Federal Court of Australia

United Firefighters’ Union of Australia v Country Fire Authority [2022] FCA 727

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief contained within the originating application dated 16 June 2022 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1    On 17 June 2022, as duty judge, I heard an application for an interlocutory injunction.

2    The respondent, the Country Fire Authority (CFA), and its employees are in the course of seeking to make a new enterprise agreement. The CFA has proposed an enterprise agreement to its employees and has requested that the employees, who would be covered by the agreement, approve it by voting for it under s 181 of the Fair Work Act 2009 (Cth) (Fair Work Act). The applicant, The United Firefighters Union of Australia (UFU) seeks an interlocutory injunction effectively restraining the conduct of the vote. The voting period commenced on Monday, 20 June 2022 and will conclude on Monday, 27 June 2022. It is for this reason, says the UFU, that the application for the interlocutory injunction is urgent.

3    The underlying dispute between the UFU and the CFA concerns the functions to be performed by the employees of Fire Rescue Victoria (FRV), largely represented by the UFU, and by employees of the CFA, largely represented by the Australian Services Union (ASU), in relation to incident management roles under the proposed new agreement. The CFA and its employees are currently covered by the “Country Fire Authority Professional, Technical and Administrative Agreement 2020 (2020 PTA Agreement), which was approved by the Fair Work Commission (FWC) on 17 June 2021 and commenced operation on 24 June 2021. Although that agreement has an expiry date of 28 November 2021, it remains in operation until replaced by a new enterprise agreement.

Factual Background

4    The background to the dispute lies in the 2019 reforms to the Victorian fire services. On 3 July 2019, the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic) (FSR Act) commenced operation. The Metropolitan Fire and Emergency Services Board (MFSB) was replaced by FRV (FSR Act, s 27) and the “Metropolitan Fire Brigades Act 1958” was renamed the “Fire Rescue Victoria Act 1958” (FSR Act, s 23). Employees of the former MFSB became employees of FRV: FSR Act, s 50.

5    A purpose of the FSR Act was to amend the Country Fire Authority Act 1958 (Vic) (CFA Act) to recognise the CFA as “a fully volunteer firefighting service”: s 1(c)(ii). Accordingly, s 75(1) of the FSR Act amended s 6F of the CFA Act to provide:

The Parliament recognises that the Authority is a fully volunteer fire fighting service under the command and control of a paid Chief Officer and supported where necessary by other paid staff. The Parliament recognises that this does not preclude the Authority from employing paid staff in the role of Chief Officer, Deputy Chief Officer and Chief Executive Officer or from entering into a secondment agreement (within the meaning of section 25C(10) of the Fire Rescue Victoria Act 1958).

6    The FSR Act in s 4(1) contains the following relevant definitions:

career firefighter means a person who is or was employed by a fire service as a firefighter in a role in which firefighting duties are or were a substantial portion;

firefighter means—

(a)    a career firefighter; or

(b)    a volunteer firefighter;

firefighting means exposure to the hazards of a fire scene, including extinguishing, controlling or preventing the spread of fires;

volunteer firefighter means a person who performs or has performed firefighting duties, in a role in which firefighting duties are or were a substantial portion, and who receives or received no remuneration for the performance of those duties.

7    One of the functions of FRV introduced by s 28(2)(bb) of the FSR Act was:

to provide operational and management support to the [CFA] in consultation with and as agreed by the Authority, to meet the Authority’s objective under section 6B of the [CFA Act], including support to maintain, strengthen and encourage the capability of volunteers…

8    Section 50 of the FSR Act introduced a new s 25B(3) into the Fire Rescue Victoria Act 1958 (Vic) (FRV Act), which relevantly provides:

[FRV] may enter into a secondment agreement (within the meaning of section 25C(10)) with the [CFA] under which officers or employees of [FRV] are made available (whether on a full-time, part-time or other basis) to the [CFA].

9    The CFA and FRV entered into a Secondment Agreement dated 31 October 2020 (Secondment Agreement). Clause 3 of the Secondment Agreement provides:

3.    Operational Support to CFA to be provided by paid staff of FRV

3.1.    All employees providing, or directed to provide, Operational Support to CFA shall be FRV employees providing Services in accordance with a Service Level Deed or Secondees provided pursuant to this Secondment Agreement.

3.2.    CFA agrees that any work, duty or roles that would be covered by the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2016 - Final and/or the Operational Staff Employment, Conditions and Entitlements Policy and associated documents, as they existed at 1 January 2020, if such Agreements applied to CFA and the work was performed by an employee, shall only be performed by employees of FRV providing Services to CFA in accordance with a Service Level Deed or by Secondees provided pursuant to this Secondment Agreement.

3.3.    For the avoidance of doubt, nothing in this Agreement limits the power of CFA to appoint, transfer, or remove officers and employees pursuant to s 17(c) of CFA Act to perform work which is not Operational Support save that CFA shall not at any time direct any such officers or employees to perform Operational Support.

