Fair Work Act 2009

s.608 - Referring questions of law to the Federal Court

Referral of a question of law to the Federal Court of Australia - application dismissed.

• [1] On 4 August 2025, the United Firefighters' Union of Australia (UFU) made an application under s 608 of the Fair Work Act 2009 (Cth) (FW Act) for the referral of the following two questions of law for the opinion of the Federal Court of Australia (Federal Court):

Question 1: Where there has been an intractable bargaining declaration and a matter that was still at issue was the content of a consultation term, is the Fair Work Commission required to include in an intractable bargaining workplace determination the consultation term (or terms) that the Commission considers deals with that matter, after taking into account the factors in s 275 of the Act, and in compliance with s 270A of the Act (see ss 270(1)(a) and (3) of the Act), irrespective of whether that term (or terms) would be inconsistent with the model consultation term (see ss 270(1)(c) and 273(5) of the Act)?

Question 2: If the answer to Question 1 is 'no':

(a) does the Commission have power to include in a determination a consultation term or terms different to the model consultation term (for example, which expand upon, widen the scope of, or include obligations additional to, the model consultation term), so long as the term or terms are not inconsistent with the model consultation term; and

(b) is the UFU's proposed consultation term set out in the Annexure consistent (in whole or in part) with the model consultation term?

1. The background against which this application has been made is as follows. The UFU and Fire Rescue Victoria (FRV) have been engaged in bargaining for a new enterprise agreement on an informal basis since 2020 and on a formal basis since 26 April 2022 pursuant to a notice of employee representational rights issued on that date. On 4 October 2023, a Full Bench of the Commission made an intractable bargaining declaration (IBD) on the application of the UFU and with the consent of FRV and the Victorian Minister for Emergency Services (Minister).[1] The IBD that the Full Bench made provided for a two-week post-declaration negotiating period. This was intended to facilitate discussions about the parties' radically different positions about what were the agreed terms: the UFU's position was that bargaining had resulted in all terms of the proposed agreement being agreed except for wages and allowances, while FRV's position (supported by the Minister) was that there were no agreed terms at all.[2] The significance of this issue is that, in determining the terms of an intractable bargaining workplace determination (IBWD) as a consequence of the making of an IBD, the Commission is required under s 270(2) of the FW Act to include the 'agreed terms' in the IBWD and, under s 270(3), to include terms which the Commission considers deal with the matters that were still at issue. Under s 274(3), as it was at the time, an 'agreed term' was one that the bargaining representatives agreed should be included in the proposed agreement at the end of any post-declaration bargaining period, if there was one, or otherwise at the time the IBD was made.

• [3] Section 273 concerns mandatory terms to be included in an IBWD. Section 273(5) provides:

(5) The determination must include the model consultation term unless the FWC is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).

• [4] At the end of the post-declaration bargaining period, the parties had made no progress in respect of what constituted the agreed terms for the purpose of s 270(2). For relevant purposes, that meant that the UFU's position was that there was an agreed consultation term which s 270(2) required to be included in the IBWD to be made. FRV's position was that there was no agreed consultation term, in which case s 273(5) required the inclusion of the model consultation clause.

1. Section 269 relevantly requires that the Commission, constituted by a Full Bench, make an IBWD 'as quickly as possible' after the end of a post-declaration bargaining period. However, because there was a significant difference between the parties as to the scope of the agreed terms, it was necessary for the Full Bench dealing with the matter to determine this as a preliminary issue because of its impact on the scope of the arbitration to be conducted. In a decision issued on 5 February 2024,[3] the Full Bench determined in favour of FRV's position that there were no agreed terms within the meaning of s 274(3) (while noting at [5] that FRV had identified 10 specific matters that would require 'substantive determination').

• [6] The UFU then applied for judicial review of the Full Bench's decision, which resulted in the Full Bench deferring further proceedings concerned with making the IBWD required by s 269. Prior to the determination of this application by the Federal Court, the FW Act was amended by the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024 (Cth). Two amendments are of relevance. First, the definition of an 'agreed term' under s 274(3) was amended to mean a term that was agreed at the time of the application for the IBD, at the date that the IBD that was made or at the end of any post-declaration bargaining period. Second, s 270A was added to the FW Act and commenced on 27 February 2024. It provides:

(1) This section applies if, immediately before the determination is made, an enterprise agreement applies to one or more employees who will be covered by the determination.

(2) A term that is included in the determination to comply with subsection 270(3), and that deals with a particular matter, must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter.

(3) If a term to be included in the determination is not less favourable to a class of employees to which a particular employee belongs, the FWC is entitled to assume, in the absence of evidence to the contrary, that the term is not less favourable to the employee.

