United Firefighters' Union of Australia, Union of Employees, Queensland Fire Brigade Employees' Union of New South Wales v United Firefighters' Union of Australia
[2023] FWCFB 261
•19 DECEMBER 2023
| [2023] FWCFB 261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
United Firefighters’ Union of Australia, Union of Employees, Queensland
Fire Brigade Employees’ Union of New South Wales
v
United Firefighters’ Union of Australia
(C2023/4351 & C2023/4353)
| DEPUTY PRESIDENT SAUNDERS DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON | NEWCASTLE, 19 DECEMBER 2023 |
Appeal against decision [2023] FWCG 25 of Murray Furlong at Melbourne on 6 July 2023 in matter number R2022/65 – alteration of union rules – permission to appeal refused.
Introduction
The United Firefighters’ Union of Australia, Union of Employees, Queensland (UFUQ) and the Fire Brigade Employees’ Union of New South Wales (FBEU) (together, the Appellants) have each filed a Notice of Appeal in which they seek permission to appeal a decision by the General Manager of the Fair Work Commission (Commission) to reject a request by the Appellants to alter the rules of the United Firefighters’ Union of Australia (UFUA).[1]
Background
The UFUQ is a union registered under the Industrial Relations Act 2016 (Qld). The FBEU is a union registered under the Industrial Relations Act 1996 (NSW).
The UFUA is a union registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act).
In 2022, the Federal Court approved a scheme to reconstitute the Queensland Branch of the UFUA.[2] The orders made by the Federal Court were based on findings about the actions of the then members of the Branch Committee of Management of the UFUA’s Queensland Branch. The propriety of those actions by the Queensland officials resulted in the disenfranchisement of about 2,500 members of the UFUA.
As part of the Scheme approved by the Federal Court, the Administrator appointed was given the power to alter the rules of the UFUA in order to resuscitate the Queensland Branch of the UFUA. By decision published on 8 September 2022, the General Manager exercised his power under s 159(1) of the RO Act to certify the rule alterations proposed by the Administrator.[3]
While the General Manager was considering whether to certify the rule alterations proposed by the Administrator, the UFUQ and FBEU requested that the General Manager use his powers under s 156 of the RO Act to alter rules of the UFUA which were not the subject of any amendment by the Administrator. In particular, the Appellants requested that the General Manager delete any reference to the UFUQ and the FBEU in the UFUA’s rules.
For many years, the UFUA’s rules have included a definition of “Associated Body” which includes the UFUQ and the FBEU, as well as other unions representing firefighters.[4] The expression Associated Body is used in a number of places in the UFUA’s rules. For example, (a) rule 7(4) establishes a procedure whereby an application may be made for a member of an Associated Body to become a member of the UFUA and (b) rule 54(5A) provides that a branch of the UFUA may enter into service agreements with an Associated Body registered under state legislation in the same state as that branch.[5]
The Appellants contended before the General Manager that although the intention of the Administrator of the UFUA was to eventually harmonise relations with the UFUQ and the FBEU, those organisations did not desire a relationship with the UFUA, its Queensland Branch or the officers of the UFUA. In circumstances where there was no present or ongoing relationship between the UFUA and either the UFUQ or the FBEU, the Appellants contended that the UFUA’s rules should not provide for such a relationship through the definition of Associated Body in rule 2(2).
General Manager’s Decision
The General Manager determined that he did not have the power under s 156(1) of the RO Act to alter the UFUA’s rules in the manner sought by the Appellants.[6] Section 156(1) of the RO Act provides:
“Where the rules of an organisation do not, in the General Manager’s opinion, make provision required by this Act, the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to bring them into conformity with this Act.”
