s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Whether statutory declaration filed after hearing may be admitted.

• [1] This is a procedural decision in relation to an application made by Fire Rescue Victoria (FRV) for the admission into evidence in the substantive proceedings before me of a statutory declaration by David Catanese, solicitor dated 19 September 2022 declared on behalf of his client the FRV. The statutory declaration is referred to in this decision as the September Statutory Declaration. The applicant in this matter, the United Firefighters' Union (UFU) objects to the declaration being received by the Commission. The Victorian Minister for Emergency Services (the Minister) who was granted leave by me to intervene in the substantive proceedings, supports its introduction to the evidence.

• [2] The context of application to admit the September Statutory Declaration is an arbitration being conducted over an alleged dispute brought before the Commission by the UFU relating to the establishment of a firefighters registration board. The UFU's application to the Commission is made pursuant to s.739 of the Fair Work Act 2009 (the FW Act).

• [3] The Minister was granted permission to intervene at the start of the hearing on 29 August 2022 and my reasons for doing so are recorded in transcript.[1] I have reviewed those reasons and do not add to them.

• [4] Through its originating application the UFU seeks determination by the Commission of several questions about the formation of the Firefighters Registration Board as well as an Order requiring the FRV to enter into a service contract with Victorian Professional Career Firefighters Registration Board Ltd a company established for the purposes of undertaking the functions of a Firefighters Registration Board. That entity is referred to in this decision as the Corporate Registration Board. Amongst other things the questions and proposed order deal with the proposition that the FRV should enter into a service contract with the Corporate Registration Board (referred to as the Service Contract). Arbitration of the dispute was the subject of hearings before me on Monday 29 August and Tuesday 30 August 2022.

• [5] In the course of the August proceedings evidence and submissions were received, including a statutory declaration signed by the FRV's solicitor, Mr Catanese, which attested to correspondence having been received by the FRV from Jacqueline Symes MP, the Victorian Attorney General and Minister for Emergency Services, expressing concerns about the Corporate Registration Board. This statutory declaration is dated 24 August 2022, referred to as the August Statutory Declaration.

• [6] At the conclusion of the proceedings on 30 August 2022 the UFU was given an opportunity to file written submissions responding to the oral submissions of the Minister with those submissions to be provided to the Commission after transcript in the proceedings was made available to the parties. The UFU's response submissions were provided on 26 September 2022.

• [7] On 19 September 2022 Hall and Wilcox, solicitors for the FRV, sent an email to the Commission attaching for filing the September Statutory Declaration. The declaration is short, attaching correspondence from Jacqueline Symes MP, the Victorian Attorney General and Minister for Emergency Services to Mr Gavin Freeman the Acting Fire Rescue Commissioner. The Minister's correspondence expresses concerns she holds in respect of the proceedings before the Commission and a purported ministerial direction to FRV made under the Fire Rescue Victoria Act 1958 (Vic) (the FRV Act). The correspondence and direction are each dated 19 September 2022. The direction comprises two parts; the first of which directs the FRV not to enter into the proposed agreement with the Corporate Registration Board. The second part of the direction requires the FRV to advise the Commission about the terms and effect of the Minister's direction, consistent with what is said by the Minister in her correspondence, that it "is critical that FRV, as a model litigant, ensures that the FWC has all relevant material before it in the current proceeding. This includes that FRV is not authorised to enter into the proposed Services Agreement".

• [8] Having received the September Statutory Declaration for filing my initial advice to the parties was that I was prepared to accept the declaration since it appeared to set out essentially factual matters, albeit that the motives and purpose of the direction contained therein may be contentious. The UFU subsequently advised the Commission that it was not prepared to accept the September Statutory Declaration be filed and brought within the evidence before the Commission for determination of its application and wished to be heard on the subject. A hearing for that purpose was held on Wednesday, 5 October 2022.

• [9] In submissions to me, senior counsel for the FRV, Mr M Harding SC, advocated that the September Statutory Declaration should be admitted. The Commission is empowered to receive the declaration pursuant to the wide authority given to the Commission under the FW Act's s.590 which permits the Commission inform itself in relation to any matter before it in such manner as it considers appropriate. The FRV submitted that the direction given by the Minister goes to matters of vital significance as to the nature of the dispute before the Commission and how it should be resolved. The Minister's direction indicated change to a substantial fact, with the FRV no longer being capable of entering into the Service Contract with the Corporate Registration Board. The FRV would now be precluded from entering into the Service Contract both by the Minister's direction and statute (namely the FRV Act).

