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Fair Work Act 2009                                                    






s.739 - Application to deal with a dispute


United Firefighters' Union of Australia


Fire Rescue Victoria







2.37 PM, MONDAY, 29 AUGUST 2022


THE COMMISSIONER:  Thank you, parties for that opportunity.  What I propose to do now is to read a short decision into the transcript, dealing with the matter before me at the moment.


The matter presently before the Commission is an application made by the UFU on 30 March 2022, invoking the Interim Agreements Dispute Resolution clauses and the provision of two further clauses, Clause 42 of Division A, applying to former MFB operational employees, and Clause 49 of the Division B, applying to former CFA operational employees.


Both the latter clauses commit the FRV to endorse the establishment of a Firefighter Registration Board to be demonstrated by letter of endorsement to the UFU Secretary.  I am informed that considerable conciliation on the subject has failed to resolve the differences between the UFU and the FRV.


Somewhat unusually, I am not fully aware of the scope of the disagreement between those parties.  Directions for hearing of this matter were issued by me on 23 June 2022, the ultimate step for which is a hearing which is listed for today and tomorrow.  The UFU has filed comprehensive submissions on the form of relief it seeks, as well as a witness statement of its Industrial Officer, Laura Campanaro.


The FRV's submissions are less comprehensive, consisting of short submissions and a statutory declaration from its solicitor, David Catanese(?), drawing attention to correspondence dated 17 August 2022 from Jaclyn Symes, MP, Attorney General and Minister for Emergency Services.


The correspondence is to the FRV's Acting Fire Rescue Commissioner, Martin Braid, informing him that she refused consent to the FRV to enter into a services agreement with the Victorian Professional Career Firefighters Registration Board Limited for the provision of firefighter registration services to the FRV.


The letter states the Minister refused consent pursuant to Section 25A of the Fire Rescue Victoria Act 1958, with the letter setting out the basis of her refusal.  I am unaware of the FRV's views either about the grounds she states for refusal, what should now be done by the FRV in response to the Minister's letter, or what follows for the Commission as a result of the Minister's correspondence or the grounds she invokes.


Notwithstanding the filing of the directions issued by me on 23 June 2022, and that the Minster's correspondence to the FRV is dated 17 August 2022, the Minister has sought to intervene in these proceedings, only for an email sent to my chambers at 8.55 a.m. this morning.


In those submissions the Minister refers to several grounds of objection to the relief now sought by the UFU, including that the term of the agreement, in conjunction with the things already done by the FRV means the dispute is resolved; that the subject in Clause 42 and 49 is not about matters pertaining; further it is argued by the Minister that the relief sought by the UFU impermissibly fetters the FRV in the discharge of its powers and functions.


The Minister seeks that she intervene and be heard by me in relation to these and other subjects elaborated upon in what is now exhibit Minister 1.  Amongst other things, the Minister would draw the Commission's attention, not only to her power to refuse consent to certain third party arrangements, but also to obligations she says are case on the FRV by its act and its status as a public sector entity.


It is argued on her behalf that I should exercise a discretion under section 590 of the Fair Work Act, which gives the Commission the power to inform itself in such manner as it considers appropriate.  The UFU objects to the Minister's invention, whereas the FRV does not express a view.  It its submissions on the subject the UFU contends that since this matter involves a private arbitration, the Commission ought not grant intervention to a third party.


In this regard it draws a distinction between a matter involving exercise of a judicial function, and a matter such as this, being determination of private rights and a private arbitration.  The union further argues that the basis of the Minister's objection to the relief proposed by the union are without foundation.


My decision is to grant intervention to the Minister, but to confine that intervention to the subject matter set out in the submissions she filed this morning.  In granting intervention I note the submissions already made by the UFU about the applicability of each of the Ministers' objections.


I am yet to fully engage with those matters or the weight, if any, which should be accorded to them in making my decision about the substantive matter, and that is especially so given the FRV has not raised any matters or expressed the view it accepts the accuracy of her submissions.


I am also reluctant to disturb the timetable put in place for the hearing and determination of the matter.  I do not know why it took from 17 August when the Minister sent her letter to the FRV drawing attention, amongst other things, to its obligation to act as a model litigant, to then only file objections and a request for intervention only on 29 August.  Such delay is unsatisfactory and ought not be the basis for further delay.


Having said that, I must plainly afford an opportunity to the UFU to have time to prepare and file rebuttal submissions on the detail of the Minister's submissions, if that is what they wish to do.  Because of that, I propose then that the matter proceed in accordance with the steps, four steps in all, which as far as possible, make use of the time set aside today and tomorrow.


First of all, I propose that the UFU now proceed to develop its case in support of the relief it seeks, and that may include the oral evidence if such is required, of


Ms Campanaro.  I then suggest hearing the FRV for the same purpose, and then I propose to hear the submissions on behalf of the Minister as she wishes to make, but as I have said, to be confined in the way that I have outlined.


I would then afford the union the opportunity of the right of response to the Minister, either through final written submissions or oral submissions according to its preference, and what I mean by that is that I would adjourn the proceedings at the conclusion of the Minister's submissions, perhaps for about two weeks from the availability of transcript so that we can hear the union's final closing submissions.


At the conclusion of the union's final submissions I would then propose to reserve my decision and to issue it in the usual course.