United Firefighters Union of Australia v Honourable Jaclyn Symes

Background 1 On 17 May 2024, the primary judge dismissed a proceeding brought by the United Firefighters Union of Australia against the Victorian Minister for Emergency Services and the State of Victoria in which the Union had sought declaratory relief and the imposition of civil penalties for alleged contraventions of s 343(1)(a) of the Fair Work Act 2009 (Cth) (FWA): United Firefighters' Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510 (PJ). The Union claimed that the Minister acted ultra vires the Fire Rescue Victoria Act 1958 (Vic) (FRV Act) by instructing and directing Fire Rescue Victoria (FRV) not to enter into a proposed agreement to resolve a dispute that was the subject of an arbitration before the Fair Work Commission (FWC). 2 The primary judge pellucidly summarised the impugned conduct at PJ [4]: In August and September 2022, the Minister intervened in efforts that were then underway as between the UFU and FRV to resolve their dispute. Specifically, she sought to preclude FRV from agreeing to or executing written terms that the UFU had proposed in settlement, or partial settlement, of the dispute. Those terms assumed the form of a proposed agreement with an entity named Victorian Professional Career Firefighters Registration Board Limited… 3 The efforts referenced by his Honour were first, a letter sent by the Minister to FRV dated 17 August 2022, by which she asserted that her consent was required for FRV to enter into the proposed agreement, which she did not provide. Second, a formal direction dated 19 September 2022 pursuant to s 8 of the FRV Act, that FRV must not enter into the proposed agreement and must advise the FWC of that fact. A consequence was that on 2 December 2022, the FWC dismissed the application that the Union had initiated. 4 In this Court, the Union pleaded the contravention claim in the form of a Further Amended Statement of Claim dated 11 May 2023. The Union contended that FRV exercised a workplace right within the meaning of s 341(1)(b) and (2)(a) of the FWA by participating in the dispute resolution process before the FWC and that the Minister by the letter contravened s 343 of the FWA by taking action with intent to coerce FRV not to exercise the right. The Union further contended that by the direction, the Minister took action against FRV with intent to coerce it not to exercise the workplace right and further intended to negate FRV's choice to participate in a particular way in the dispute resolution process before the FWC. 5 In each case, the Union pleaded that the Minister's action in delivering the letter and by making the direction was "unlawful, illegitimate and/or unconscionable". 6 On 30 August 2023, the respondents' solicitor, in correspondence with the Union's solicitor, stated that the respondents did not intend to file any affidavits or outlines of evidence and: The respondents seek to amend their defence at [38], [43] and [48] to admit that, by sending the Minister's letter and/or issuing the Minister's direction, the first respondent took action against Fire Rescue Victoria with the intent to negate its choice about how to exercise its workplace right to participate in the Dispute Resolution Process, in that she did not want Fire Rescue Victoria to exercise that workplace right in a way that would result in it entering into the proposed service agreement. 7 The solicitor attached a consent order and the proposed amended pleading. The order was agreed. This resulted in the filing of the Minister's Further Amended Defence on 5 September 2023. In that pleading the Minister relevantly admitted that by sending the letter and in giving the direction she took action against FRV with the intent to negate its choice about how to exercise its workplace right to participate in the dispute resolution process in that she did not want FRV to exercise that right in a way that would result in it entering into the proposed agreement (the admission). The Minister denied that her actions were unlawful, illegitimate and/or unconscionable. 8 Relevantly, the primary judge found that the FRV Act did not require the Minister to consent as asserted in the letter and the Minister acted ultra vires in contending to the contrary (PJ [81] and [93]). His Honour declined to grant declaratory relief to give effect to his ultra vires conclusion because a declaration would not serve any useful purpose (PJ [120]-[121]), because the Minister was entitled to give the direction (PJ [106]), in doing so she did not act unlawfully (PJ [156]-[157]) and her conduct was neither unconscionable (PJ [158]-[165]) nor illegitimate (PJ [166]-[175]). 