10    Clause 1.1. defines “Operational Support” in the following terms:

Operational Support means any work, duties or roles, including the provision of operational and management support, contemplated under the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2016 - Final and/or the Operational Staff Employment, Conditions and Entitlements Policy and associated documents, as they existed at 1 January 2020.

11    The applicant informed the Court that the Operational Staff Employment, Conditions and Entitlements Policy and associated documents (as they existed at 1 January 2020) were consistent with the terms of a proposed enterprise agreement, agreed as between the UFU and CFA in 2016 but not approved by the FWC pursuant to Part 2-4 of the Fair Work Act.

12    Section 17 of the CFA Act provides (emphasis added):

Subject to section 6F, the Authority may from time to time appoint and may at any time transfer, suspend or remove—

(a)    a Chief Officer; and

(b)    such number of Deputy Chief Officers as the Authority considers necessary; and

(c)    such other officers and employees at the classifications and in the numbers as the Authority considers necessary.

13    Relevantly, ss 20 and 20AAA of the CFA Act provide:

20     General duty of Authority

The duty of taking superintending and enforcing all necessary steps for the prevention and suppression of fires and for the protection of life and property in case of fire and the general control of all stations and of all brigades and of all groups of brigades shall, subject to the provisions of this Act, so far as relates to the country area of Victoria be vested in the Authority.

20AAA Duty to assist in major emergency

(1)    In addition to any other of its duties and functions under this Act, the Authority must assist in the response to any major emergency occurring within Victoria.

 (2)    In this section—

…

major emergency means—

  (a)    a large or complex emergency (however caused) which—

(i)    has the potential to cause or is causing loss of life and extensive damage to property, infrastructure or the environment; or

(ii)    has the potential to have or is having significant adverse consequences for the Victorian community or a part of the Victorian community; or

(iii)    requires the involvement of 2 or more emergency agencies to respond to the emergency; or

(b)    a major fire within the meaning of the Emergency Management Act 2013.

14    The CFA employs employees to enable it to perform its functions. These employees include approximately 1,072 professional, technical and administrative staff (PTA staff). The employment of PTA staff is covered by the 2020 PTA Agreement. The 2020 PTA Agreement also covers the CFA and the following unions (which were bargaining representatives for the agreement):

(a)    the Australian Municipal, Administrative, Clerical and Services Union (Victorian and Tasmanian Authorities and Services Branch) (ASU) (representing the vast majority of PTA staff);

(b)    Professionals Australia; and

(c)    the UFU.

15    Clause 28 of the 2020 PTA Agreement is entitled “Incident Management Support” and relevantly provides (emphasis added):

28.1    Incident Management Support

28.1.1     The parties acknowledge the active participation of many PTA staff in the provision of Incident Management Support. This participation supports CFA’s ability to respond to an increasing variety of operational events. The parties also acknowledge PTA staff are a valued component of providing support to Incident Management.

(a)    The parties agree that the involvement of PTA staff in these support roles is not to be in substitution for the continued participation of CFA Operational Staff.

(b)    For the avoidance of doubt, these PTA staff roles will be support roles only. Roles which are currently or which can be performed by operational firefighters will continue to be performed by operational firefighters. Employees covered under this agreement will only provide support to operational firefighters in those roles. Nothing in this clause is intended to provide for incident management support employees to perform roles or fill positions that are currently performed or held by operational firefighters.

(c)    PTA staff will not perform the roles of Incident Controller, Deputy Incident Controller and Operations Officer as defined at clause 28.8.1 of this agreement and the role of Deputy Operations Officer. The performance of the roles of Planning Officer and Deputy Planning Officer by PTA staff will be the subject of consultation between the UFU and the CFA. This exclusion applies to PTA staff only in their capacity as an employee and does not affect their ability to perform such roles in their capacity as volunteers.

(d)    This clause shall not prevent volunteers in the CFA from providing the services normally provided by such volunteers as volunteers, without remuneration. For the purposes of this clause remuneration means any form of payment in money or in kind made to any person, persons, organisation, company, contractor, consultant etc. This does not include reimbursement to volunteers for out of pocket expenses incurred by them while undertaking their volunteer duties.

(e)    Notwithstanding the exclusions in 28.1.1.c above, those employees covered by this agreement who have been qualified to perform the roles described in 28.1.1.c, as at 28 November 2016 may continue to be called on by the Chief Officer to perform those roles if necessary.

28.1.2     The level of time commitment an Employee undertakes to provide incident management support is to be mutually agreed between the Employee and CFA. This includes both home and away deployments.

28.1.3     The terms of this part apply to involvement in emergency activities where the Australasian Inter-service Incident Management System (AIIMS) incident control system is used to manage the incident, or in jurisdictions or situations as designated by CFA. In these circumstances, the terms of this part will prevail to the extent of any difference over other provisions of the agreement.

28.1.4     For clarification, these provisions will apply when an Employee is performing emergency related work as distinct from their ordinary duties and as directed by the designated Duty Officer.

28.1.5     The incident management support provisions of this clause cease to apply when, as determined by the Employer, incident management support work becomes of a routine nature and is integrated with normal daily operations.

