United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board

REASONS FOR JUDGMENT 1 There is before the Court a notice of motion on behalf of the respondent seeking orders that the proceeding be dismissed, or in the alternative that pars 77, 78, 79, 80 and 81 of the amended statement of claim be struck out. 2 The application of the applicant union was filed on 17 February 2004. It sought, on the grounds appearing in the accompanying statement of claim, relief by way of the imposition of penalties under s 178 of the Workplace Relations Act 1996 (Cth) (the Act) for breaches of a number of clauses of a certified agreement (the Agreement) dated 28 November 2002. 3 There was subsequently filed an amended statement of claim which pleads the Agreement and in particular, in cl 9, a consultative process, which includes a provision for various steps for dispute resolution, including a consultative process and in cl 12 various other steps. These involve progressively referring the dispute to an employee representative, then to an appropriate senior officer, then to an industrial representative and then to the manager of employee relations. Clause 12.7 provides: "If the matter is not settled following progression through the disputes procedure, it shall be referred by any party to an agreed arbitrator. If there is no agreed arbitrator within four weeks, the matter will be referred directly to the Australian Industrial Relations Commission for decision or determination of change, or other body or court for conciliation/mediation and if necessary for determination. Any determination includes access to appeal." 4 The amended statement of claim goes on to deal with a number of different episodes, where it is alleged there has been a breach of the Agreement. For example, pars 7 to 16 plead in substance that an employee of the respondent who normally had a role as state coordinator of the Juvenile Fire Awareness and Intervention Program, a joint enterprise between the respondent and the Country Fire Authority, was on leave and during that time the position was filled by an officer of the CFA, rather than somebody in the employ of the respondent. 5 It is then pleaded that the conduct of the respondent in this regard was a breach of a particular clause of the Agreement. Similar allegations are pleaded in relation to a number of other events. 6 The particular paragraphs that are referred to in the notice of motion plead that a dispute was notified concerning the various matters, and then in para 81 it is said: "Pursuant to clause 12.7 of the agreement, the [applicant] has by commencing these proceedings referred the matters the subject of the disputes referred to in the statement of claim to the Federal Court for mediation and determination." 7 That stand was confirmed in a letter dated 15 March 2004 sent from the applicant to the respondent, stating that a person the respondent had nominated was not agreed as an arbitrator, and continuing: "As you note, the matters set out in your letter have already been referred to the Federal Court. (If there was any doubt about that comment, the UFU by this letter refers the matters to the Federal Court for conciliation/mediation and determination as pleaded in proceedings V157/2004)." 8 I was told that at a hearing before the Industrial Relations Commission last month, when the respondent sought to bring the disputes mentioned in the statement of claim and, I think, other disputes before the Commission, the objection was taken on behalf of the applicant that these matters were before the Federal Court. While it is not totally clear whether that was the stand taken, and I was referred to other passages of the transcript which might have suggested the applicant took a different stand, it does seem likely that the applicant has asserted that cl 12.7 has the effect that disputes must go to either one place or another and that the commencement of the present proceeding meant that the Commission did not have jurisdiction. Paragraph 81 and the letter of 15 March 2004, are the only consistent with such a stand. 9 The Act provides by s 170LT(8) that an agreement to be certified must include procedures for preventing and settling disputes between employer and employees about the matters rising under the agreement. Section 170LW provides: "Procedures in a certified agreement for preventing and settling disputes between the employer and employees, whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following; (a) settle disputes over the application of the agreement; (b) to appoint a board of reference, as described in section 131, for the purpose of settling such disputes." 10 It was put on behalf of the respondent that parties cannot by private agreement confer non-judicial power on the Federal Court. That seems clear beyond argument. As Gaudron J in Gould v Brown (1998) 193 CLR 346 at [59]: "It is settled constitutional doctrine that provisions of Chapter III of the Constitution, particularly section 71, prevent the Commonwealth from conferring any power other than judicial power and powers incidental or ancillary to the exercise of judicial power on federal courts established by or under Chapter III of the Constitution." 11 If Parliament cannot do this, still less can private parties. This incidentally disposes of one argument advanced by the applicant that the certified agreement had some particular statutory standing because it was enforceable directly under the Act. 12 It is not disputed that there is jurisdiction in this Court to deal with allegations that the Agreement has been breached, and to impose penalties. Counsel for the applicant however justified the presence of pars 77 to 81 in the amended statement of claim on the basis that these allegations would be relevant to the quantum of any penalty imposed, because they show that the respondent had adopted proper procedures in an attempt to resolve the dispute. This submission involves something of a retreat from the stand previously taken and from what I take to be the clear meaning of par 81. 13 While accepting for the purpose of argument that such material would be relevant in considering the amount of penalty, it seems to me that par 77 to 81 serve no useful purpose in the statement of claim. They have already given rise to confusion. I think their continued presence in the pleading will not assist the proper adjudication of the complaints of the applicant, and will lead to the possibility of further misunderstanding and distraction and the raising of false issues. 14 Accordingly, I will make the alternative orders sought in the notice of motion, that is, that pars 77, 78, 79, 80 and 81 of the amended statement of claim be struck out. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.