9 The Union by a Notice of Appeal filed on 27 May 2024, challenged his Honour's finding that the direction was lawfully given and did not contravene s 343 of the FWA and, in the alternative, that his Honour erred in failing to find that the Minister contravened s 343 of the FWA by sending the letter and giving the direction. To that point the Union accepted, conformably with the pleaded case, that it was necessary to prove unlawful, illegitimate and/or unconscionable conduct to establish a contravention of s 343 of the FWA. However, without a grant of leave to amend the appeal grounds and in written submissions filed on 16 October 2024, the Union raised a new argument to the effect that s 343 of the FWA only requires the taking of action with an intention to coerce the exercise or non-exercise of a workplace right and there is no requirement that the action must also be unlawful, unconscionable or illegitimate. In framing that submission, the Union invites departure from a relatively long line of cases in this Court. A late application for leave to amend 10 The appeal was listed for hearing on 14 November 2024. The respondents objected to the new argument. The Union answered by filing an interlocutory application for leave to file an amended Notice of Appeal to raise two new arguments. On 29 October 2024, we made orders vacating the date for the hearing of the appeal and instead listed the interlocutory application for hearing on 14 November 2024. 11 The Union relies on the affidavit of Antonia Sakkas made on 23 October 2024. The Minister relies on the affidavit of Veronica Belot made on 6 November 2024. 12 The Union seeks leave to amend the Notice of Appeal by adding grounds 1A and 1B, such that the Amended Notice of Appeal will read as follows: 1. The primary judge erred in finding that the 19 September Direction was given validly under s 8 of the Fire Rescue Victoria Act 1958 (Vic). 1A. The primary judge erred by construing s 343 of the Fair Work Act 2009 (Cth) as only to actions that are "unlawful, unconscionable, or illegitimate" (J [125], [1261], [176]), rather than as applying to "any action". 1B. In the alternative to ground 1A, the primary judge erred by construing s 343 of the Fair Work Act 2009 (Cth) as applying only to conduct within the exhaustive categories of "unlawful, unconscionable or illegitimate," rather than as treating those adjectives as non-exhaustive members of a genus of conduct that, whether or not it is contrary to an external legal norm, is not blameless. 2. In the alternative to ground 1A and 1 B, the primary judge erred in finding that the sending of the 17 August Letter did not involve conduct properly described as unlawful, unconscionable or illegitimate. 3. In the alternative to ground 1A and 1 B, the primary judge erred by failing to find that the giving of the 19 September Direction involved conduct properly described as unlawful, unconscionable or illegitimate. 4. The primary judge erred in finding that the Respondents did not contravene s 343 of the Fair Work Act 20009 (Cth) by the sending of the 17 August Letter. 5. The primary judge erred by failing to find that the Respondents contravened s 343 of the Fair Work Act 20009 (Cth) by the giving of the 19 September Direction. 6. In the alternative to grounds 4 and 5, the primary judge erred by failing to find that the Respondents contravened s 343 of the Fair Work Act 20009 (Cth) by the sending of the 17 August Letter and the giving of the 19 September Direction. (Errors in the original.) The territory of the dispute 13 Section 343(1) of the FWA provides: 343 Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1). 14 The construction of s 343(1) was not in dispute at first instance, as the primary judge's reasons recorded at [125]: The conceptual limits of coercion under pt 3-1 of the FW Act are settled and were not in dispute. A person engages in conduct with intent to coerce another person to do or not do something if that conduct: (1) is engaged in with the intention of negating the other person's choice as to whether that thing should or should not be done; and (2) is unlawful, unconscionable or illegitimate. See: Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39, 84 [174] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding) and the discussion concerning older authorities on the point in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16, 23-24 [20]-[22] (Gyles J); see also the authorities to which the full court referred in Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, 300 [155] (Allsop CJ, Collier and Rangiah JJ). 15 The Union's proposed further grounds would challenge the second limb of the presently settled construction of s 343(1) of the FWA. In written submissions, the argument is summarised as: The UFU challenges point (2) based on two proposed constructions of s 343(1). The first is that the text of s 343 is clear and contains only the limitation it states: intention to coerce (i.e., to negate choice) to exercise etc. a workplace right, or exercise etc. that right in a particular way. There is no need for the action also to be "unlawful, unconscionable, or illegitimate." Alternatively, the UFU says that it is wrong to view the adjectives "unlawful, unconscionable, or illegitimate" as exhausting the conduct that may breach s 343. They are, if anything, members of a genus that is wide enough to accommodate ultra vires conduct. Neither construction