United Firefighters' Union of Australia v Country Fire Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] FCA 727
• Date: 23 June 2022
• Court: Federal Court

Federal Court of Australia

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

File number(s):	VID 332 of 2022
Judgment of:	HESPE J
Date of judgment:	23 June 2022
Catchwords:	PRACTICE AND PROCEDURE – application for interlocutory injunction – where interlocutory application sought to enjoin respondent from completing a ballot in relation to a proposed enterprise agreement – whether prima facie case has sufficient likelihood of success – whether balance of convenience favours a grant of injunctive relief
Legislation:	Constitution s 76(ii) Country Fire Authority Act 1958 (Vic) ss 6F, 20, 20AAA Fair Work Act 2009 (Cth) ss 52, 54, 172, 181, 182, 185, 186, 188, 562, 564 Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic) ss 1, 4, 23, 27, 28, 50, 75 Fire Rescue Victoria Act 1958 (Vic) ss 25B, 25C
Cases cited:	Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) (2012) 203 FCR 430 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; (2015) 235 FCR 366 Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339 Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee [2012] FCA 988 Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; (2013) 103 IPR 487 Gully, State Tax Collector for Mississippi v First National Bank in Meridian (1936) 299 US 109 Hobart International Airport v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 Melbourne Stadiums Limited v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 Tait v The Queen (1962) 108 CLR 620 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	77
Date of hearing:	17 June 2022
Counsel for the Applicant:	Mr H Borenstein QC with Mr J McKenna
Solicitor for the Applicant:	Slater and Gordon
Counsel for the Respondent	Mr C O’Grady QC with Mr M Garozzo
Solicitor for the Respondent	Clayton Utz

ORDERS

		VID 332 of 2022
BETWEEN:	UNITED FIREFIGHTERS’ UNION OF AUSTRALIA Applicant
AND:	COUNTRY FIRE AUTHORITY Respondent

order made by:	HESPE J
DATE OF ORDER:	23 JUNE 2022

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...