United Firefighters' Union of Australia v Fire Rescue Victoria

Solicitor for the Applicant: Davies Lawyers

Counsel for the First Respondent: Ms RW Sweet KC with Mr M Garozzo

Counsel for the Second Respondent: The second respondent filed a submitting notice

Counsel for the Intervener: Mr CB O'Grady KC with Ms F Leoncio

BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA Applicant

AND: FIRE RESCUE VICTORIA First Respondent

FAIR WORK COMMISSION Second Respondent MINISTER FOR EMERGENCY SERVICES, VICTORIA Intervener

order made by: WHEELAHAN, RAPER AND DOWLING JJ DATE OF ORDER: 25 February 2025

1. The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The United Firefighters' Union of Australia and Fire Rescue Victoria have been unable to agree upon terms of an enterprise agreement to replace the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020. As a result, the Union made an application to the Fair Work Commission to have the Commission make an intractable bargaining workplace determination under the Fair Work Act 2009 (Cth) (FW Act). The proceeding before the Commission remains extant, and the Commission has yet to make a determination. 2 In making an intractable bargaining workplace determination, the Commission is required to include "agreed terms" of a proposed enterprise agreement in its determination. There is a dispute between the Union and Fire Rescue Victoria as to whether the bargaining representatives of the parties agreed that certain terms should be included in the proposed agreement. A Full Bench of the Commission conducted a hearing into that question as a preliminary issue, and published a decision on 5 February 2024: United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FWCFB 43; 329 IR 1. The Full Bench held that there were no "agreed terms" and directed that the matter be listed for a case management conference on a date to be advised. 3 After the decision of the Full Bench was published, and bearing in mind that the Commission had yet to make a determination, the FW Act was relevantly amended so as to alter the focus of the inquiry in relation to what are "agreed terms" for the purposes of inclusion in an intractable bargaining workplace determination. We will identify those amendments and the transitional provisions later in these reasons. 4 The Union commenced this proceeding in the Court's original jurisdiction seeking a writ of certiorari to quash what it claimed to be a decision of the Commission relating to the identification of agreed terms of the proposed enterprise agreement. The Union also sought mandamus in terms to which we will refer later. The proceeding was referred to a Full Court for hearing. 5 There are three features of the Union's application that together are dispositive. The first is that, as we have mentioned, the legislation under which a determination is to be made by the Commission has been amended, with the result that the opinion expressed by the Commission as to what "agreed terms" exist is the result of applying a different test from the one the Commission must apply when it ultimately comes to make its determination. The second is that, despite expressing its view as to what "agreed terms" existed under the former iteration of the legislation, the Commission has not yet made a decision that is amenable to a writ of certiorari. The third is that the Union seeks no other relevant relief that the Court should grant.

