Application by Victorian Ambulance Union Incorporated
[2025] FWC 616
•28 FEBRUARY 2025
| [2025] FWC 616 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.608—Referring questions of law to the Federal Court
Application by Victorian Ambulance Union Incorporated
(ADM2025/5)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 28 FEBRUARY 2025 |
Referral of a question of law to the federal court – application dismissed.
Background
On 4 April 2024, Victorian Ambulance Union Incorporated (VAU Inc) filed an application pursuant to s 18(b) of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) for registration as an organisation of employees (matter D2024/2). On 3 March 2024, the Commission published a gazette notice and the application on its web page, the former of which stipulated an objection period of 35 days. The following parties objected to VAU Inc’s application:
Health Services Union
United Firefighters’ Union of Australia
The Victorian Branch of the Australian Nursing and Midwifery Federation
United Workers Union (UWU)
Australian Municipal, Administrative, Clerical and Services Union.
The matter was allocated to Deputy President Bell for determination. On 6 September 2024, the Deputy President, on request from VAU Inc and the UWU, issued an order staying the proceedings in matter D2024/2 until the appeal in matter C2024/4538 was heard and determined.
Matter C2024/4538 concerned an appeal by the Ambulance Employees Association of Western Australian (AEA) against a decision of Deputy President Colman issued on 17 June 2024.[1] In that decision, the Deputy President, acting under s 587(1)(c) of the Fair Work Act 2009 (Cth) (FW Act), dismissed an application made by the AEA for registration as an organisation of employees under s 18(b) of the RO Act. The Deputy President did so on the basis that:
section 19(1) does not permit an ‘enterprise association’ to be registered as an organisation of employees under s 19;
the expression ‘enterprise association’ is defined in s 18C(1) to mean ‘an association the majority of the members of which are employees performing work in the same enterprise’; and
the AEA met the description in s 18C(1).
In its appeal, the AEA contended that the Deputy President Colman erred in his construction of s 18C(1), which was to be read as referable to the eligibility for membership of an association under its rules rather than its actual or ‘flesh and blood’ membership. In a decision issued on 6 December 2024,[2] the Full Bench rejected this interpretation and affirmed the Deputy President’s construction of s 18C(1). The Full Bench granted permission to appeal and dismissed the appeal.
Following the Full Bench’s decision, Deputy President Bell directed the parties in matter D2024/2 to confer and provide an update to his chambers by 31 January 2025, a deadline which was later extended to 14 February 2025 following a request from VAU Inc. VAU Inc informed the Deputy President’s chambers that the parties had conferred with respect to the future conduct of the matter but were unable to reach agreement, and consequently requested that the matter be listed for mention. Consistent with this request, the Deputy President listed the matter for mention hearing on 5 March 2025.
The application
On 26 February 2025, VAU Inc lodged an application, accompanied by a witness statement of Nicholas White, the lawyer acting for VAU Inc with carriage of matter D2024/2, seeking the following:
The Applicant seeks the following notations and Orders.
1. The Commission notes that the following facts are uncontroversial:
(a) a majority of the Applicant’s flesh-and-blood members are employees of Ambulance Victoria;
(b) the Applicant also has flesh-and-blood members who are employees of other enterprises
2. On the basis of those uncontroversial facts, the Commission orders under s 608(1) of the Fair Work Act 2009 (Cth) that the following question of law be referred for the opinion of the Federal Court:
“What is the proper construction of s 18C(1) of the Fair Work (Registered Organisations) Act 2009 (Cth)? Specifically, does it:
(1) require, in order for an association to be an “enterprise association,” that a majority of its flesh-and-blood members be employees performing work in the same enterprise; or
(2) require, in order for an association to be an “enterprise association,” that the association’s rules require that a majority of its members be employees performing work in the same enterprise; or
(3) have the effect that, where an association may only be a federally-registrable “enterprise association” if all members fall into a category stated in s 18C(3), a further requirement to be such an “enterprise association” is that, within those categories, a majority must fall into the category stated in s 18C(3)(a)?”.
3. Such further or other order as the Commission considers to be necessary or appropriate.
The grounds of VAU Inc’s application relevantly include the following:
. . .
