In United Firefighters’ Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510 the United Firefighters’ Union (UFU) challenged the power of the Minister to give directions to Fire Rescue Victoria (FRV) on how FRV was to respond in an ongoing industrial dispute.

FRV and the UFU were engaged in negotiations to establish ‘an independent registration board, the apparent purpose of which being to maintain a register of personal and training details (perhaps amongst others) pertaining to Victorian firefighters’ ([15]).  The UFU established the Victorian Professional Career Firefighters Registration Board Limited (the Board) and continued negotiations with FRV on arrangements to be made between the Board and FRV.  Issues that could not be resolved between the parties turned on whether any agreement would be between the Board and FRV or between the Board, FRV and the UFU.

Ministerial consent was not required

Under s 25A(3) of the Fire Rescue Victoria Act 1958 (Vic), FRV needed the Minister’s consent before

(a) entering into any agreement or arrangement with any person or body for the provision of goods or services by Fire Rescue Victoria; or

(b) forming, participating in the formation of, or becoming a member of a body corporate, association, partnership, trust or other body; or

(c) entering into any joint venture agreement, shareholders agreement or unitholders agreement.

The Minister wrote to FRV indicating that in her view the proposed agreement with the Board required her consent which would not be forthcoming ([22]).  Section 8 of the Fire Rescue Victoria Act provides that FRV is ‘subject to the general direction and control of the Minister’ and that the Minister ‘may from time to time give written directions to Fire Rescue Victoria and the Fire Rescue Commissioner’. The Minister followed up on her letter denying consent under s 25A with a s 8 direction that FRV was not to enter the proposed agreement with the Board ([24]).

The UFU argued that the Minister’s intervention were not authorised by the Act and was an attempt to coerce FRV over how it exercised its right to settle a dispute with it employees. This was said to be contrary to the Fair Work Act 2009 (Cth) s 343.

The issue before the court turned on whether the Minister’s letter withholding consent to any agreement, or the direction not to enter the agreement was permitted by the Fire Rescue Victoria Act.  If either was, then it was not coercion but the legitimate exercise of her statutory powers and authority.

The UFU argued that Ministerial consent was not required to enter the proposed agreement because the agreement did not involve the provision of services by FRV nor did it involve FRV becoming a member of the incorporated board.  Justice Snaden, in the Federal Court of Australia, agreed and held that the Minister’s consent was not required under s 25A(3)(a).

His Honour also found that even though FRV was negotiating with the UFU on the terms of agreement with the Board, the actual creation of the Board was something that had been done earlier. His Honour said (at [88]):

There is no basis upon which the court might properly construe “formation” in s 25A(3)(b) of the FRV Act in a way that extends, in the case of Victorian Professional Career Firefighters Registration Board Limited, to activities that were to be engaged in several months after it was incorporated.

Entering into a contract with the Board after it had been established did not constitute ‘forming, participating in the formation of, or becoming a member of a body corporate…’  The Court agreed that the Minister’s consent was not required.

The Minister’s direction

With respect to the direction under s 8, the UFU argued the Minister could not use s 8 to impose conditions on FRV’s freedom to contract where her consent was not required, that is she could not use s 8 to ‘get around’ the limitations in s 25.  His Honour disagreed. He said (at [102]-[103]):

Section 8 of the FRV Act confers upon the Minister a general power to give directions to FRV (and a corresponding obligation on the part of FRV to follow them). Expressly reserved by s 8(1) is a general power on the part of the Minister to give directions about “the exercise of powers of [FRV]”. … it is plain beyond doubt that s 8(2) is intended to confer upon the Minister a power to give directions in relation to the exercise of FRV’s statutory powers. Necessarily, that must include the powers conferred by s 25A(1) and (2)—specifically, the powers to do things, including without ministerial consent.

The fact that FRV has powers that it may exercise without ministerial consent is not a matter that requires any reading down of the Minister’s powers under s 8 of the FRV Act. The absence of a need to obtain consent to do something is one thing. Subjection to a general power of direction is something else entirely…

Even so the Minister may not make directions about ‘operational functions and powers’ (s 8(3)). The UFU argued that the decision to enter a contract with the Board about registering appropriately qualified firefighters. The UFU argued (at [107):

… that the reference in s 8(3) of the FRV Act to “operational functions and powers” is properly understood as a reference to functions and powers that pertain to the prevention and suppression of fires. The power to regulate the registration of professional firefighters, it says, is something so integral to that overall operational purpose as to itself qualify as operational by nature.

The Act does not define what is an ‘operational function’ or ‘power’ so it was up to the court to define the distinction between what is ‘operational’ and what is not. At [114] His Honour said:

Although, admittedly, the issue is not free from doubt, it appears … that what separates FRV functions and powers that are “operational” from FRV functions and powers that are not “operational” is a question of proximity; specifically, proximity to the core FRV functions of fire safety, prevention and suppression. … it appears that operational functions and powers are functions or powers that are directed immediately (or at least sufficiently proximately) to the provision of fire safety, prevention or suppression services. In other words, an operational function or power should be understood as one that, if interfered with, might visit an immediate negative impact upon FRV’s capacity to discharge its essential functions.

