreement?; do any terms permit contravention of (e.g.) the freedom of association provisions?; how do the arrangements for shiftworkers and pieceworkers compare with applicable awards? These are difficult questions, upon which reasonable minds might sometimes (perhaps often) differ. The legislature's intent was evidently that they be dealt with - for the benefit of employees and employers both - by independent specialists and experts, through the process of Commission scrutiny … 29 Further, as the Full Court said in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 at 548 [106]: Besides, it should not be supposed that Parliament intended that the validity of an enterprise agreement should be open to collateral attack on the basis that the objective existence of the facts required by s 180(5) cannot be established. Parliament should be presumed not to have intended public inconvenience of the kind that would arise if the existence of the pre-approval requirements the subject of the satisfaction that the Commission is required to form in order to approve an agreement was a jurisdictional fact amenable to authoritative determination by a court … 30 It seems to me, with great respect to counsel who contended otherwise, and to use an American football expression, that the applicant seeks to do an "end run" around the Commission's important agreement approval process in seeking, in effect, to have its proceeding, and the separate legal propositions it seeks to agitate, heard before the necessary anterior step (Commission approval or not) has taken place. 31 In my view, those reasons are more than sufficient to dispense with the application, although, if it were necessary to say so, I would express my agreement with each of the other submissions pressed by the respondent and recited at [17]-[18] above. 32 In light of the fact that a little time was spent on the matter, I should add that, in my view, there is however no sufficient factual basis for the respondent's submission that the applicant delayed in bringing the application and that counted against its case for an expedited hearing. Accordingly, I have not taken any delay into account. 33 It was also submitted in oral submissions on behalf of the applicant that the approval application before the Commission will be more complicated if the legal questions identified by the applicant are not resolved first, and that some degree of confusion may ensue if the court were ultimately to come to a different conclusion than that reached by the Commission, presumably if it were to find relevant jurisdictional error. But even conceding that such consequences are possible, it seems to me they are simply in the nature of things. They are not factors that should weigh in the balance in the exercise of the discretion sought to be invoked here. 34 For those reasons, the applicant's application for an order that the hearing of this proceeding be expedited is refused. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.