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[2022] FCA 1116
Federal Court of Australia
2022-09-21
Hespe J, O'Callaghan J
Original judgment source is linked above.
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.
The joinder rule and applicable principles 10 Rule 9.05(1) provides as follows: (1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: (a) ought to have been joined as a party to the proceeding; or (b) is a person: (i) whose cooperation might be required to enforce a judgment; or (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 11 The applicant relies on the italicised parts of the rule set out above. 12 The applicant's written submission in support of joinder was as follows: Rule 9.05(1)(a) 55. For the reasons set out in [paragraphs 57 to 61] of the proposed Statement of Claim, FRV will be affected by any order or declaration made by the Court and ought to have been joined as a party so that it may be heard in relation to its interests in the matters raised in this proceeding. Rule 9.05(1)(b)(i) 56. If FRV is not a party to the proceeding and bound by the Court's orders about the operation and effect of the Secondment Agreement, difficulties will arise in their implementation if the CFA succeeds and the FRV takes issue with the CFA's actions in relation to the incident management work. Rule 9.05(1)(b)(ii) 57. FRV is a party whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined. 58. The UFU seeks declaratory relief as to the effect of the Secondment Agreement. FRV is a party to that agreement. 59. Clearly, the finality of any determination of the issues in dispute about the Secondment Agreement will be eroded if all the parties to that Agreement are not bound by that determination. 60. Particularly is that so where the determination directly impacts the work which the Secondment Agreement provides is to be done by FRV's employees. For example, clause 3.1 of the Secondment Agreement which provides that Operational Support may only be provided by FRV employees. The CFA seeks to be able to direct such work to its PTA staff. 61. The application before the Court requires the proper construction of the Secondment Agreement to determine whether incident management work identified in cl 29.1 of the [proposed] 2021 CFA PTA Agreement, including roles of Incident Controller, Deputy Incident Controller, Operations Officer and Deputy Operations Officer: a. cannot be performed by employees of the CFA; and b. may only be performed by employees of FRV. 62. Unless the FRV is party to the proceeding and therefore bound by any orders of the Court, FRV will remain free to assert its claim to have its Secondees be the only ones to perform the Operational Support which includes the incident management work in clause 29.1. 13 In the course of exchanges in oral argument between me and Mr Borenstein, it became clear that the applicant's case for joinder of FRV is predicated on the applicant being unsuccessful in its claim for declaratory relief: MR BORENSTEIN: No, but we seek a declaration as to whether or not CFA is permitted to make an agreement which contains clause 29.1 and in subsequent orders whether they can perform that work, and if your Honour finds against us and if your Honour says, yes, they can do that, that order does impact on FRV, and that's what we're addressing. If we are successful, then we all go home with smiles on our faces and FRV doesn't have to worry, but we have to look at the situation that we may not be successful, and it's in those circumstances that FRV would be affected. HIS HONOUR: So FRV is only affected, you say, if the declaration isn't made. MR BORENSTEIN: And if your Honour makes an order - yes, and if your Honour declines to make the order which we seek in paragraphs 5 and 6 … which are the declarations as to who can perform the work. HIS HONOUR: It seems a bit odd to say that a party will be affected if the court declines to grant the declaratory relief sought. MR BORENSTEIN: Yes. Yes. And it's in those circumstances that we would say that the party that would be affected ought to be here to be heard … … HIS HONOUR: … So - but here you say the interest of the corporation that is not a party to the proceeding would be affected if you fail in seeking the declaratory relief … Is that how you put it? MR BORENSTEIN: We say that, because of its role under the secondment agreement, the FRV would be affected by the decision of the court, which would be to refuse the relief because the court would effectively be ruling on the permissibility of the CFA to carry out this work which is in contention and which is presently being performed by FRV, and because of that potential impact on FRV, we say it's a matter of - well, it comes within the provisions of the rule and also consistent with the judgment of the Full Court in [News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524-525], that it ought to be a party and if for no other reason than to allow it to be heard on the claim that's made and the relief that the court might grant. 14 Mr CB O'Grady KC, who appeared with Mr ARM Pollock of counsel for the respondent, submitted that FRV should not be joined as a respondent "because the [applicant] is not a party to the [S]econdment [A]greement … it is … a third party seeking a declaration as to a breach of a contract, in effect, that it's not a party to in circumstances where the other party to the agreement, namely FRV, has not sought to be joined to these proceedings". Mr O'Grady also put his submission in that regard as follows: [W]e are in the extraordinary position of a non-party to an agreement seeking a declaration as to its terms and then seeking to drag in other parties to the agreement on the basis that they need to have their claims protected. 15 The respondent also relied on a dispute resolution provision in the Secondment Agreement, which provides as follows: 11. Dispute Resolution 11.1 Dispute Notice (a) A Party claiming that a dispute or disagreement has arisen under this Agreement must give a Dispute Notice to the other Party, specifying the nature of the dispute. (b) A Dispute Notice may be withdrawn at any time by the Party that gave the Dispute Notice. 11.2 Good Faith Discussions (a) Within 10 Business Days of the date of issue of the Dispute Notice the Parties must enter into good faith discussions in an attempt to resolve the issues between them. (b) Should discussion in clause 11.2(a) fail to resolve the dispute, the matter should be referred to the Chief Executive Officer, Chief Officer, CFA and the Fire Rescue Commissioner, FRV. The Chief Executive Officer and the Fire Rescue Commissioner will discuss the matter and resolve the dispute which may result in an amendment to this Agreement. 