The General Manager reasoned that his power under s 156 to alter rules was limited to circumstances in which the rules of an organisation do not, in his opinion, “make provision required by this Act”. The expression “make provision required by this Act” was interpreted by the General Manager, on the basis of an earlier decision by Senior Deputy President Williams in connection with a similar provision, to mean that the rules of an organisation must provide for the matters required by the RO Act.[7] As a result, the General Manager determined that he did not have the power to determine whether the UFUA’s rules complied with the general requirement in s 142 of the RO Act that the rules must not be contrary to the RO Act or the Fair Work Act 2009 (Cth) (FW Act), or otherwise contrary to law, as contended for by the Appellants.[8]
Notwithstanding his conclusion that he did not have power under s 156 of the RO Act to alter the UFUA’s rules for the reasons contended for by the Appellants, the General Manager went on to consider, for completeness, whether the UFUA’s rules were contrary to the FW Act or the Australian Consumer Law (ACL).[9]
The General Manager considered two arguments advanced by the Appellants to the effect that the reference to the UFUQ and the FBEU in the definition of Associated Bodies in the UFUA’s rules was misleading. First, the General Manager rejected the argument that the UFUA’s rules constituted a false or misleading representation in contravention of s 345 of the FW Act. Secondly, the General Manager rejected the argument that the UFUA’s rules were in breach of the requirement under s 18(1) of the ACL that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
As to the first argument, the General Manager rejected the Appellants’ submission that by referring to the UFUQ and the FBEU as Associated Bodies in the UFUA’s rules, members or potential members of the UFUA may be misled into expecting or believing that they would receive advocacy and representation services in their respective state jurisdictions if they joined the UFUA. The General Manager found that the UFUA’s rules do not amount to a representation that a member of the UFUA would have access to advocacy or representation services in state-based industrial systems in Queensland and New South Wales.[10] The General Manager reasoned that the references to the state associations in the definition of Associated Body are for internal UFUA purposes; the rules provide a means for members of an Associated Body to become a member of the UFUA; the rules facilitate co-operative relations between Associated Bodies and the UFUA; but the rules do not suggest that UFUA members will have access to advocacy or representation services by the UFUA in state-based industrial relations systems.[11] The General Manager also determined that the UFUA’s rules do not amount to a representation in relation to workplace rights, as is required by s 345 of the FW Act.[12]
As to the second argument, the General Manager rejected the submission that the UFUA’s rules are misleading or deceptive because they represent that there is an association or relationship between the UFUA and either of the Appellants when there is not. The General Manager reasoned that the UFUA’s rules do no more than define Associated Bodies and facilitate voluntary arrangements between the UFUA and the Associated Bodies. The conclusion reached by the General Manager was that the UFUA’s rules “do not represent that a relationship exists, they merely enable relationships should the entities agree”.[13]
Permission to appeal
An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[14] There is no right to appeal and an appeal may only be made with the permission of the Commission.[15]
Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so. Permission to appeal may be granted on grounds other than the public interest.[16]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[17] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[18]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[19] However, the fact that the first instance decision maker made an error is not necessarily a sufficient basis for the grant of permission to appeal.[20]
Appeal grounds and submissions
By ground 1 of the appeals, the Appellants contend that the General Manager erred in holding, at [62] and [63] of the Decision, that he did not have power under s 156 of the RO Act to make the alterations sought by the Appellants. It is submitted that the General Manager ought to have found that:
(a)Chapter 5 of the RO Act creates norms that include that the rules of a registered organisation must not be contrary to the FW Act and must not be contrary to law;
(b)the scope of s 156 requires the General Manager to form an opinion about whether an organisation’s rules make provision for those norms; and
(c)having formed the opinion that the rules do not make provision for those norms, the General Manager may then determine such alterations as are necessary to bring the rules into conformity with them.
By ground 2 of the appeals, the Appellants contend that the General Manager erred in law in failing to conclude, at [76] of the Decision, that the UFUA engaged in misleading or deceptive conduct. In particular, the Appellants contend that:
(a)The General Manager erred in finding, at [69] of the Decision, that no representation relating to workplace rights has been made.
(b)The General Manager erred in finding, at [72] of the Decision, that the rules of the UFUA do not breach the ACL.
(c)The General Manager erred in finding, at [74] of the Decision, that the rules of the UFUA do not represent that a relationship exists between the UFUA and its Associated Bodies.
(d)In consequence of these errors, the General Manager erred in failing to conclude that the UFUA has not engaged in misleading or deceptive conduct.
In oral argument, the Appellants submitted that even if it were found that the alleged representations were not made in trade or commerce, they would constitute innocent misrepresentations and thereby be contrary to law within the meaning of s 142 of the RO Act.
By ground 3 of the appeals, the Appellants contend that the General Manager erred in failing to provide procedural fairness to them because they were not provided with, or given an opportunity to respond to, some submissions made by the UFUA to the General Manager.
The Appellants contend that it is in the public interest for the Commission to grant permission to appeal for two reasons. First, the appeal raises questions of general importance about the proper interpretation of s 156 of the RO Act and the extent to which the rules of a registered organisation can be misleading or deceptive for the purposes of s 345 of the FW Act or s 18(1) of the ACL. Secondly, it is submitted that the General Manager’s decision is unjust in that it leaves the Appellants with no remedy or means to protect their interests or the interests of their members from the prejudice of being described as an Associated Body in the rules of the UFUA when there is no relationship between the Appellants, or either of them, and the UFUA.