The legislation 6 Section 235 of the FW Act empowers the Commission, upon the application of a bargaining representative to a proposed enterprise agreement, to make an intractable bargaining declaration in relation to the proposed agreement. The Commission may do so if it is satisfied of the matters set out in s 235(2), which include that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. The Commission may specify in the declaration a post-declaration negotiating period, which may be extended: s 235A. In this case, by an application filed with the Commission on 28 July 2023, the Union applied for an intractable bargaining declaration, which a Full Bench of the Commission granted on 4 October 2023: United Firefighters' Union of Australia v Fire Rescue Victoria [2023] FWCFB 180. 7 After making a declaration, the Commission must then make an intractable bargaining workplace determination as quickly as possible, subject to any post-declaration negotiating period: s 269. Such a determination is a workplace determination: s 12. As with an enterprise agreement, a person to whom a workplace determination applies must not contravene a term of the determination: ss 51(1), 279-80. 8 Section 270(1) of the FW Act provides for terms that an intractable bargaining workplace determination must include. Section 271 is complementary, and provides that a determination must not include any terms other than those required by s 270(1). 9 Some of the required terms explicitly depend upon the Commission's own consideration. This is the case in relation to s 270(3), which provides - Terms dealing with the matters at issue (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue: (a) if there is a post-declaration negotiating period under section 235A for the declaration concerned - after the end of that period; or (b) otherwise - after making the declaration. Note: Any such terms must comply with section 270A. (Emphasis added.) 10 Other required terms are referred to as core terms and mandatory terms: ss 272-3. While the Act describes the subject matter of these terms, and provides for the requirements for, and limitations on, their content, it does not prescribe the actual terms. That is left to the Commission. In deciding which terms to include in a workplace determination, the Commission must take account of the range of factors that are set out in s 275. Otherwise, within those constraints, the content of those terms is for the Commission to determine. 11 The situation is otherwise in relation to agreed terms. The Commission must include agreed terms in its determination: ss 270(1)-(2). There is no scope to do otherwise. That follows from the relevant provisions of the FW Act both before and after the amendments that were effected by Part 5A of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), which commenced on 27 February 2024. Specifically, s 270(2) of the FW Act requires that an intractable bargaining workplace determination must include the agreed terms - Agreed terms (2) The determination must include the agreed terms (see subsection 274(3)) for the determination. 12 Section 274(3) gives content to the expression agreed term. Prior to the 2024 amendments, s 274(3) of the Act provided - Agreed term for an intractable bargaining workplace determination (3) An agreed term for an intractable bargaining workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at whichever of the following times applies, agreed should be included in the agreement: (a) if there is a post-declaration negotiating period for the intractable bargaining declaration to which the determination relates - at the end of the post-declaration negotiating period; (b) otherwise - at the time the intractable bargaining declaration was made. Note: The determination must include an agreed term (see subsection 270(2)). 13 A feature of this repealed provision was that an agreed term was to be ascertained at one of two alternative points in time, depending upon the circumstances: (1) at the end of the post-declaration negotiating period, if there was one; or (2), at the time the intractable bargaining declaration was made. In this case, the Commission specified a post-declaration negotiating period of two weeks that ended on 18 October 2023. 14 The 2024 amendments substituted the following provision for s 274(3) - Agreed term for an intractable bargaining workplace determination (3) An agreed term for an intractable bargaining workplace determination is: (a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and (b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and (c) if there is a post-declaration negotiating period for the declaration - any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement. Note The determination must include an agreed term (see subsection 270(2)). 15 The substituted provision differs from the former provision against which the Commission decided that there were no agreed terms. The main difference is that whereas the former provision directed attention to two alternative points in time, the current provision provides for an accumulation of agreed terms at three successive points in time. Those points in time are: (1) the time at which the application for the intractable bargaining declaration concerned was made; (2) the time at which the declaration was made; and (3) the end of any post-declaration negotiating period. In this case, those respective points in time were 28 July 2023, 4 October 2023, and 18 October 2023. One practical consequence of the substituted provision is that any terms agreed at the time an application is made, and any additional agreed terms at the end of a negotiating period, are locked in for the purposes of the Commission making its determination. 16 The transitional provisions for the substituted s 274(3) are in Part 18 of Schedule 1 to the amending Act, cl 110 of which relevantly provides - 110 Application of amendments - intractable bargaining workplace determinations (1) This clause applies to the following provisions: (a) section 270A of the amended Act; (b) subsection 274(3) of the amended Act. (2) The provisions apply in relation to determinations made on or after the commencement of Part 5A of Schedule 1 to the amending Act (including determinations in relation to which the declaration concerned, or the application for the declaration concerned, was made before that commencement). … 17 Because the Commission has yet to make a determination on the Union's application, the substituted s 274(3) will apply.

Further background 18 Fire Rescue Victoria is established by s 6(1) of the Fire Rescue Victoria Act 1958 (Vic). It is constituted by the Fire Rescue Commissioner, who is a person appointed under s 9(1) of the Act, and is a body corporate. The establishment of Fire Rescue Victoria was brought about by significant amendments to its governing legislation that commenced operation on 1 July 2020. 19 From July 2020, the Union and Fire Rescue Victoria, as bargaining representatives, engaged in informal and then formal bargaining for a proposed enterprise agreement for the professional and operational staff of Fire Rescue Victoria. 20 In its written submissions to the Court, the Union accepted that all bargaining for the proposed enterprise agreement was conducted against the background that Fire Rescue Victoria was bound by the Victorian government wages policies, namely: the 2019 Wages Policy, the 2022 Wages Policy, and the 2023 Wages Policy. The terms of these policies were central to the Commission's preliminary opinion that there were no terms that the bargaining representatives had agreed should be included in the proposed enterprise agreement. That was because the wages policies provided, amongst other things, that during bargaining for an enterprise agreement all offers by public sector agencies should be made on an in-principle basis, with the agency communicating that the offer was subject to government approval. The policies also provided that all proposed enterprise agreements required the approval of government prior to the commencement of the formal approval requirements outlined in the FW Act. These features of the policies, and various statements by Fire Rescue Victoria during the course of bargaining, led the Commission to decide that any representations by Fire Rescue Victoria or statements by the Commission that individual terms had been "agreed" were objectively to be understood as being within the parameters of the relevant wages policy, with the consequence that any such terms were subject to the approval of government, and had not been "agreed" for the purposes of s 274(3) of the FW Act as it then stood.