• [10] Mr C O'Grady KC, intervening for the Minister endorsed the position put forward by the FRV, advocating that the September Statutory Declaration should be received into the evidence before the Commission. It informs the Commission of a material change in circumstances with there no longer being capacity for the FRV to enter into the Service Contract with it being important that the Commission is informed of the change in circumstances. In the alternative, and to the extent that the Commission has a discretion in relation to the substantive dispute, the capacity of the FRV to enter into the Service Contract is a matter relevant to the exercise of that discretion and it is important to the Commission to be informed about the FRV's capacity.

• [11] The FRV's present capacity was now different to that which it had informed the Commission on 30 August 2022. Not only did the FW Act's s.590 provide authority to the Commission to inform itself in such manner as it considers appropriate, but the Commission would also be justified in admitting the September Statutory Declaration for reasons of equity, good conscience, and the merits of the matter (FW Act s.578 (b)). Further, the fact that the Commission is not bound by the rules of evidence and procedure in relation to matter before it (FW Act s.591) should be taken into account. Pertinent to the weight to be given to the September Statutory Declaration, should it be admitted the Minister submitted that she had been given leave to appear in the substantive proceedings on 29 and 30 August 2022 and at the time made it clear that in her opinion ministerial consent was required for agreement to be given by the FRV to enter into a contract of some type with the Corporate Registration Board. It was also argued, for the first time, that the Commission may have no power to make an order for the FRV to enter into a contract with a third party, not being a party to the Commission's proceedings.

• [12] Mr H Borenstein KC, appearing with Mr B Bromberg of Counsel for the UFU argued that what was being attempted was to delay determination of the substantive application with the submission of material which is not relevant to the exercise of the Commission's function, being the determination of a private arbitration.

• [13] The dispute agitated by his client had been submitted to the Commission under the terms of a valid enterprise agreement to which the Minister is not a party. The effect of her direction and the request for the September Statutory Declaration to be admitted into evidence should be seen as the Minister seeking to take over and subvert the proceedings before the Commission. Noting that the Commission as presently constituted is charged with resolving the dispute by means of a private arbitration, the UFU submitted that there is a considerable level of agreement between the disputing parties, as evidenced by the material submitted to the Commission in the substantive hearings.

• [14] The UFU argued questions must arise about the validity of the direction given by the Minister with the FRV Act making the FRV and the Fire Rescue Commissioner subject only to the general direction and control of the Minister, and with the Minister's capacity to give directions being subject to that and other limitations (FRV Act, s.8). To the extent that s.25A of the FRV Act was relied upon by the Minister for her direction, its proper construction of the provision had not been properly considered by her.

• [15] If the September Statutory Declaration is admitted there will be a need for the Commission to assess whether the Minister's direction is valid, and the Commission should be on notice that in order to test such proposition the UFU would make application to cross-examine the Minister on matters pertaining to the direction. Further, if the September Statutory Declaration is admitted it would be necessary for the union to reconsider the form of relief it seeks in the substantive proceedings. In this regard the UFU notes that the relief sought by the union was heavily framed through the considerable conciliation proceedings which came before the arbitration, chaired by me. The nature of the proposed Service Contract and the FRV's engagement with that agreement had been at least partially a product of the conciliation. In the event that the September Statutory Declaration was admitted, and the UFU was forced to reconsider the form of relief, it may be that the dispute could be resolved through something other than a services contract.

• [16] Before turning to the question of whether the September Statutory Declaration should be admitted, some context about the wider dispute before the Commission is required:

• The UFU lodged an application pertaining to this dispute in the Commission on 29 March 2022 after which conciliation ensued.

• The UFU submissions in the substantive proceedings note that in response to it from the FRV on 3 May 2022 the FRV "committed to continuing to engage with the UFU about the establishment of a firefighters registration board" but did not commit to entering into an agreement at that time with the then proposed company.

• The Victorian Professional Career Firefighters Registration Board Ltd was registered as a company on 4 May 2022.

• Also on 4 May 2022 solicitors for the FRV provided the UFU with a pro forma service contract; "without conceding the need for such a contract, the UFU agreed to negotiate for a settlement of the dispute within the framework of a services contract" and "[s]ince that date the parties have negotiated the terms of an agreement from the starting point of FRV's standard form contract". The services contract sets out what are intended to be the mutual arrangements between FRV and the Corporate Registration Board.

• The UFU seeks through the arbitration of the substantive dispute that the Commission answer two questions as well as that it grant an order;

"Question 1 - Whether or not the UFU should be included as:

b. a party to the consultation process under the Service Contract?

c. a party to the dispute resolution process under the Service Contract?

d. a party to a termination process, which requires agreement from both the FRV and the UFU to initiate the termination of the Service Contract?

Question 2 - Whether Schedule 4 of the Service Contract should be amended to reflect the VPCFRB's Constitution."