…

28.6    Role Classification

28.6.1    Subject to clause 28.1.1, Employees can perform any incident management support role within the [AIIMS] subject to the possession of competencies, endorsements and/ or accreditation for that role.

28.6.2    Employees will work to the role statement for the role as determined by CFA.

28.6.3    Employees will be paid according to the PTA classification level determined for the role or the classification level for the employee’s substantive role, whichever is the greater when an employee is either:

28.6.3.1    Positioned to undertake and perform a particular role for the purposes of incident management support (including readiness arrangements in accord with the appropriate Joint Standard Operating Procedure) or

28.6.3.2    Participating in training and development of others associated with their incident management support role.

28.6.4    The classification attached to an incident management support role, new or existing, will be determined by CFA, by reference to the [AIIMS].

28.6.5    Subject to clause 28.1.1, the classification of roles shall be reviewed as and when there is any amendment to the [AIIMS] or when CFA changes a practice that affects current or future incident management support roles.

16    The CFA proposes to make a new enterprise agreement (Proposed PTA Agreement) to replace the 2020 PTA Agreement. Clause 29 of the Proposed PTA Agreement provides:

29.1    Incident Management.

29.1.1    The active participation of many PTA staff in Incident Management roles strengthens CFA’s ability to respond to an increasing variety of operational events. The parties acknowledge that PTA staff possess a variety of qualifications and experience from their current, previous and volunteer roles. PTA staff may perform Incident Management roles consistent with their skills and qualifications.

29.1.2    The level of time commitment an Employee undertakes to provide incident management is to be mutually agreed between the Employee and CFA. This includes both home and away deployments.

29.1.3    The terms of this part apply to involvement in emergency activities where the [AIIMS] incident control system is used to manage the incident, or in jurisdictions or situations as designated by CFA. In these circumstances, the terms of this part will prevail to the extent of any difference over other provisions of the agreement.

29.1.4    For clarification, these provisions will apply when an Employee is performing emergency related work as distinct from their ordinary duties and as directed by an authorised manager or the designated Duty Officer.

29.1.5    The incident management provisions of this clause cease to apply when, as determined by the Employer, incident management work becomes of a routine nature and is integrated with normal daily operations.

17    The limitations on PTA staff performing (on a paid basis) support roles only and the preclusion of PTA staff from performing the roles of Incident Controller, Deputy Incident Controller and Operations Officer and the role of Deputy Operations Officer are removed in the new clause.

18    The Court was provided with a letter sent on behalf of the ASU dated 17 June 2022 stating that the ASU has ascertained that its members strongly support the removal of restrictions on the performance of incident management roles in the 2020 PTA Agreement.

19    Before commencing bargaining for an enterprise agreement, the CFA was required by the Victorian Government Wages Policy to obtain (and did obtain) approval from the Victorian Government.

20    Other events leading up to the vote on the Proposed PTA Agreement included:

(a)    On 10 June 2021, the first bargaining meeting was held with the bargaining representatives, which included the bargaining representatives for the ASU, Professionals Australia and the UFU.

(b)    Throughout June to November 2021, approximately 35 bargaining meetings were held.

(c)    On 5 November 2021, a comprehensive settlement proposal was put by the CFA to the Unions and each of the bargaining representatives.

(d)    On 11 November 2021, the UFU advised that it did “not agree to CFA’s proposal”.

(e)    By letter dated 2 December 2021, the CFA advised the UFU that it proposed to seek final approval from the Victorian Government to proceed with a ballot of employees in respect of the Proposed PTA Agreement.

(f)    Later on 2 December 2021, the UFU lodged a bargaining dispute application in the FWC in relation to the CFA’s proposal to put the Proposed PTA Agreement to a ballot. That dispute was unable to be resolved.

(g)    On 25 March 2022, the UFU lodged a further bargaining dispute application in the FWC in relation to the CFA’s proposal to seek approval to put the Proposed PTA Agreement to a ballot. That dispute was unable to be resolved.

(h)    On 10 May 2022, Commissioner Lee conducted a conference in relation to the new dispute, at which the UFU, the ASU and the CFA were present. The dispute was unable to be resolved.

(i)    On 3 June 2022, the CFA gave notice to its employees and bargaining representatives pursuant to s 180(3) of the Fair Work Act that it proposed to put the Proposed PTA Agreement to PTA staff for a vote between 20 June 2022 and 27 June 2022 by way of electronic ballot.

Statutory Context

21    Under the Fair Work Act, an enterprise agreement applies to an employer, employee or employer organisation if the agreement is in operation, the agreement covers the employer, employee or employer organisation, and no other provision of the Fair Work Act provides, or has the effect, that the agreement does not so apply: s 52(1)(a). An enterprise agreement approved by the FWC operates from no earlier than seven days after the agreement is approved: s 54(1). If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement: s 185(1). In the present case, the enterprise agreement will be made when a majority of those employees who cast a valid vote approve the agreement: s 182(1). The FWC must approve the agreement if, amongst other things, the agreement has been “genuinely agreed” to by the employees covered by the agreement: s 186(2)(a). An enterprise agreement has been “genuinely agreed” if the FWC is satisfied that the circumstances in s 188 are present. These circumstances include satisfying certain pre-approval steps.

