Country Fire Authority v United Firefighters' Union of Australia
[2012] FWA 8803
•15 OCTOBER 2012
[2012] FWA 8803 |
|
DECISION |
Fair Work Act 2009
s.608—Referring questions of law to the Federal Court
Country Fire Authority
v
United Firefighters’ Union of Australia
(C2012/5096)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 15 OCTOBER 2012 |
Referring questions of law to the Federal Court.
[1] The matter before me is an application by the Country Fire Authority (CFA) for the referral of certain questions of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the Act).
[2] The questions sought to be referred are as follows:
(1) Whether the CFA is a “constitutional corporation” within the meaning of that expression in the FW Act?
(2) Whether by reason of the operation of the implied limitation on the Commonwealth’s legislative powers recognised in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 (the implied limitation), sub-clause 27.4.7 and its application to Schedule 1 (the clauses) of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (the Agreement) are invalid and of no effect as terms of an enterprise agreement made under the FW Act?
(3) Whether the clauses are invalid and of no effect as terms of an enterprise agreement under the FW Act by reason of the operation of s.5(1)(a) and (b) of the Fair Work (Commonwealth Powers) Act 2009 (Vic)?
(4) Whether the clauses pertain to “permitted matters” for the purposes of s.172(1)(a) of the FW Act or pertain to managerial matters?
(5) Is it within the power of FWA to require the CFA to request its employees to approve a variation of Schedule 1 of the Agreement as contemplated by the determination of Commissioner Roe made 21 August 2012 (the Determination)?
(6) Did Commissioner Roe make a determination that went beyond the scope of the dispute referred to FWA when he made the Determination?
[3] It is common ground that these questions arise in the context of an appeal from a decision of Commissioner Roe ([2012] FWA 7155) to a Full Bench of Fair Work Australia. The appeal is listed for hearing on 18 October 2012.
[4] The applicant submits that the questions sought to be referred are questions of law and that the questions arise in the appeal from Commissioner Roe’s decision. It is submitted that questions (1) - (4) are ‘absolutely critical’ to the determination of the appeal. The applicant advances five further points in support of the referral:
(i) The questions are ‘special or unique’.
(ii) The law in respect of these critical issues is uncertain.
(iii) The Commissioner’s decision comprehensively canvassed the relevant facts and all necessary factual findings were made. There are no outstanding evidentiary or factual matters which would inhibit the efficient determination of the questions of law.
(iv) If the questions were referred they are likely to be resolved more quickly than if they were determined by a Full Bench and then were the subject of prerogative relief application.
(v) Determination by the Full Federal Court of the questions of law sought to be referred would assist with the resolution of an extant Federal Court proceeding (No VID 440 of 2012).
[5] The United Firefighters’ Union (UFU) opposes the application. The UFU submits, among other things, that the matter presently before the Tribunal involves time critical questions and the referral would have the effect of delaying the resolution of the matter.
[6] It is clear that s.608 confers a discretion on the President as to whether a question of law arising in a matter before the Tribunal should be referred for the opinion of the Federal Court. That discretion should 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 Tribunal 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.”
[7] In my view the discretion conferred by s.608 should, where possible and appropriate, be exercised in such a way as to avoid undue delay in the determination of matters before the tribunal. I note that such an approach is entirely consistent with the approach taken by a number of a Full Benches in relation to the legislative antecedents to s.608. 1
[8] I accept that the questions sought to be referred, or at least questions (1) - (5), involve real questions of substance and complexity. Absent other considerations I would have been minded to refer such questions for the opinion of the Federal Court. But two particular matters have led me to refuse the application for referral.
[9] The first concerns the factual substratum relating to the determination of the questions sought to be referred. Contrary to the applicant’s submission I am not persuaded that there are ‘no outstanding evidentiary or factual matters which would inhibit the efficient determination of the questions of law.’ Indeed it is clear that the applicant contests one of the factual findings made by the Commissioner - that is the Commissioner’s characterisation, of revenue paid pursuant to s.80A of the Country Fire Authority Act, as trading revenue. 2
[10] Further, the Commissioner makes no finding in respect of some $309 million in revenue which is derived from a levy on insurance premium pursuant to s.77 of the Country Fire Authority Act.
[11] It seems to me that the resolution of these factual considerations are clearly relevant to the determination of whether the CFA is a trading corporation. It is appropriate that such factual matters be resolved before the determination of the questions of law posited by the applicant.
[12] I also note that part of the applicant’s case is that the proper characterisation of the CFA is to be derived from a consideration of the broad context, including the substantially volunteer nature of the organisation. It seems to me that such a consideration would also benefit from findings of fact in relation to the matters relied upon by the applicant.
[13] The second consideration which has led me to refuse to grant the referral is the issue of timing. The appeal is to be heard this Thursday 18 October. I doubt that these matters would be resolved more quickly if they were referred, as opposed to being determined by a Full bench and then were the subject of a prerogative relief application. In either case it is unlikely that the matters would be dealt with by the Federal Court before May 2013.
[14] In my view the most expeditious and appropriate course is to refuse the referral and have the appeal heard and determined. No party is prejudiced by such a course. The hearing of the appeal will enable the contested issues of fact to be resolved which will in turn provide a more appropriate foundation for the determination of the relevant legal questions.
[15] The application is refused.
PRESIDENT
Appearances:
J. Bourke SC and T. Jacobs of Counsel for the Country Fire Authority
W. Friend SC and S. Bingham of Counsel for the United Firefighters’ Union of Australia
Hearing details:
2012.
Melbourne:
15 October.
1 The Hoyts Corporation Pty Ltd and Australian Theatrical and Amusement Employees Association, Print K4341; Re Finnemores Pty Ltd, Print M5301; Bulga Coal Management Pty Ltd v CFMEU, Print PR924444 8 November 2002 per Marsh SDP, Cartwright SDP and Hoffman C.
2 See [2012] FWA 7155 at paragraph 71.
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