The grounds of review 21 The Union's two grounds of review before the Court are set out in a supporting affidavit of the Union's solicitor. Both grounds allege jurisdictional error. The first ground alleges that the Commission misconstrued the relevant provisions of the Act. The second ground proceeds on the premise that the finding of the Commission that there were no agreed terms was a "jurisdictional fact", and that the Commission had wrongly determined this fact. Set out verbatim, the two grounds are as follows - (a) The Full Bench misconstrued the provisions of Part 2-5, Division 4 and 5 of the FW Act and in consequence thereof, it misunderstood its jurisdiction or misunderstood or failed to apply itself to the question it was required to decide, in determining the agreed terms for the purposes of the intractable bargaining determination it was required to make following the intractable bargaining declaration made 4 October 2023 in [2023] FWCFB 180. (b) The Full Bench wrongly determined the existence of jurisdictional facts being the agreed terms: i. by finding that there were no agreed terms at the time Commissioner Wilson of the Fair Work Commission issued a statement on 19 June 2023 to the effect that both bargaining parties had informed him that all matters were agreed between them than the quantum of wages and allowances, and as a consequence denied itself jurisdiction to include the agreed terms in the intractable bargaining determination as it was obliged to do by s.270(2) of the FW Act; ii. by wrongly determining that there were no agreed terms at any time subsequent to 19 June 2023 and as a consequence denied itself jurisdiction to include the agreed terms in the intractable bargaining determination it was obliged to do by s.270(2) of the FW Act.

The remedies sought by the Union 22 The remedies sought by the Union are set out in its originating application. The terms of the relief sought are important, so we will set them out - 1. A writ of certiorari issue to the Fair Work Commission to remove into this Court and to quash the decision of the Full Bench of the Fair Work Commission made on 5 February 2024 in United Firefighters' Unions v Fire Rescue Victoria (trading as FRV) [2024] FWCFB 43 (Decision) determining that there were no agreed terms under s.274 of the Fair Work Act 2009 (FW Act) for the purposes of the intractable bargaining determination to be made following the intractable bargaining declaration made 4 October 2023 in [2023] FWCFB 180. 2. A writ of mandamus issue to the Fair Work Commission requiring it to determine the agreed terms under s.274 of the FW Act for the purposes of the intractable bargaining determination to be made following the intractable bargaining declaration made 4 October 2023 in [2023] FWCFB 180. 3. Such further or other orders as the Court considers appropriate. 23 As to paragraph 3 of the Union's prayer for relief, the Union did not address the Court on any relief other than its claims for certiorari and mandamus.