(4) Subsection (2) does not apply to a term that provides for a wage increase.

1. A Full Court of the Federal Court dismissed the UFU's application on 25 February 2025 on the basis that the Full Bench's decision was not amenable to certiorari because it was neither the IBWD itself or any form of binding declaration.[4] Having regard to the amendment to s 274(3), the court said at [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.

• [8] On 22 April 2025, the Full Bench made directions for the filing of evidence and submissions, and the matter was listed for hearing for a period of three weeks commencing on 22 September 2025. The directions included a requirement for the parties to file their respective positions in relation to which matters were said to be contested, and their draft IBWDs or draft clauses about contested matters, by 30 May 2025. The date for compliance with this requirement was subsequently extended to 13 June 2025. The documents filed by the parties make it clear that, with respect to the consultation term, the position remains the same as it was as at the end of the post-declaration bargaining period - namely, that the UFU contends that there is an agreed term which must be included in the IBWD and FRV contends that there is no agreed term and consequently that the model consultation term must be included.

• [9] Under the directions, as further amended, the parties were required to file their outlines of submission and evidence by 4 August 2025. As earlier stated, the UFU filed its s 608 application on 4 August 2025. On the same day, the UFU applied for the direction requiring it to file its evidence and submissions to be adjourned 'to enable the parties to prepare for the hearing of [the s 608] application if necessary' and because the question of law would 'likely determine the content of the submissions the parties are required to make, and the evidence the parties will be required to lead'. This application was refused by the Full Bench on 5 August 2025. The UFU eventually filed its evidence and submissions on 9 August 2025. In its submissions, the UFU maintains the position that, apart from wages and allowances, all matters including the consultation term are 'agreed terms' within the meaning of the amended s 274(3). In respect of the consultation term, the UFU submits in the alternative that if it is not an agreed term, the effect of s 270A is that the Commission must insert a consultation term that is no less favourable to employees than the consultation term in the current enterprise agreement applying to FRV and its employees. The UFU submits that s 270A prevails over s 273(5).

• [10] In support of its referral application, the UFU contends that the proposed questions all arise in the matter before the Full Bench such as to satisfy the jurisdictional prerequisites in s 608(1) because the parties are in dispute as to what term(s) relating to consultation should be included in the IBWD, and the model consultation term is less favourable to the employees of the Respondent than the consultation terms in the current enterprise agreement. The discretion should be exercised in favour of referral of the questions because:

• resolution of these legal issues so as to establish guardrails for possible consultation terms may enable ongoing bargaining, given the substantial differences between the model consultation term and the terms proposed by the UFU;

• final resolution of this issue before trial would assist to make the ultimate hearing of the IBWD proceeding more efficient and, depending on the answers to the questions, it may be unnecessary to adduce evidence on the consultation term;

• the issues, concerning (as they do) the proper construction of core provisions in the recently-renovated workplace determination regime and workplace consultation, are of general importance and wide application;

• there is no need to make factual findings, since the questions are purely legal and the material that would need to go before the Full Court of the Federal Court in order that the questions could be properly presented would be very limited;

• referral could not involve any implication of questioning the correctness of earlier Full Bench decisions; and

• it is preferable that any legal questions be answered at Federal Court level before, rather than after, any determination is made, so that if and when a determination is made, the parties can have greater confidence in its stability as a set of terms and conditions.

• [11] FRV opposes the referral of the proposed questions on the following grounds:

• the referral will further delay the making of an IBWD and, given the protracted processes to date, priority should be given to finalising the IBWD process as soon as practicable to avoid further delaying the provision of benefits to be included in the IBWD (including pay increases) to FRV's operational workforce consistent with the requirement in s 269 that the Commission to make an IBWD 'as quickly as possible';

• there will be no efficiencies gained from the issues identified in the UFU's application being determined by the Full Court of the Federal Court in circumstances where the submissions and evidence in chief have already been filed;

• the construction of ss 270A and 273(5), and the terms and content of consultation terms, have been a live issue in the proceeding since at least 26 September 2023 when FRV submitted that there were no agreed terms in the context of the IBD, and at any time since then the UFU could have applied for referrals of the proposed questions of law and did not do so;

• the proposed questions involve an assessment of whether terms to be included in an IBWD would be inconsistent with the model consultation term, as well as an assessment of whether the UFU's proposed consultation term are inconsistent with the model consultation term, and are thus not pure questions of law; and

• it would be entirely appropriate, and within the scope of the Commission's ordinary responsibilities when making an IBWD, for the Full Bench to determine the scope and content of the consultation term to be included in the IBWD (including by addressing the questions identified by the UFU).