22    Pursuant to s 172 of the Fair Work Act, an enterprise agreement can only be made in accordance with Part 2-4 if the agreement is about “permitted matters”. Relevantly, the “permitted matters” include:

(a)    matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement; and

(b)    matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement.

The Originating Application

23    The UFU’s complaint is that the CFA is precluded from making an enterprise agreement in so far as that agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement for two reasons:

(1)    As an Authority constituted under the CFA Act, its characteristics and powers are limited by that Act. The CFA was not authorised by the CFA Act (or any other applicable statute) to make an enterprise agreement that contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(2)    The entry by the CFA and its employees into an enterprise agreement containing a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement would constitute a breach by the CFA of the Secondment Agreement.

24    The UFU also contended that, because the CFA is precluded from making an enterprise agreement that contained a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement, the Proposed PTA Agreement is not about “permitted matters” within the meaning of s 172 of the Fair Work Act in so far as it contains such a clause.

25    By an originating application filed on 16 June 2021, the UFU seeks declarations to the effect described in paragraphs [23] and [24] and an injunction prohibiting and restraining the CFA from:

(a)    making or proposing to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as that agreement contains a clause in the same form or effect as clause 29.1 of the Proposed PTA Agreement;

(b)    requesting its employees to approve the Proposed PTA Agreement under s 181 of the Fair Work Act while it contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

26    The declarations sought at final hearing are:

(1)    A declaration pursuant to ss 562 and 564 of the Fair Work Act that the CFA is not authorised by the CFA Act or any other applicable statute to make or propose to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(2)    Further or in the alternative, a declaration in the accrued jurisdiction of the Court, that the CFA is not authorised by the CFA Act or any other applicable statute to make or propose to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(3)    A declaration pursuant to ss 562 and 564 of the Fair Work Act that it is in breach of the Secondment Agreement made by the CFA, the Chief Officer of the CFA, FRV and Fire Rescue Commissioner pursuant to ss 25B and 25C of the FRV Act, for the CFA to make or propose to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(4)    Further or in the alternative, a declaration in the accrued jurisdiction of the Court, that it is in breach of the Secondment Agreement for the CFA to make or propose to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(5)    A declaration pursuant to ss 562 and 564 of the Fair Work Act and/or in the accrued jurisdiction of the Court that, by reason of one or more of the declarations in orders 1 to 4, the CFA is precluded from making or proposing to make an enterprise agreement under Part 2-4 of the Fair Work Act with its employees in the form or to the effect of the Proposed PTA Agreement in so far as the enterprise agreement contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

(6)    A declaration pursuant to ss 562 and 564 of the Fair Work Act that the Proposed PTA Agreement is not about permitted matters within the meaning of s 172 of the Fair Work Act so far as it contains a clause in the same form or to the same effect as clause 29.1 of the Proposed PTA Agreement.

27    By the originating application, the UFU also sought an interlocutory injunction in the form of an order that until the final determination of this proceeding or further order of the Court, the CFA be enjoined from requesting that its employees approve the Proposed PTA Agreement under s 181 of the Fair Work Act. At the conclusion of the interlocutory hearing, the parties agreed that the terms of the proposed interlocutory injunction were not appropriate given that the employees of the CFA had already been requested to approve the Proposed PTA Agreement and that if the Court were to determine that an interlocutory injunction ought to be granted, the parties would address the Court on the form of the order.

Applicable Principles governing Interlocutory Injunctive Relief

28    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. To qualify for the relief that it seeks, the applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]–[72] (per Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]).

29    An applicant for an interlocutory injunction needs to establish a prima facie case that has a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The strength of the likelihood depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: O’Neill 227 CLR 57 at [65]; Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 at [45]–[46] (per Bromberg J); Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee [2012] FCA 988 at [17]–‍[18] (per Tracey J).

30    Whether the applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. “The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience”: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67], citing Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 at [15] (per Sundberg J). “An apparently strong claim may lead a Court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464 at 472 (per Woodward J, Smithers J agreeing at 467, Sweeney J agreeing at 469); see also Samsung Electronics 217 FCR 238 at [67].

31    It may also be relevant to inquire whether the applicant will suffer irreparable harm for which damages are not an adequate remedy. This is sometimes expressed as a third requirement, additional to the two main inquiries: see, eg, Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (per Mason ACJ); O’Neill 227 CLR 57 at [19] (per Gleeson CJ and Crennan J). It is sometimes expressed as a component of the second inquiry, namely where the balance of convenience lies: Samsung Electronics 217 FCR 238 at [61] (per Dowsett, Foster and Yates JJ); GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; (2013) 103 IPR 487 at [81(h)].

32    The ultimate foundation for the exercise of the discretion to grant interlocutory relief in the form of an injunction needs to be kept steadily in mind. The High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), citing Tait v The Queen (1962) 108 CLR 620 said:

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.