There is no decision of the Commission that is amenable to certiorari 24 The decision of the Commission that is challenged by the Union comprises the Commission's reasons for reaching the opinion that there were no agreed terms. That decision is not the workplace determination. Nor can the findings it contains amount to some sort of binding declaration: Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148-9 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ). The decision amounts to no more than an opinion on a preliminary issue framed by the Commission, which is now redundant as a result of the 2024 amendments which substituted a new s 274(3) of the FW Act. 25 There is no question that the findings may be taken into account by the Commission, however constituted, when it comes to make its operative workplace determination. That is because the Commission is authorised under s 590 of the FW Act to inform itself in relation to any matter before it in such manner as it considers appropriate, and that may include by reference to findings made upon the hearing of the preliminary question. But the findings are not the determination. And, subject to according the parties procedural fairness, the Commission as constituted for the purpose of making the determination is not bound to adopt them. That is pronounced by the fact that any determination that the Commission must make in due course will be by reference to the substituted s 274(3) of the Act. 26 Accordingly, a question arises as to whether certiorari lies to quash any decision that the Commission has made. The Union submitted that Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) and Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 (Hot Holdings) supported its claim that the Commission's decision on the preliminary question was amenable to certiorari. We do not accept these submissions. 27 The function of a writ of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ); Ainsworth at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ). In Hot Holdings, Brennan CJ, Gaudron and Gummow JJ explained at 159 that for certiorari to issue, "it must be possible to identify a decision which has a discernible or apparent legal effect upon rights", for "[i]t is that legal effect which may be removed for quashing". Such a decision need not be an ultimate decision that affects legal rights, but may be a decision at a preliminary stage that has a necessary effect on the final or ultimate decision. The requirement that in order that a decision at a preliminary stage be amenable to certiorari the decision must have a necessary effect on the ultimate decision was explained in Hot Holdings at 164-5. It is not enough that a preliminary decision may be taken into account by the ultimate decision-maker. Certiorari lies where a preliminary decision must be taken into account by the body entrusted with the power to make a decision affecting legal rights. 28 Once made, the intractable bargaining workplace determination will have an effect on legal rights. But in itself, the impugned decision of the Commission has no operative legal effect. It rises no higher than the expression of the Commission's opinion, under a previous state of the law, as to what terms appeared, on the evidence then before the Commission, to be agreed. Nor is this expression of opinion an essential preliminary to making the workplace determination. As explained above, the Commission may or may not inform itself by reference to the opinions expressed in the decision. But the FW Act does not provide for any staged process within which the Commission's decision has any place. And the task the Commission must perform when making the workplace determination will be to apply the amended provisions of the FW Act, which will require a different inquiry from that undertaken previously. 29 Nor is the Union entitled to a writ of mandamus in the way that claim was put on this application. Mandamus was sought on the supposition that a writ of certiorari would issue to quash the preliminary findings of the Commission. Significantly, the Union did not seek prohibition, or an injunction, to preclude the Commission from acting on the preliminary findings, nor did the Union seek a declaration as to the existence and content of agreed terms on the assumption that this was a matter for the Court to determine. 30 The question whether there was a decision of the Commission that was amenable to certiorari, and the significance of the 2024 amendments to the FW Act to that question, were specifically raised by the Court during the hearing. The Union was given an opportunity to file supplementary written submissions after the hearing had concluded. By those submissions, the Union maintained that the Commission's preliminary findings were amenable to certiorari, which, for the reasons we have given above, we do not accept.

Conclusions 31 Because the Union is not entitled to the relief that it seeks on the ground that there has been no determination of the Commission that could attract certiorari or mandamus in the way argued by the Union, the Court should not give a hypothetical opinion on the underlying facts or other legal questions that are in issue. The fact that the Commission has yet to determine the matter itself by reference to the legislation that would be applicable to its own determination reinforces our view that it would not be appropriate for the Court to venture an opinion in the absence of a maintainable claim for relief. As a result, the application should be dismissed. Neither Fire Rescue Victoria nor the Minister sought costs of the application: see FW Act s 570.

Reasons for giving leave to the Minister to intervene 32 Finally, on 16 July 2024, the Victorian Minister for Emergency Services filed an interlocutory application seeking leave to intervene in the proceeding. The application was accompanied by an outline of written submissions that the Minister sought to advance before the Court. The Minister's application was heard at the commencement of the hearing on 13 August 2024, and we granted leave to intervene, with reasons to be published. The following are the Court's reasons. 33 Under r 9.12(2) of the Federal Court Rules 2011 (Cth), in determining whether to grant leave to a party to intervene: (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. 34 The Minister is responsible for the administration of the Fire Rescue Victoria Act, and Fire Rescue Victoria is subject to the general direction and control of the Minister pursuant to s 8 of that Act. The question whether Fire Rescue Victoria's adherence to the State government's wages policy and directives was able to qualify its bargaining position was a central issue that was considered by the Commission, and the Minister was given leave by the Commission to make submissions on that issue. The Minister therefore has a direct interest in the approach that the Commission, or the Court, adopts in relation to what terms must be included in the workplace determination. The submissions that the Minister foreshadowed to the Court were useful and different from those foreshadowed on behalf of Fire Rescue Victoria. There was no apparent basis or evidence to suggest the Minister's intervention would unreasonably interfere with the parties' ability to conduct the proceeding as they wished, or that it would cause any increased cost or delay. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wheelahan, Raper and Dowling.