was advanced below… 16 The primary consequence of success on proposed ground 1A is that the respondents having admitted intent, it follows that the contravention is made out. 17 In support of the application for leave, Mr Borenstein KC for the Union accepted that ordinarily a party is bound by the conduct of its case at trial. To that general principle there are exceptions, such as where it is in the interests of justice that a party should have leave to argue an expanded case on appeal. As an example, where there are pure questions of statutory construction or where the issue is of general application and importance in the administration of a statute: O'Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33 at 319, Mason J; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [31], Griffiths and Perry J, Mortimer J agreeing. Leave will not however, be granted if the point could possibly have been met by the calling of evidence at trial. 18 The submission continues to the effect that the new argument raises a question of law about which there is no factual dispute concerning the action that the Minister did take, and the characterisation of the action is a matter of objective determination. Bare assertions by the Minister in submissions to the effect that the case would have been run differently should not be accepted. There is no real prospect that if the new arguments had been developed at trial, the respondents would have made different forensic decisions. The Minister's admission of intent was unnecessary because of the presumption at s 361 of the FWA. 19 The new arguments raise an important question of principle of merit. In Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 at [61], Kiefel CJ, Keane, Nettle and Edelman JJ observed that "it is not immediately apparent" why "action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343." The submission continues that the point is ripe for determination and has important consequences for the administration of the FWA. 20 Mr Pound SC, Solicitor-General for the State of Victoria, for the respondents submits that leave should be refused for various reasons. Significant reliance is placed on Australian Building and Construction Commission v Molina (2020) 277 FCR 223; [2020] FCAFC 97 where this Court (Bromberg, Colvin and Abraham JJ) refused the appellant leave to argue that s 348 (an equivalent coercion provision) only requires an intention to coerce, and no more. That case had not been run at trial. The Court concluded that the new argument was a "fundamental shift" and an attempt by the appellant to "completely recast its case as to what is required in order to demonstrate an intention to coerce": [106], [108]. The new point could possibly have been met by new evidence below and even if not, the importance of finality in litigation and being bound to the trial case was determinative: [108], by reference to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [35], Allsop J (Drummond and Mansfield JJ agreeing). 21 Mr Pound also submits that the respondents will suffer prejudice if the new argument is permitted. Forensic choices were made in the conduct of the trial. There is at least the significant possibility that the respondents' case would have been conducted differently; the admission would not likely have been made and it would have been open to the Minister to call evidence to rebut the s 361 presumption. Further, the new argument gives rise to a potential Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 issue. If the new argument had been raised at trial, the respondents might have pleaded a defence contending that s 343 cannot validly operate as now contended because it is "critical to the State's capacity to function as a government that it can control the exercise of workplace rights of statutory bodies" (Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; [1995] HCA 71 at 234), which defence might have been supported by evidence. The example that is given is evidence about the interests that the Minister sought to protect in giving the direction and/or the importance of the State's power to direct statutory bodies generally in respect of workplace rights and to comply with State wage policies when negotiating enterprise agreements. 22 As to the second of the new arguments expressed as proposed ground 1B, if the issue of blameworthiness had been raised at the trial, it would have been open to the respondents to contend that matters of public policy and concerns held by the Minister in relation to the proposed agreement were relevant, which matters could have been the subject of evidence. Finally, and more generally, the Union has not explained the delay in raising the new arguments. Consideration 23 As the arguments were developed and refined in oral submissions, attention focused on the following issues some of which in our view are dispositive. 24 No satisfactory explanation has been given on behalf of the Union about why the new arguments were not considered and put at the trial. Mr Borenstein frankly submitted that the point was not considered. We accept the submission that no deliberate forensic choice was made not to run the new arguments. 