The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the final hearing and to prevent the practical destruction of that right before there has been the opportunity to have its existence finally established: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [9]–[12] (per Gleeson CJ), citing Jordan, Frederick, Chapters on Equity in New South Wales (6th ed, 1947) 146.

Submissions of the Parties

Submissions of UFU

33    On behalf of the UFU, it was submitted that the legislative history relating to the fire services reform in Victoria “makes clear” that those reforms were “intended to and had the effect of depriving the CFA of the statutory authority and power to employ employees engaged in operational firefighting” (emphasis added). It was submitted that proposed clause 29 is beyond the statutory authority of the CFA (as conferred upon it by the CFA Act) because it enables the CFA to have its PTA staff perform operational firefighting work. The conduct sought to be enjoined is not the making of the Proposed PTA Agreement in its entirety, but the inclusion of clause 29.1.

34    The UFU further submitted that the effect of the Secondment Agreement was to prohibit the CFA from engaging or directing any person, other than secondees from FRV or FRV employees, to perform Operational Support work (discussed further at paragraph [56] below). The CFA’s conduct in including terms in the Proposed PTA Agreement in breach of its obligations under the Secondment Agreement is unlawful.

35    The UFU submitted that the terms of the Proposed PTA Agreement providing for CFA employees to perform Incident Management roles are not about “permitted matters” within the meaning of s 172 of the Fair Work Act. This was said to be so because:

(a)    Where an employer is a statutory authority, terms of a proposed enterprise agreement which it cannot lawfully make cannot “pertain [to] the relationship” between it and employees who will be covered by the agreement; and

(b)    Terms of a proposed enterprise agreement that are in breach of contractual obligations made under statute, similarly do not “pertain” to the employment relationship.

Submissions of CFA

36    The CFA submitted that:

(a)    The Court does not have jurisdiction to make the orders sought by the UFU as this is not a matter arising under the Fair Work Act. It is properly characterised as an issue concerning the proper construction of a state Act, namely, the CFA Act, and a contract, a contract to which the UFU is not a party. The fact that there is a proposed agreement under the Fair Work Act does not transform this dispute into one that arises under that Act.

(b)    In so far as the issue of prima facie case is concerned, s 6F of the CFA Act does not impose any obligation on the CFA of the kind alleged by the UFU. Further, the UFU cannot seek enforcement of a Secondment Agreement to which it is not a party. In the absence of a right to relief at trial, the UFU is not entitled to interlocutory relief.

(c)    The balance of convenience weighs heavily against the application. In this respect, it is relevant to take into account the delay associated with this application.

37    For the reasons set out below, the application for interlocutory relief will be dismissed.

Disposition

Jurisdiction of the Court

38    The Court’s jurisdiction to grant the relief sought is based on s 562 of the Fair Work Act. That section provides:

Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

39    The issue of the Court’s jurisdiction in this matter was the subject of limited argument. The UFU contended that the Court has jurisdiction because the UFU’s complaint relates to the CFA’s conduct and actions in relation to the making of an enterprise agreement under Part 2-4 of the Fair Work Act and is therefore a matter arising under the Fair Work Act. The relief sought relates to actions in the course of making an enterprise agreement under s 182 of the Fair Work Act. Enterprise agreements are industrial instruments made under the Fair Work Act and the complaint made in this case relates to that activity.

40    As set out above, the UFU’s complaint concerns three matters:

(a)    the construction of the CFA Act;

(b)    the construction of the Secondment Agreement to which it is not a party; and

(c)    whether, by reason of those two matters (which are said to go to the lawfulness of the CFA’s conduct), the enterprise agreement containing clause 29.1 can be properly made under the Fair Work Act.

41    The UFU contends it is sufficient to ground the jurisdiction of this Court that those issues “play out in relation to the making of an enterprise agreement”.

42    The UFU submitted that “out of an abundance of caution”, the UFU also sought to invoke the accrued jurisdiction of the Court in relation to the issues of whether the CFA is acting in excess of power or authority under the CFA Act and/or in breach of its obligations under the Secondment Agreement. At the hearing, the UFU conceded that if it did not succeed on establishing jurisdiction by reason of s 562 of the Fair Work Act, it was not necessary for the Court to consider the question of accrued jurisdiction. As the CFA submitted, if the UFU did not succeed on its principal grounds of jurisdiction, it was difficult to see a sensible basis upon which the Court would find that there is accrued jurisdiction in respect of these matters.

43    The identification of a “matter” for the purposes of s 562 proceeds by reference to High Court authority about the identification of a “matter” for the purposes of engaging federal jurisdiction under the Constitution: Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) [2012] FCAFC 103; (2012) 203 FCR 430 at [28] (per Flick J); Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 at [45] (per Tracey, Wigney and O’Callaghan JJ).

44    The reach of the terms “matter” and “arising under” as constitutional expressions is explained in decisions such as Fencott v Muller (1983) 152 CLR 570 at 608–610 and LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581: Patrick Stevedores 195 CLR 1 at [25].

