United Firefighters' Union of Australia v Country Fire Authority

1. The applicant's application for an order pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth) that Fire Rescue Victoria be joined as a respondent to this proceeding be dismissed.
2. The respondent's costs of the application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 By its interlocutory application dated 8 July 2022, the United Firefighters' Union of Australia (the UFU or the applicant) seeks an order pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth) that Fire Rescue Victoria (FRV) be joined as a respondent to this proceeding. 2 The background to this proceeding is set out in United Firefighters' Union of Australia v Country Fire Authority [2022] FCA 727 (Hespe J) and in United Firefighters' Union of Australia v Country Fire Authority (No 2) [2022] FCA 1079 (O'Callaghan J). 3 FRV is a body corporate with perpetual succession pursuant to s 6(3)(a) of the Fire Rescue Victoria Act 1958 (Vic) (FRV Act). 4 In his oral submissions, Mr H Borenstein KC, who appeared with Mr JC McKenna of counsel for the applicant, summarised what the applicant says is in issue in the proceeding along these lines. 5 The applicant seeks relief by way of declarations about the effect and operation of a "Secondment Agreement" entered into by the FRV and the respondent (the CFA or the respondent) pursuant to provisions of the FRV Act. 6 Mr Borenstein submitted that what he called the "fire services reforms" introduced by the Victorian Government in 2020 intended that all paid fire firefighters were to be employed by FRV. To that end, he submitted, the legislation provided for the transfer of employment of the paid firefighters who had previously been employed by the CFA to FRV, and that "under the legislation [FRV] was intended to be the source of labour for professional firefighting, both in the realm of [FRV], which is the metropolitan areas, and also in the regional areas under the aegis of CFA. And the [S]econdment [A]greement, which is provided for in sections 25E and 25C of the [FRV] Act, was intended to be an agreement under which FRV would provide on secondment the … professional firefighters, to work in the CFA operations". I was told that this secondment of professional firefighters from the CFA to the FRV has been occurring since 2020. 7 Mr Borenstein continued: [F]rom 2020 onwards, the CFA, although not employing the firefighters, have employed a cohort of employees called professional, technical and administrative [or PTA] employees. And the CFA, together with the employees, have negotiated … enterprise agreements under the [Fair Work Act 2009 (Cth)]. And the current enterprise agreement which applies to those employees employed by CFA is an agreement that was entered in 2020 and it continues in force. … And the 2020 [enterprise] agreement applies to those [PTA] employees. Now, in recent times, the CFA has been negotiating for a new agreement to replace the 2020 agreement to cover the employment of those PTA employees … The 2020 agreement contained a provision which prohibited … the CFA from requiring PTA employees to perform certain incident management functions [including firefighting]. … And there's a debate which we don't have to really worry about now about whether that's an operational function which should be carried out by firefighters or not but that's the - that clause was there from - in the 2020 [enterprise] agreement and remains in place until this new agreement is approved. The new agreement sought to - seeks to change that situation and to allow that cohort of staff to also carry out - to now also carry out those incident management functions and that has been the trigger for the controversy that's in the court. The contention which the applicant advances in the case is that the intent - or the proposal by CFA to have its PTA staff perform those incident management functions is contrary to the provisions of the legislation which was enacted in 2020, but additionally is contrary to the provisions of the [S]econdment [A]greement, and in the originating application the applicant seeks declarations about that. 8 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 [Fair Work Act 2009 (Cth) (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. 9 The applicant has filed and served a proposed statement of claim dated 26 August 2022. In so far as it concerns FRV, it provides as follows: 57 FRV is party to the Secondment Agreement. 58 FRV is the employer of the operational firefighters who presently carry out work performing [roles in Incident Management Teams (IMT Roles)] for the benefit of the CFA. 59 The performance of the IMT Roles referred to in the preceding paragraph by operational firefighters employed by FRV is done pursuant to the Secondment Agreement. 60 The performance of the IMT Roles referred to in the two preceding paragraphs by operational firefighters employed by FRV is covered by the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 and CFA is not covered by that agreement. 61 By reason of the matters in paragraphs 57 to 60 above, FRV will be affected by any order or declaration of the Court made in respect of: a. the proper effect of the Secondment Agreement; and b. the validity of the 2021 CFA PTA Agreement [that is, the proposed new enterprise agreement] in so far as it provides for CFA employees to perform IMT Roles.