The UFUA submits that permission to appeal should be refused. It contends that the Decision of the General Manager is not attended with sufficient doubt and no injustice would result if permission were refused. The UFUA submits that the “opinion” made by the General Manager under s 156 of the RO Act was correct, and he correctly construed his powers under that provision. The UFUA also submits that any rule change which seeks to remove references to the UFUQ from the rules of its federal counterpart would serve to give effect to the very conduct which was the subject of critical analysis by the Federal Court.[21] It is submitted that this consideration strongly militates in favour of a refusal of permission to appeal.
Consideration
We accept that the Appellants have standing to appeal on the basis that they are persons aggrieved by the Decision. However, we have decided to refuse permission to appeal in each appeal for the following reasons.
We consider that the General Manager was correct in his determination that the relevant rules of the UFUA are not misleading or deceptive, nor do they contain any misrepresentations.
Although this material was not before the General Manager when he determined the matter at first instance, counsel for the UFUA drew our attention to the meaning of “federal counterpart” in s 9A of the RO Act. Section 9A(1) provides:
“For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.”
Regulation 8A(1) of the Fair Work (Registered Organisations) Regulations 2009 provides:
“For subsection 9A(1) of the Act, an organisation mentioned in column 3 of an item in Schedule 1A is prescribed as the federal counterpart of an association of employers or employees registered under a State or Territory industrial law mentioned in column 2 of the item.”
Schedule 1A of the Fair Work (Registered Organisations) Regulations 2009 relevantly provides:
Item Association Federal counterpart …118 New South Wales Fire Brigade Employees Union United Firefighters’ Union of Australia …239 United Firefighters’ Union of Australia, Union of Employees, Queensland United Firefighters’ Union of Australia
Accordingly, the UFUA is the federal counterpart of each of the UFUQ and the FBEU.
The RO Act contains a number of provisions which address federal counterparts. For example, (a) s 137F of the RO Act permits the Commission to make orders reflecting state representation orders, and if it does so such orders may apply to each organisation that is a federal counterpart to the relevant association of employees, and (b) s 158A of the RO Act permits the General Manager to consent to an alteration of eligibility rules of an organisation to extend them to apply to persons within the eligibility rules of an association of employees that is registered under a State or Territory industrial law, if the General Manager is satisfied, among other things, that the organisation is a federal counterpart of the association.
It is therefore apparent that there is an association between each of the Appellants and their federal counterpart, the UFUA, as recognised in the Fair Work (Registered Organisations) Regulations 2009. The existence of this association is sufficient to overcome the Appellants’ argument that there is no association between them and the UFUA because they do not wish to have such an association.
We also agree with the General Manager’s opinion that the UFUA’s rules “do not represent that a relationship exists, they merely enable relationships should the entities agree”.[22] In this sense, it is accurate to say that there is a connection or association between the UFUA and each of the Appellants because each organisation represents the industrial interests of employees doing the same type of work and the organisations may have, form or renew voluntary arrangements, if the persons in control of each organisation agree, in connection with the services they provide to members.
It follows that it is not misleading or deceptive, nor is it a misrepresentation, for the UFUA’s rules to include, as they have for decades, a definition of Associated Body which includes the UFUQ and the FBEU.
As to the argument that the UFUA’s rules represent that a member of the UFUA would have access to advocacy or representation services in state-based industrial systems in Queensland and New South Wales, Senior Counsel for the Appellants accepted at the hearing of the appeals that this argument requires a ‘large implication’. A ‘large implication’ is required because the UFUA’s rules do not contain anything like an express representation that members of the UFUA would have access to advocacy or representation services in state-based industrial systems in Queensland and New South Wales. We reject that any such implication, large or otherwise, arises from the UFUA’s rules. We do not accept that the UFUA’s rules are reasonably capable of creating the impression that a member or potential member of the UFUA would have access to advocacy or representation services in state-based industrial relations systems in Queensland and New South Wales. The fact that two organisations of employees are Associated Bodies within the meaning of a definitional rule does not say or suggest that a member of one organisation will automatically become a member of the Associated Body or have access to advocacy or representation services in a state-based industrial relations system. We consider that the General Manager was correct to reject this argument. The General Manager was also correct, in our view, to reject the argument that there was any representation about a workplace right, as required under s 345 of the FW Act. The Appellants did not make any cogent or persuasive submissions to identify the particular workplace right(s), under s 341 of the FW Act, to which they say the false or misleading representation related.