3.Neither the Full Bench nor the first-instance decision (Ambulance Employees Association of Western Australia[2024] FWC 1573) considered a third possible construction of s 18C(1), being that it has the effect, noting that an association may only be a federally-registrable “enterprise association” if all members fall into a category stated in s 18C(3), that a further requirement to be such an “enterprise association” was that, within those categories, a majority must fall into the category stated in s 18C(3)(a)?. (the constructions referred to in [2] and [3] above, the VAU Constructions).
4. If the Full Bench Construction were correct, the Applicant’s “Application by an association of employees (other than an enterprise association) for registration as an organisation” would be bound to fail. On either of the VAU Constructions, that application would not be bound to fail, and the application could proceed to substantive hearing on its merits.
5.The Commission as presently constituted would, in view of Ambulance Employees Association of Western Australia v United Workers’ Union[2024] FWCFB 451, apply the Full Bench Construction. So too, likely, would any second Full Bench, unless persuaded that the Full Bench Construction were plainly wrong (and the Applicant does not say it is plainly wrong; only that it is wrong).
6.Accordingly, in order for the Applicant meaningfully to be able to advance one or other of the VAU Constructions, it would have to do so in the Federal Court on judicial review, after one or several hearings in the Commission. That process involves waste of the time and resources of the parties and the Commission itself.
. . .
9.Apart from these matters, the constructional issue is complex and the issue is of general importance and wide application. If the Federal Court were to confirm the Full Bench Construction, that would efficiently dispose of the Applicant’s application for registration. If it were to answer the referred question in favour of one of the two VAU Constructions, then the Commission could proceed to consider the balance of the dispute. In either case, it is timelier and more efficient to refer.
Consideration
Section 608(1) of the FW Act provides that ‘The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court’. In Grabovsky v United Protestant Association of NSW Ltd[2015] FWC 5161, the then President of the Commission, Ross J, outlined the following in respect of s 608:
[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.
[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia in support of this Proposition:
It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a
question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. 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’.
[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146.
[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
(citations omitted)
The passage above makes clear that, even if the two identified preconditions are satisfied, there remains a discretion to be exercised as to whether the referral should occur.
I accept that VA Inc’s proposed question is capable of being characterised as a question of law, and that it arises in VAU Inc’s application in matter D2024/2. However, I do not consider that I should exercise the discretion to refer VAU Inc’s question to the Federal Court, for the following reasons:
(1)Insofar as, by its question, VAU Inc seeks to challenge the construction of s 18C(1) of the RO Act preferred in the Full Bench’s decision in the AEA matter, I do not consider that it is appropriate to allow that to occur by way a referral under s 608 of the FW Act. For me to take this approach would involve placing into question the correctness of the Full Bench decision without there being any proper basis to do so.
(2)Insofar as the question seeks to advance for consideration VAU Inc’s ‘third possible construction’ of s 18C(1) of the RO Act, the proposed construction is not expressed (either in the question or the grounds) in a sufficiently coherent way such as to satisfy me that it is reasonably arguable.
(3)In any event, if VAU Inc genuinely wishes to advance a construction of s 18C(1) of the RO Act that was not considered in the AEA matter, I have no reason to think that it would not properly be considered by Deputy President Bell at first instance or by a Full Bench on appeal. In respect of the posited requirement for VAU Inc to establish that the Full Bench decision in the AEA matter is ‘plainly wrong’, rather than just ‘wrong’, the distinction is more semantic than real in relation to a question of statutory construction. It is difficult to imagine that the Commission would adhere to a construction of s 18C(1) of the RO Act that has been demonstrated to be incorrect on the basis that it is not ‘plainly’ incorrect.
(4)I do not consider that a referral of the proposed question under s 608 of the FW Act is likely to produce any saving in costs or time in the final determination of VAU Inc’s application.
For the above reasons, VAU Inc’s application for referral of a question of law to the Federal Court under s 608 of the FW Act is refused.
PRESIDENT
[1] [2024] FWC 1573.
[2] [2024] FWCFB 451.
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