45    In Hobart International Airport v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214 at [26], Kiefel CJ, and Keane and Gordon JJ, quoting CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at [27], observed that “‘[m]atter’ has two elements: ‘the subject matter itself as defined by reference to the heads of jurisdiction, and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’”. In some cases, in federal jurisdiction, the issue of whether there is a justiciable controversy may not be able to be separated from the issue of whether the applicant has standing to have the dispute determined and to seek the declaratory relief sought: see, eg, Hobart International [2022] HCA 5 at [30]–‍[31].

46    In so far as subject matter is concerned, a matter need not be a proceeding under the Fair Work Act in order to be a matter arising under that Act: Felton v Mulligan (1971) 124 CLR 367 at 382–3 (per Menzies J). A matter may properly be said to arise under the Fair Work Act if the right or duty in question owes its existence to the Fair Work Act or depends upon the Fair Work Act for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law: Felton 124 CLR at 387 (per Windeyer J), quoting R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (per Latham CJ). Equally, there is a matter arising under the Fair Work Act if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is the Fair Work Act: Felton 124 CLR at 408 (per Walsh J).

47    The Court’s jurisdiction to grant relief in this matter is said by the UFU to rest upon the fact that the declarations sought relate to the conduct and actions of the CFA in relation to the making of an enterprise agreement that contains a clause with a particular form and effect, and an enterprise agreement is an agreement that is governed by Part 2-4 of the Fair Work Act. The essence of the UFU’s contention is that the very subject of the issue between the parties is a proposed enterprise agreement to be made under the Fair Work Act.

48    There are difficulties with that proposition in so far as it concerns the UFU’s contentions relating to the construction of the CFA Act and a potential breach by the CFA of the Secondment Agreement.

49    The capacity of the CFA to enter into the Proposed PTA Agreement does not owe its existence to the Fair Work Act but turns on the construction of the CFA Act. The power of the CFA to enter into the Proposed PTA Agreement (in so far as it contains clause 29.1) is not based on the Fair Work Act. At most, it might be said that the capacity of the CFA to enter into the Proposed PTA Agreement may affect the enforcement of that agreement under the Fair Work Act.

50    The connection between the Secondment Agreement and the Fair Work Act is even more tenuous. In so far as the contentions relating to the Secondment Agreement are concerned, the UFU is seeking to enforce an agreement between the CFA and FRV, neither the existence of which nor its enforcement depend upon the Fair Work Act. In so far as the contentions relating to the Secondment Agreement are concerned, it appears to me that the Fair Work Act is merely “lurking in the background”, to use the words of Windeyer J in Felton 124 CLR at 391, quoting Cardozo J of the Supreme Court of the United States of America in Gully, State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109 at 117. Furthermore, as set out below, there are issues concerning the standing of the UFU to seek a declaration in respect of the Secondment Agreement to which it is not a party.

51    I am, however, satisfied that the Court has jurisdiction in this matter because by the third of its contentions, the UFU invokes an argument about the construction and scope of s 172 of the Fair Work Act. Because s 562 of the Fair Work Act confers jurisdiction on the Federal Court in relation to any matter arising under the Act, it may be sufficient if at least one of the component claims arises under the Fair Work Act. As the Court said in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; (2015) 235 FCR 366 at [16] (per Dowsett, Tracey and Katzmann JJ, citing Melbourne Stadiums Limited v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at 252–4):

Even if an applicant makes claims in a proceeding which are founded on common law or other statutory causes of action, the proceeding remains one in relation to a matter arising under the [Fair Work] Act provided that at least one of its claims arises under that Act. 

Strength of the Prima Facie Case

52    The UFU’s case regarding the Proposed PTA Agreement being beyond power is not a strong one.

53    First, it is not clear that the incident management work will necessarily involve operational firefighting. The definitions in the FSR Act of “career firefighter”, “volunteer firefighter” and “firefighting” convey a notion of exposure to the hazards of a fire scene. Whilst it may be accepted that operational firefighters perform or hold incident management support roles, it is far from clear that the performance of those roles, which appear to be managerial and administrative in nature, involve the performance of firefighting duties. Indeed, incident management work may not be related to fires at all but may relate to another sort of “major emergency” (as defined in s 20AAA of the CFA Act).

54    Second, the Court notes that, by clause 28.1.1(e), the 2020 PTA Agreement itself permitted PTA staff who had been qualified to perform incident management roles as at 28 November 2016 to continue to be called upon to perform those roles. It is not clear how clause 28.1.1(e) of the 2020 PTA Agreement can be accepted to be intra vires whilst maintaining clause 29.1 of the Proposed PTA Agreement is ultra vires.

55    Third, even if it were accepted that the CFA had no statutory authority to have its staff perform incident management roles which constituted operational firefighting, I am doubtful whether clause 29.1 results in the CFA staff in fact performing such roles. Clause 29.1 is facilitative only. As the UFU put it in oral submissions, it might be said to “[open] the door”. Whether the CFA staff in fact perform duties which the UFU contends are prohibited duties is a separate issue. I am doubtful whether anything in the CFA Act precludes the CFA from being party to an agreement which may permit, but does not compel, CFA staff to perform incident management duties. At most (and subject to the reservations expressed above), the CFA Act may limit the manner in which the CFA is able to implement that agreement if the incident management duties involve operational firefighting. It is difficult to see the basis on which it might be said that the Proposed PTA Agreement (or clause 29.1) per se is ultra vires the CFA. It may be questionable whether agreeing to a clause is ultra vires the power of the CFA because the clause does not expressly preclude a limitation on its performance that may possibly be implied by the provisions of the CFA Act.