Whilst it is ‘not easy to draw a bright line’ between an operational function and a non-operational function, His Honour was satisfied that in this case the decision to enter a contract with the Board was not ‘operational’ and therefore could be the subject of a Ministerial direction.  His Honour said (at 116):

Here, what was proposed was an exercise of FRV’s power to enter into an agreement with a third party for the provision of services.  More specifically, FRV was contemplating an exercise of its power to enter into an agreement to establish a registration board and to regulate the provision of its registration services.  Neither the function of such a board nor the character of the services so provided are sufficiently (which is to say immediately or proximately) integral or essential to the function of fighting or preventing fires (or otherwise promoting fire safety).

Because the Minister’s direction under s 8 was lawful it could not be ‘coercion’ but the issue of the Minister’s letter, refusing consent when consent was not require, remained open. The court said that the letter could only amount to coercion if it ‘was unlawful, unconscionable or illegitimate’ ([128]).

The court, after reviewing the legal authorities, held that unlawful meant ‘forbidden by law’ ([156]). The Minister had written a letter implying that she had the right to withhold consent and that her consent was in fact required. In this she was mistaken but ‘Generally speaking (and acknowledging that there are exceptions), the law does not forbid people from writing letters, nor from mistakenly asserting that they possess certain powers. Here, the worst that can be said of the Minister’s conduct is that it was not authorised under the FRV Act’ ([156]).

The Minister’s belief about the need for her consent and her power to withhold that consent were wrong but not ‘unconscionable’, nor was it ‘illegitimate’.  His Honour said (at [174]):

… the Minister’s conduct, though premised upon a mistaken assumption of power, was nonetheless a good‑faith endeavour to exercise authority under a statute so as to prevent FRV from entering into a contract that risked visiting consequences that the Minister regarded as unacceptable.  So understood, it cannot be said that there was any want of proportionality as between the Minister’s lawful conduct and the interest that she hoped to advance by it.

For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly illegitimate…

The Minister was mistaken about s 25A.  She did not want FRV to enter into the contract with the Board. As the minister she had a legitimate interest in the matter and the power to direct FRV under s 8.   Writing the letter to FRV clearly indicated her views on how they should resolve or more importantly, not resolve the issue with the UFU and the Board but her belief that her consent was required, and therefore her belief that she could withhold that consent was wrong but not ‘unlawful, unconscionable or illegitimate’ and therefore did not amount to unlawful coercion.

The UFU’s request for declarations as the unlawfulness of the Minister’s conduct was denied.

Discussion

The case gave rise to an interesting discussion of the Minister’s power to give directions under s 8 and what is or is not an operational power.

What is interesting but is not explained is what is to be the role of the is registration board. The FRV Act already provides for the creation of a Firefighters Registration Board (s 149).  This Board is required by s 154:

(a)     to administer the Firefighters Registration Scheme;

(b)     to perform the registration functions prescribed by the regulations in relation to—

(i)     maintaining the Firefighters Register; and

(ii)     including on the Firefighters Register persons who satisfy the competency requirements for inclusion on the Register;

(c)     to perform functions in respect of setting professional capability and standards, including but not limited to—

(i)     the recognition of qualifications and accredited courses of training, including through certificates or other evidence in relation to those matters from professional organisations, higher education bodies or post-secondary technical or vocational educational institutions; and

(ii)     the establishment and approval of competencies that will satisfy the requirements for inclusion on the Firefighters Register; and

(iii)     the development, establishment and maintenance of guidelines about appropriate standards;

What this other Board is required to do is not made clear. At [83] the judge quotes from FRV’s submissions that said:

During the period from at least early 2021 until 17 August 2022 (when the Minister sent the Letter to FRV), representatives of FRV and representatives of the applicant were taking steps with a view to establishing a firefighters registration board that would operate separately to the Statutory Board, given the limited functions of the Statutory Board. The purpose of the proposed firefighters registration board was to register professional career firefighters employed by FRV with the appropriate qualifications, competencies and operational experience specific to the ranks covered by the 2020 Agreement — that is, to ensure firefighters were capable of performing the roles they were employed by FRV to perform.

One of the reasons the Minister gave for withholding her consent to FVR entering into an agreement with the Board was (at [22]):

The potential for duplication between the functions to be performed under the Services Agreement and those to be performed by the Board established by section 149 of the FRV Act (Statutory Board) may create confusion and undermine the legislative objectives of the Statutory Board.

One would have to go through the Act with a fine-tooth comb to identified the ‘limited functions’ of the Statutory Board and why the UFU and FRV seem to think a second registration board is required.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.