Because the General Manager was correct to conclude that the UFUA’s rules do not contain a misleading or deceptive representation, or a misrepresentation, the General Manager correctly concluded that the rules are not contrary to the FW Act or otherwise contrary to law. It also follows that the Appellants’ alternative argument in relation to innocent misrepresentation must be rejected. We do not need to consider a range of other arguments advanced by the parties under ground 2 of the appeal, such as whether the representation was made in trade or commerce, as required by s 18(1) of the ACL. We reject ground 2.
Further, in light of our conclusion that the General Manager was correct in his opinion that the relevant provisions of the UFUA’s rules are not contrary the FW Act, or otherwise contrary to law, we do not need to determine ground 1 of the appeal. Nevertheless, our preliminary view is that the General Manager was correct in his interpretation of the expression “make provision required by this Act” in s 156 of the RO Act. Chapter 5 of the RO Act governs rules of organisations. Part 2 of Chapter 5 requires that the rules of an organisation “must provide for” a whole range of matters,[23] “may provide for” other things,[24] “must specify” or “must require” certain things,[25] and must not breach the “general requirements for rules”, including that they “must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law”.[26] These provisions give context to the expression “make provision required by this Act” in s 156 of the RO Act. Further, the General Manager has the power, under a number of provisions of the RO Act,[27] to certify that alterations to rules comply with, and are not contrary to, the RO Act, the FW Act, modern awards and enterprise agreements, and are not otherwise contrary to law. In contrast, the “opinion” which the General Manager is required to form under s 156(1) of the RO Act is limited to whether the rules of an organisation “make provision required by this Act”. We consider that the omission of the expressions “must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law” in s 156 is telling. Of further contextual relevance is the fact that s 163(1) of the RO Act confers an express right of standing on a member of an organisation to apply to the Federal Court for a declaration that the whole or part of a rule contravenes the requirement under s 142(1)(a) that the rule “must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law”. However, s 163 does not expressly exclude any other person or organisation from seeking a declaration in the Federal Court, under s 21(1) of the Federal Court of Australia Act 1976 (Cth), that a rule contravenes s 142(1)(a) of the RO Act. Any such person would have to establish that they have standing to make such an application.
Ground 3 of the appeals does not go anywhere. Either the General Manager was correct in the opinion he formed under s 156 of the RO Act or he was not. If he was not, then the appeals would succeed. If he was correct, as we have found was the case, then giving the Appellants a further opportunity to be heard at first instance would not have altered the outcome. The Appellants have had access during the appeal proceedings to the submissions of the UFUA which they did not see when the matter was before the General Manager. The Appellants have not identified any submissions that they would have put to the General Manager, if given the chance to do so, which would have had any real likelihood of altering the outcome of the case before the General Manager. We reject ground 3.
Conclusion
We consider that it is not in the public interest to grant permission to appeal. Nor is there any other basis on which permission to appeal should be granted. The conclusion of the General Manager under s 156 of the RO Act was correct. No appealable error has been demonstrated.
For the reasons given above, permission to appeal is refused in each appeal. The appeals are dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A. Pomerenke KC and Mr H. Clift, counsel, appeared for the UFUQ and the FBEU
Mr T. Dixon and Mr D. Langmead, counsel, appeared for the UFUA
Hearing details:
2023
Sydney:
December 13.
[1] [2023] FWCG 25 (Decision)
[2] United Firefighters’ Union of Australia v United Firefighters’ Union of Australia, Union of Employees, Queensland [2022] FCA 145
[3] [2022] FWCG 47
[4] Rule 2(2) of the UFUA’s rules: Hearing Book at p 288
[5] For other examples, see paragraph [65] of the Decision
[6] Decision at [44]-[63]
[7] Decision at [57]-[58]
[8] Decision at [62]-[63]
[9] Decision at [64]
[10] Decision at [70]
[11] Decision at [69]
[12] Decision at [70]
[13] Decision at [74]-[75]
[14] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[15] Section 604(1) of the FW Act
[16] Section 604(2) of the Act
[17] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[18] [2010] FWAFB 5343, 197 IR 266 at [27]
[19] Wan v AIRC (2001) 116 FCR 481 at [30]
[20] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[21] [2022] FCA 145 at [98]-[100], [114]-[118], [131], [143], [172], [176]
[22] Decision at [74]
[23] See, for example, ss 141(1)(b), 143(1), 144(1), 145(1) and 149(1) of the RO Act
[24] See, for example, ss 141(1)(c), 143(2), 145(2), 146(1), 149(2), 151(1) and 152(1) of the RO Act
[25] See, for example, ss 141(1)(a) and 141(1)(ca) and (d) of the RO Act
[26] Section 142(1)(a) of the RO Act
[27] See, for example, ss 144(3), 159(1), and 249(5) of the RO Act
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