56    The UFU’s case in relation to the Secondment Agreement is also not a strong one. It suffers from the same difficulty. It is hard to see how the existence of clause 29.1, being in facilitative terms, of itself breaches the Secondment Agreement. Any breach of the Secondment Agreement might occur only if the PTA staff in fact perform Incident Management roles which result in the performance of Operational Support (as defined in the Secondment Agreement). The term “Operational Support” is defined by reference to documents that are not before the Court and it is therefore not possible to express a view on the likelihood of the performance of Incident Management roles constituting the performance of Operational Support. In any event, any breach of the Secondment Agreement would not result from the existence of clause 29.1 itself, but rather the manner of its performance.

57    More fundamentally, there are serious questions concerning whether the UFU has standing to seek a declaration about the meaning and effect of the Secondment Agreement to which it is not a party. The UFU submitted that, because of the UFU’s “direct involvement” with the proposed enterprise agreement, it was not “an ‘outsider’ to the Secondment Agreement in any rational sense of the word” — invoking the language in CGU Insurance 259 CLR 339 at [96] (per Nettle J) and which was cited in Hobart International [2022] HCA 5 at [35] (per Kiefel CJ, Keane and Gordon JJ, Gageler and Gleeson JJ agreeing at [69]–[76]).

58    As was observed by Kiefel CJ, Keane and Gordon JJ in Hobart International [2022] HCA 5 at [32], “[w]hat is required to establish ‘standing’ varies depending on the relief sought”. Here, the UFU seeks declaratory relief. Although there is no requirement that an applicant for declaratory relief have a cause of action in order to obtain a declaration, the UFU must have a “sufficient” or “real” interest in obtaining the relief: Hobart International [2022] HCA 5 at [33]. Their Honours Kiefel CJ, Keane and Gordon JJ continued at [35]:

Although lack of privity is a factor relevant to standing and a reason for a court approaching the question of the standing of an outsider with considerable caution, an outsider to a contract may, “for other reasons” — what might be described as “exceptional circumstances” — have a “sufficient” or “real” interest to seek declaratory relief as to the meaning and effect of a contract between contracting parties.

59    A mere commercial interest in obtaining declaratory relief about the meaning and effect of a contract to which an applicant for declaratory relief is not a party would not, on its own, give rise to a “sufficient” or “real” interest: Hobart International [2022] HCA 5 at [41]. That different minds can come to different conclusions on what constitutes a sufficient or real interest for this purpose can be seen in the decision in Hobart International itself, where Edelman and Steward JJ dissented on this point only (at [83]).

60    In my view, there are a number of obstacles which the UFU will face, at trial, in demonstrating that it has standing to seek the declaration about the meaning and effect of the Secondment Agreement. It is not clear to me how the UFU’s involvement in the negotiation of the Proposed PTA Agreement gives rise to a sufficient or real interest in the UFU in relation to the construction of the Secondment Agreement.

61    I am also not persuaded that the UFU has a strong case based on its third submission. First, it is difficult to see how proposed clause 29.1 is not about a matter pertaining to the relationship between the CFA and its PTA staff. The clause relates to the roles which may possibly be performed by PTA staff under the Proposed PTA Agreement. Second, given that the third submission depends on the CFA succeeding on either or both of its other grounds, the assessment of the strength of the UFU case based on this third submission cannot be separated from the assessment of the strength of the previous two grounds.

62    For these reasons, I do not accept that the UFU has demonstrated that its case has a sufficient likelihood of success to justify the interlocutory injunction sought.

Balance of Convenience

63    In any event, in my view, the balance of convenience does not favour the grant of the interlocutory injunction sought by the UFU.

64    The UFU submitted that given the strength of its prima facie case, a less compelling case in relation to the balance of convenience is required. Given that I am not satisfied that the UFU has a strong prima facie case, I do not accept that submission.

65    The UFU submitted that, in any event, there is a compelling case in respect of the balance of convenience. Clause 29.1 was said by the UFU to reverse the corresponding clause in the current enterprise agreement and in so doing, “unravels a significant part of the fire service reforms established by Government”. The UFU contended that it would be open to the CFA to put forward a proposed enterprise agreement without the offending clause and, if the CFA were successful at trial of this matter, it could then add clause 29 to the agreement by a variation. On the other hand, if the CFA were not enjoined from progressing the Proposed PTA Agreement and if it were approved by the FWC, should the UFU succeed at trial “the ability of the Court to effectively exercise its jurisdiction will become highly problematic”.