Order that FRV enter into a contract with the Victorian Professional Firefighters Registration Board Limited ACN 659 177 992 and the UFU in the form and to the effect of the proposed service contract, subject to completion of the details in Schedules 1 and 3 (which is attached as Attachment A to these orders), for the provision by the company of the services of registering qualified firefighters for FRV and such other services as are provided for in the contract."

• The Commission is yet to determine these matters.

• [17] Part of the factual base surrounding the dispute are two matters relating to the establishment of a firefighters registration board. First, such a board has been established on interim basis within the FRV, with the Minister asserting in correspondence attached to the August Statutory Declaration that such is currently operating. Second, the FRV Act deals with the creation of a Firefighters Registration Board (FRV Act ss.147 - 159) with the Governor-in-Council empowered to appoint members and make Regulations for its purpose. The scope of the statutory board though is limited, with its registration functions surrounding the registration of people to be seconded from the FRV to the Country Fire Authority (FRV Act s.148).

• [18] I turn now to consider whether the September Statutory Declaration should be admitted into the evidence.

• [19] The submissions that the Commission is not bound by the rules of evidence and procedure; is empowered to inform itself in such manner as it considers appropriate; and in performing its functions or exercising its powers must take into account the objects of the Act and equity, good conscience and the merits of the matter, require resolution through the duty for the Commission to act judicially, with that duty to be applied in the context of the particular circumstances of the case, including the nature of representation and the nature of the matter before the Commission.

• [20] In support of admission of the September Statutory Declaration are some the matters referred to by the FRV and the Minister and, in particular, those directed at the FRV's capacity to enter into a Service Contract with the Corporate Registration Board. A failure to admit the document allows the possibility that the Commission will not be making its decision with all material facts before it.

• [21] The Minister's Direction makes plain that FRV may not enter into the proposed Service Contract with the Corporate Registration Board. To do so would be contrary to the Minister's direction should it be validly made. To that extent the direction potentially moves FRV's response beyond that advanced by it on 30 August 2022, with a pointed disapproval on the part of the Minister moved to an explicit direction. Potentially, and subject to the nature of its decision and any attendant exercise of discretion should the Commission find in the UFU's favour and make the order it seeks, the Commission may place the FRV in the invidious position of either having to comply with the Commission's order but not with its Minister's direction or vice versa.

• [22] The nature of a ministerial direction is that it is important and substantial, immediately requiring action on the part of a statutory agency of the State and in time requiring public accountability from the agency and its senior officers to the State's public administration and governance authorities. To add to the gravitas of the matter any such direction must be published in the Government Gazette and on the FRV's website (FRV Act s.8(7)).

• [23] Against the submission of the September Statutory Declaration are several matters.

• [24] The matter before the Commission is in the nature of a private arbitration, involving two relatively simple and explicit clauses of an enterprise agreement, being identical terms in the two operative divisions of the agreement, with the terms providing merely that "FRV endorses the establishment of a firefighters registration board. FRV will demonstrate this by letter of endorsement to the UFU".[2] Bargaining concluded the agreement, and the consequential affirmative vote of employees made it. Disputes arising under the agreement are not usually matters that attract or require for resolution the views of an external party even one which sits above the employer in a public governance and accountability framework.

• [25] Further, the substantive matter has been on foot for many months, since March 2022. Filing directions for arbitration were issued by me in 23 June 2022 and the notice of listing for 29 and 30 August 2022 was circulated on 24 August 2022. The Minister's interest in the matter was advised to the Commission on the same morning the arbitration was to commence. The Minister was granted intervention by me over the objections of the UFU and was represented in the hearing by senior and junior counsel and instructing solicitors. The Minister provided comprehensive written and oral submissions which laid plain her objection to the UFU's proposed relief, and especially its proposed order. The Minister did not purport to direct that the FRV may not sign the Services Contract until the date of the direction, 19 September 2022, two-and-a-half weeks after the hearing concluded and shortly before the UFU response submissions were due to be filed.

• [26] Those matters, of case management and the apparent position of the Minister are significant.

• [27] This is not a matter that has been sprung on the parties at short notice or in an environment in which junior non-legal advocates have somehow stumbled into a matter of complexity. Instead, the Commission has conducted high-level conciliation over many months and then programmed the matter for arbitration when it was apparent the dispute would not resolve. The Commission is entitled to presume from these processes both that the representatives appearing are properly instructed and have the authority they profess and that its case management processes will be properly adhered to; not only for reason of the tribunal's resourcing, but for reason of courtesy and certainty to the other parties involved.

• [28] When the hearing of the matter concluded on 30 August 2022 it did so on the basis that the UFU would have the opportunity to provide written submissions in response to the Minister's submissions in the hearing once the transcript became available.