11.3 Enforcement of obligations (a) If the Dispute is not resolved within 28 days after the dispute is referred to the Chief Executive Officer and Chief Officer, CFA and the Fire Rescue Commissioner, FRV in accordance with cl 11.2(b), the parties will refer the dispute to an agreed arbitrator whose decision will be binding[.] (b) A Party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in clauses 11.1 and 11.2, unless the party seeks injunctive or other interlocutory relief. … 16 The respondent contended that the applicant overlooks that: (a) neither party to the Secondment Agreement seeks any declaratory relief; (b) FRV and the CFA have agreed, in cl 11 of the Secondment Agreement, how disputes arising under it are to be dealt with, and pursuant to that clause, FRV is expressly precluded from bringing court proceedings (other than a proceeding seeking an interlocutory injunction) in respect of any such dispute until those procedures set out in cl 11 are complied with; and (c) FRV has not sought to invoke the dispute resolution process in cl 11 of the Secondment Agreement in respect of the matters raised by the UFU. 17 The respondent also took issue with the applicant's submission that "unless the FRV is party to the proceeding and therefore bound by any orders of the Court, FRV will remain free to assert its claim to have its Secondees be the only ones to perform the Operational Support which includes the incident management work in clause 29.1". The respondent contended that that submission "fails to have regard to the fact that FRV has made no such claim, and would be precluded from pursuing any such claim unless and until the dispute process in clause 11 of the Secondment Agreement has been complied with". 18 Both parties relied on these passages from the decision of the Full Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524-525 (Lockhart, von Doussa and Sackville JJ), and accepted that the principles are applicable to the current Federal Court Rules: An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside. … There are some classes of case where the ascertainment of the necessary parties who "ought to have been joined" is not difficult. Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest … Where the subject matter of the proceedings is not of this kind, the ascertainment of necessary parties who ought to have been joined may be more difficult. In our opinion, the question should be decided according to the test proposed by Lord Diplock [in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56]. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent … The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential. Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. Where the question arises after final orders have been made in the proceedings, the inquiry must be directed to the orders actually made, or which, on appeal it is contended should be made …
Consideration 19 In my view, the application to join FRV should be refused. 20 As the passages from the joint judgment in News Ltd quoted above make clear: (1) The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. (2) The requirement that a third party's rights against or liability to any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. (3) The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential. (4) Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. (5) Where the question arises after final orders have been made in the proceedings, the inquiry must be directed to the orders actually made. 21 Here, as I have explained, the case for joinder is premised on the applicant's claims for declaratory relief being dismissed, which seems to me an unpromising starting point for such an application. 22 Secondly, as the respondent submitted, the applicant is not a party to the Secondment Agreement, but nonetheless seeks a declaration that the respondent is in breach of it, despite the fact that the other party to the agreement (FRV) itself does not seek to be joined - and thus, it can safely be assumed, does not claim that the respondent is in breach. It thus seems to me that having regard to "the practical realities of the case", it is very difficult to see how there are any relevant rights or liabilities of FRV "which might be directly affected" in the event that the applicant's case against the respondent is dismissed. It is difficult even to see how its rights or liabilities might be "indirectly" or "consequentially" affected. 23 Taking point (5) in [20] above, and taking the applicant's premise that the proceeding fails, the only order that would actually be made is an order dismissing the proceeding. I fail to understand how such an order can be said relevantly to affect the rights of FRV, directly or otherwise. 24 I also do not accept the applicant's contention that "the finality of any determination of the issues in dispute about the Secondment Agreement will be eroded" if FRV is not joined. As I say, it can safely be assumed that FRV does not claim that the respondent is in breach of the Secondment Agreement. It seems to me that the possibility of FRV "assert[ing] its claim to have its Secondees be the only ones to perform the Operational Support which includes the incident management work in clause 29.1" is necessarily hypothetical. Putting it another way, as Sheppard J said in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd [1981] FCA 48; (1981) 58 FLR 384 at 386: The action is properly constituted as to parties and there is no person other than the [respondent] who is interested or concerned in the relief which is claimed. All matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon in the proceedings as they are presently constituted. 25 I do not, however, think that much turns on the cl 11 point contended for by the respondent. The fact that third party A is by contract with party B bound to arbitrate a dispute with B and not issue a proceeding in a court in respect of it, would not get in the way of the court making an order joining A to a proceeding between B and party C were it otherwise appropriate. 26 For those reasons, in my view, FRV is not a party which "ought to have been joined as a party to the proceeding", or a party "whose cooperation might be required to enforce a judgment", or "whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined", within the meaning of r 9.05(1) of the Federal Court Rules. 27 For those reasons, the joinder application will be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.
United Firefighters' Union of Australia
Country Fire Authority