25 The new arguments do not simply raise a pure question of statutory construction, divorced from the forensic decisions that were made by the respondents at the trial. We accept the submission of Mr Pound that the respondents approached the case on the basis pleaded: no intention to coerce would be found unless the Minister's conduct was also characterised as unlawful, illegitimate or unconscionable. On the respondents' case that conclusion that was not open if Minister acted within her statutory powers and for a proper purpose. If the Union had not pleaded its case on that basis, the admission would likely not have been made and the respondents may have called the Minister, or adduced other evidence, to rebut the s 361 presumption. 26 We reject the submission of Mr Borenstein that the respondents have failed to articulate just what that evidence might have been or how the presumption at s 361 may have been rebutted. The respondents face the difficulty identified by Allsop J in Branir at [38]: [O]f the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. 27 We accept that the respondents would be prejudiced if the new arguments were permitted to be raised in that the admission would not likely have been made and it would then have been open to call evidence to rebut the s 361 presumption. That is of itself usually conclusive, as recently confirmed in Bird v DP (a pseudonym) [2024] HCA 41. In that appeal the Court refused leave for the respondent to rely on a notice of contention that the appellant was liable for breach of a non-delegable duty of care to protect him from the risk of sexual abuse by its priests. That case was not advanced at trial. The plurality of Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ stated at [39]: As a general rule, all substantial issues between parties should be settled at trial and new issues should not be raised on appeal. That rule, however, is not absolute. A party will generally be refused permission to rely on a point not taken below, among other grounds, where a party seeks to raise a case which did not arise on the pleadings; where if the issue had been raised at the trial, it might have been the subject of evidence; or where the issue requires a fresh consideration of facts that are neither admitted nor beyond controversy. A party may be permitted to rely upon a point not taken below, however, if the other party concedes that its case would not have been presented differently if the point had been taken below. (footnotes omitted). 28 To the same effect, see Gleeson J at [155] and Jagot J at [252]-[256]. 29 That point extends to the Melbourne Corporation argument that the respondents may have raised at trial, supported by evidence. 30 There are other hurdles that the Union faces. There is a real question whether another conceded issue may be revisited if leave were granted. At trial, it was common ground that participation by FRV in the dispute resolution process was a workplace right within the meaning of s 341 of the FWA. In argument, the Court raised whether the respondents would have adopted that position if the Union had pleaded the new arguments. The point that lurks is whether FRV could have a right to negotiate inconsistently with its status as a statutory body subject to ministerial control and obliged to act in accordance with government policy. That raises an obvious s 109 Constitutional point whether a State law is invalid to the extent that it purports to authorise the Minister to do something that the FWA prohibits. Mr Pound submitted that if on notice of the new arguments, the respondents may not have conceded that FRV had a workplace right from the outset. 31 If leave to amend were granted, that would not be the end of the matter. No application was made by the Union to amend the Further Amended Statement of Claim to delete each of the paragraphs which contend that the Minister's action was unlawful, illegitimate and/or unconscionable. Inevitably, if leave were granted, the respondents would apply for leave to withdraw the admission. That may then lead to an application to adduce new evidence, which would turn this Court into a trial court. Combined with the deliberate forensic choices that were made by the Union in framing the trial issues and the inherent unfairness that will arise if the Union is permitted to depart from its trial case, makes this appeal an unsuitable vehicle for the question of statutory interpretation, which we accept is an important one, to be agitated. This is plainly a case in which it is in the broader interests of the administration of justice that the Union be held to its trial case: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7-8, Gibbs CJ, Wilson, Brennan and Dawson JJ. 32 For these reasons, leave to amend the Notice of Appeal is refused. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Charlesworth and McElwaine.

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