United Firefighters' Union of Australia v Country Fire Authority

1. The applicant's application for an expedited hearing be refused.
2. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.