66    The UFU relied upon the affidavits of four firefighters, each of whom deposed that they would suffer prejudice if clause 29.1 becomes part of the Proposed PTA Agreement. The prejudice was in the form of the detrimental effect on their employment by depriving them of work which they had performed and which allowed them to gain skills, experience and qualifications. The firefighters also expressed concern about “potential prejudice to safety”.

67    The UFU further submitted that if clause 29.1 is not authorised or is in breach of the secondment agreement, the employees voting on the Proposed PTA Agreement have not been told and there is a potential prejudicial effect on them because they will have been put in a position of voting on something while the Court is seized of the argument.

68    I am not satisfied that the balance of convenience supports the grant of interlocutory relief to stop the completion of the vote. This application was brought on an urgent basis because the ballot period is due to expire on 27 June 2022. However, the Proposed PTA Agreement will not become operative before approval by the FWC. On the UFU’s own submission, any potential difficulties arise only if the Proposed PTA Agreement were to become operative. The agreement becomes operative only if the FWC approves it.

69    The UFU will not suffer irreparable loss if the interlocutory injunction sought is not granted. This is because it will be open to the UFU to challenge the validity of the making of the enterprise agreement after the result of the ballot is known and, assuming a vote in favour of the agreement, before the CFA registers the agreement with the FWC and before the FWC itself. Once an application for approval is made to the FWC, the UFU will have the opportunity to make submissions opposing that approval. The jurisdiction of the FWC to approve an enterprise agreement is predicated on the existence of such an agreement. It is open to the UFU to seek to raise issues concerning the existence of the enterprise agreement or any part of it before the FWC. The UFU’s submission that such a course is “hugely unattractive and inefficient” is not accepted. As Bromberg J observed in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at [74]:

… the [FWC]’s role in relation to the scrutiny of agreements as at the time of approval is immense. The legislature has invested in the [FWC] great responsibility in ensuring that the process of making the agreement has been satisfactory and that its content complies with the detailed requirements of the [Fair Work] Act.

70    I am satisfied that issues concerning CFA employees being potentially misled are matters that the FWC may have regard to in determining whether it is satisfied that the agreement has been genuinely agreed to by the employees covered by that agreement (under s 186(2) of the Fair Work Act, when read with s 188 and the requirements of s 180(5)). The grant of interlocutory relief does not affect the ability of UFU to raise such concerns.

71    The period between the time of application to the FWC for approval and the grant of approval is at least several weeks. If it is necessary, a judicial determination of the legal positon can be sought prior to the FWC granting approval. The statutory process by which the Proposed PTA Agreement is approved and becomes operative does not warrant the grant of an interlocutory injunction at this stage.

72    It is difficult to see how the career firefighters will suffer imminent prejudice if the vote is allowed to proceed. The prejudice contended for appears to be in the nature of longer term effects on career progression rather than a matter of immediate urgency. The concern was not immediate but, to use the words of Senior Counsel for the Applicant, “down the track, once the door has opened”. In any event, it is difficult to see how the making of an agreement which is not yet operative inflicts any such detriment. If the impugned part of the agreement is in fact ultra vires, the clause will never come into effect.

73    I am also not satisfied of an immediate potential threat to public safety. It is not bushfire season and the Proposed PTA Agreement will not become operative as a result of the vote. Furthermore, clause 29.1 only permits PTA staff to perform incident management duties which are consistent with their skills and qualifications.

74    I am not satisfied that it is readily open to the CFA to mitigate the progress of the making of the Proposed PTA Agreement simply by recasting the agreement, putting the amended agreement to a vote and then, if successful at trial in this matter, seeking to vary that agreement by reinstating clause 29.1. Once an enterprise agreement is made that does not contain clause 29, it appears to me that the subject matter of the present dispute would be destroyed; there would be no proposed enterprise agreement in existence that contains clause 29. It is difficult to see how the CFA could be successful at trial of this matter once the subject matter of the proceedings is superseded by a new enterprise agreement. Furthermore, the process of making the amended agreement which did not contain the impugned clause would potentially reopen the basis on which the Proposed PTA Agreement had been negotiated and require all the pre-approval steps to be recommenced. The Proposed PTA Agreement is intended to replace an expired enterprise agreement, offering improved terms and conditions for more than 1,000 CFA employees. The CFA employees have an interest in progressing the making of that agreement and do not appear to me to benefit from delay.

75    The CFA raised an issue of delay on the part of the UFU in bringing these proceedings. I am not satisfied that the delay is a significant factor in the present case. Although the UFU appears to have been aware of the changes in the limitation on the potential performance by PTA staff of incident management roles in December 2021 and that, from 20 May 2022, the matter was intended to be put to a vote, the parties continued to engage until the end of the working week ending 11 June 2022. At the same time, for the reasons given above, I am not satisfied that there is a matter of urgency that requires interlocutory relief.

Conclusion

76    Given the weak prima facie case and the balance of convenience, I am not satisfied that the Court’s discretion to grant interlocutory injunctive relief should, in this case, be exercised.

77    The interlocutory application is dismissed. There shall be no order as to costs.

Associate:

Dated:    23 June 2022