Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 7915

[2012] FWA 7915

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Country Fire Authority
v
United Firefighters’ Union of Australia
(C2012/5096)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 12 SEPTEMBER 2012

Appeal against decision - application for stay order.

[1] At the conclusion of the hearing on a stay in this matter on 11 September 2012 the following decision (now edited) was given.

[2] This is an application for a stay order by the Country Fire Authority (CFA). The order is sought in relation to an appeal lodged by the CFA against a decision 1 of Commissioner Roe pursuant to s.739 of the Fair Work Act 2009 (the Act). In his decision the Commissioner determined a range of related disputes between the CFA and the United Firefighters’ Union of Australia (the Union) pursuant to the dispute resolution clause of the Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010.2

[3] It was not contested by the parties that the conventional approach to the determination of a stay application is to consider whether there is a sufficiently arguable case that permission to appeal would be granted and the appeal would succeed, and whether the balance of convenience favours the application.

[4] In the present matter it is alleged in the Notice of Appeal that the Commissioner erred in various respects in deciding the dispute. The CFA has submitted that Fair Work Australia (FWA) had no jurisdiction to determine a dispute relating to the clauses in issue because they are invalid and of no effect. It was said that the clauses are not authorised by the legislation, the CFA submitting that the Commissioner erred in finding that the CFA is a constitutional corporation. It is further said that the clauses are invalid either by reason of the limitation on the legislative power of the Commonwealth to make laws that operate to destroy or curtail the capacity of a State to function as such, or alternatively because of the operation of s.5 of the Fair Work (Commonwealth Powers) Act 2009 (Vic) in terms of referral of powers.

[5] As was indicated to the parties at the hearing of the stay, I have some reservations as to whether a stay order is necessary in the present matter, given the terms in which the decision of the Commissioner is expressed. However, putting those concerns aside, I believe that there is demonstrated an arguable case in this matter. It would seem that the Union has acknowledged that there are serious questions raised by the issues which arise from the Notice of Appeal. I believe that the sufficiently arguable case relates in particular to the issues regarding the finding that the CFA is a constitutional corporation.

[6] In relation to the balance of convenience, I have taken into account the submissions made by the Union regarding the indications which have been given earlier this year regarding the updated staffing levels within the CFA’s various operating locations. These are set out in an “Update” circulated by the Chief Officer of the CFA in May 2012, which was tendered in the course of the stay proceedings. I have also had regard to the fact that it has been indicated that the Update was not the subject of examination or evidence in the proceedings before the Commissioner, although it does indicate what were, at least at the date of the Update, the changes in deployments within the CFA staffing in the period from September 2011.

[7] In my view the balance of convenience does favour the granting of a stay. It favours it in circumstances where an application under s.608 might or might not be granted, so it will not be necessary to revisit this decision in the light of any determination by the President in relation to the s.608 application.

[8] In relation to the width of the stay order, there might be some advantage in the order only applying in relation to sub-paragraphs (d) and (e) of paragraph [130] of the Commissioner’s decision, as was sought by the Union. I cannot see that following the course set out in sub-paragraphs (a) to (c) would seriously prejudice the interests of either party. To the contrary, following that course might have the benefit of facilitating further discussions between the parties which might possibly lead to some resolution of the issues and a way of avoiding what might otherwise be a long and potentially costly course of litigation.

[9] In the hearing I recommended to the parties that they should confer in relation to the issues raised by the appeal and the s.608 application, and that this might be the most practical way of the parties addressing the issues short of the course of litigation that I have referred to. I repeat that recommendation now.

[10] An order will be issued in the terms set out in this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

J Bourke Senior Counsel and T Jacobs of counselfor the Country Fire Authority.

H Borenstein Senior Counsel for the United Firefighters’ Union of Australia.

Stay hearing details:

2012.

Sydney and Melbourne (video hearing):

September 11.

 1   [2012] FWA 7155.

 2   AE881690.

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