• Provided the August Statutory Declaration in its material, the substance of which is the Minister's 17 August 2022 letter to the FRV which states she does not consent to the FRV entering into the Service Contract and in doing so provides a short explanation of why she does not consent. The Minister also advises she holds the view that consent is required for the FRV to enter into the Service Contract for reason of s.25A of the FRV Act.

• • Stated in the hearing that it did not oppose the UFU's amended order or affirmative answers to the questions proposed by the UFU. It also submitted that the agreement's two clauses dealing with the firefighters registration board pertained to the employment relationship.[3]

• [30] Also before conclusion of the hearing the Minister had submitted:

• • The proposed Service Contract cannot be lawfully entered into and had expressed that view to the FRV which in turn had informed the Commission of the view;[4]

• • The history of the formation of the Corporate Registration Board supported the Minister's concern that the FRV has been participating in the formation of an entity which in turn engaged the obligation in s.25A(3)(b) of the FRV Act "requiring her permission for FRV to engage in that process, which permission has been denied";[5]

• • In the absence of ministerial consent, the FRV could not enter into the Service Contract.[6]

• • The FRV is obligated not to sign the Service Contract and to do so "would be acting beyond power and, in effect, ultra vires".[7]

• [31] The Ministerial Direction makes plain that FRV may not enter into the proposed Service Contract with the Corporate Registration Board. To do so would be contrary to the Ministerial Direction should it be validly made.

• [32] After considering all relevant factors I am not satisfied that leave should be granted to the FRV for admission of the September Statutory Declaration into the evidence. To do so would be contrary to the Commission's case management processes for the orderly provision of relevant evidence and submissions put in place on 23 June 2022, noting as well that the Minister's intervention in the proceedings itself did not conform with those directions. The Ministerial Direction contains information that came into being after the original hearings with the timing of the creation of that information presumably in the Minister's hands or those who advise her. It is not said that its contents were not able to be legitimately created and communicated at a time earlier than they were. Although there is importance to the probative value of the Ministerial Direction it cannot be said that such is vital or that its contents, if admitted, will lead to a different result to the matter in arbitration. The direction is blunt; the FRV may not "enter into the proposed agreement" with the Corporate Registration Board. However, that view was stated firmly in the 29 and 30 August 2022 hearings with it being openly stated that the agreement may not be signed because to do so would be beyond power;

"THE COMMISSIONER: Can I just ask this question, please, about that submission? I understand the basis upon which it's put and I understand you to say, in respect of these proceedings, that the consent is not given and thereby the order should not be made by the Commission. But then what does that mean, in respect of the next step within the FRV? Are they obligated not to sign the document?

MR O'GRADY: I have to, of course, be careful about this because, as I think I mentioned yesterday, it does get very complicated, Commissioner, in my submission, where one has the interaction between Commonwealth laws and state laws, but we would submit that for FRV to sign the agreement, it would be acting beyond power and, in effect, ultra vires"[8]

• [33] While plainly not a formal direction the extract above is just as plainly an intimation in a public forum from the responsible Minister of State to a statutory agency directly reporting to them of what must not be done. To that extent the Ministerial Direction does not have great probative value to the matter presently before the Commission. While it potentially adds to the circumstances involved, it does not define them.

• [34] I also note the factors alluded to by the UFU if the material were admitted, in the nature of the further evidence that would be required, and potentially from the Minister, as well as the reconsideration that may be required of the relief to be sought from the Commission. I struggle to see these are real factors.

• [35] I doubt there would be much need for further evidence on the subject of the Ministerial Direction, as the document speaks for itself. While there may be some political, industrial or other collateral purpose for seeking to elicit oral evidence from the Minister I doubt there would be much of relevance to be drawn from her in relation to these proceedings. She holds a view; she has stated it publicly; and she has directed a statutory agency within her control. Whether those views are reasonably held or are within her power to direct are more likely matters that require determination in places other than the Commission. I struggle also to see why the relief proposed by the UFU might need amendment if the September Statutory Declaration is admitted since it has only the probative value to which I have referred. Would anything especially change about the character of the case before me or the means by which it is decided merely because the document is admitted when it echoes views mostly already expressed? In any event the matter of relief is in the first instance a matter for the Applicant, before it turns to the Commission for determination.

• [36] However, the possibility these matters may require determination or potentially may require further evidence thus markedly prolonging the nature of the proceedings before me is highly undesirable and is a factor that must be considered as weighing against admission of the September Statutory Declaration.

• [37] For the reasons set out above admission of the September Statutory Declaration is refused and the Commission's decision in the substantive matter is now reserved.

[2] Division A, Clause 42; Division B, Clause 49.

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