1. Section 608(1) imposes two preconditions on the exercise of the power conferred by the subsection on the President. The first is that any question must be one 'of law'. The second is that the question must be one 'arising in a matter before the Commission'.[5] For a question of law to 'arise', it must pertain to an issue that actually exists - that is, it must necessarily enter into the legal determination of the matter upon the facts stated. It is not sufficient that it might or will possibly arise. Remote or merely possible relation of the question of law to the facts is not enough to make the question 'arise' in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of 'arising'.[6]

• [13] If these preconditions are satisfied, there remains a discretion as to whether to grant the referral. That discretion is to be exercised having regard to the purpose and objects of the FW Act and, having regard to s 577, it should be exercised where possible and appropriate in such a way as to avoid undue delay in the determination of matters before the Commission.[7] If there are outstanding evidentiary or factual issues which would inhibit the efficient determination of the question of law, that will be a discretionary matter likely to weigh against a referral pursuant to s 608(1).[8]

• [14] I am not satisfied that the prerequisites for the exercise of the discretion in s 608(1) are satisfied. The first question proceeds on the factual premise that 'there has been an intractable bargaining declaration and a matter that was still at issue was the content of a consultation term'. That very premise is contested by the UFU which, notwithstanding the Full Bench's decision of 5 February 2024, intends to contend at the hearing that the consultation term was an 'agreed term' for the purpose of the amended s 274(3). The Full Court's decision at [28], quoted above, clearly contemplates that the Full Bench is not bound to act on its 5 February 2024 decision in making the IBWD and may be required to reconsider the issue of whether there were agreed terms by reference to the amended s 274(3). To that extent, it is not necessarily the case that the UFU's first proposed question will arise in the matter, and the determination of that question by the Full Court would require the hypothesis that the UFU fails to persuade the Full Bench that the consultation term was an 'agreed term' within the meaning of s 274(3) as amended. The first question therefore does not arise in the matter in the sense earlier discussed.

• [15] The second question only arises if the first question is answered 'no' and must therefore fall together with the first question. In addition, I do not consider that the second question, even considered in isolation, meets the jurisdictional prerequisites. Paragraph (a) involves the hypothesis that the Full Bench will need to consider a consultation term that is 'inconsistent' with the model term, and paragraph (b) would require an evaluative judgment, which I would hesitate to characterise as a 'pure' question of law, as to whether the UFU's proposed consultation term is 'inconsistent' with the model term.

• [16] Even if the prerequisites for the exercise of the power in s 608(1) were satisfied, I would not exercise the discretion in favour of the UFU for the following reasons. First, as just explained, the case that the UFU seeks to advance before the Full Bench is inconsistent with the premise of the proposed questions. Second, the UFU contemplates that the consequence of the referral of the questions would be the indefinite adjournment of the hearing before the Full Bench listed to commence on 22 September 2025 pending the determination of the questions by the Court. Having regard to the protracted history of this matter since the making of the IBD, this course would in my view be entirely inappropriate. It would be inconsistent with the Commission's obligation in s 269 to make an IBWD 'as quickly as possible'. The UFU's forensic strategy would also lead to considerable further delay in FRV's employees, who are frontline emergency services workers, obtaining the benefits that would flow from the making of an IBWD, which on any view will involve them receiving wage rises. Third, the UFU's contention that the resolution of its proposed questions might lead to further bargaining is fanciful having regard to the extended history of this matter and the agreed position of the parties in 2023 that bargaining had reached a stage of intractability. Fourth, as FRV submits, the UFU has left it very late to make its s 608 application, given that the parties have already filed their submissions and evidence in chief and the hearing is due to start in less than six weeks. The main issue raised by the UFU's questions has been a live one since s 270A took effect on 27 February 2024.

• [17] For these reasons, the UFU's application is dismissed.

1. [1] [2023] FWCFB 180; PR766779.
2. [2] [2023] FWCFB 180 [44]-[47].
3. [3] [2024] FWCFB 43, 329 IR 1.
4. [4] [2025] FCAFC 16.
5. [5]Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 5161 [52].
6. [6]Ibid [53]-[54]; Hamzy v Tricon International Restaurants [2001] FCA 1589, 115 FCR 78 [21]; Application by Restaurant and Catering Association of Victoria [2013] FWC 6705, 232 IR 433 [11].
7. [7]Health Services Union v Liviende Inc [2013] FWC 4435 [9]-[10].
8. [8]Country Fire Authority v United Firefighters' Union of Australia [2012] FWA 8803 [9]-[14].

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