I have previously written on a dispute between the United Firefighters Union (UFU) and the Minister responsible for Fire and Rescue Victoria (FRV) and the Minister’s power to give directions to FRV with respect to its response to an industrial dispute – see UFU challenges Minister’s right to give directions for Fire Rescue Victoria (June 7, 2024). 

The issue was whether FRV could enter into an agreement with the Victorian Professional Career Firefighters Registration Board Limited, a Board established by the UFU. This Board had been established separately from the Firefighters Registration Board established by the Fire and Rescue Victoria Act 1958(Vic) s 149. The Minister first wrote to FRV advising them that her consent was required before they could enter into the proposed agreement, and that such consent would not be given. He later directed FRV not to enter into the proposed agreement.

In United Firefighters’ Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510 the UFU argued that the intervention by the Minister was an attempt to coerce FRV not to resolve an industrial issue as it saw fit and that this was a breach of the Fair Work Act 2009 (Cth). The application for a remedy including the imposition of a civil penalty was dismissed. The UFU appealed; United Firefighters’ Union of Australia v Minister for Emergency Services Victoria (No 2) [2025] FCAFC 179 (11 December 2025) is the decision of the Full Federal Court dismissing the appeal (Charlesworth and McElwaine JJ; Rangiah dissenting).

Justice Rangiah

Justice Rangiah gave the first judgement.

The Minister’s direction

The Minister gave a direction under s 8 directing FRV not to enter into the proposed agreement.  The Minister’s power to give a direction is limited, in particular s 8(3) says 

The Minister must not give a direction under subsection (2) in relation to the exercise of the operational functions and powers of Fire Rescue Victoria or the Fire Rescue Commissioner including, but not limited to, a function or power under any of the following provisions of this Act …

There then follows a list of 21 specific sections in the Act.  The trial judge held that the direction was not a direction ‘in relation to the exercise of the operational functions and powers’ and was therefore a direction that the Minister could give. 

On appeal, Justice Rangiah agreed that ‘the phrase “operational functions and powers” … should be regarded as those directed to FRV’s core functions of fire safety, prevention and suppression’ ([105]).  He continued (at [106])

The question then becomes whether any entry by FRV into the Services Agreement would be “in relation to” its core functions of fire safety, prevention and suppression. That depends on the degree of connection between the exercise of the Minister’s power and the FRV’s core functions imported by the phrase “in relation to”.

He concluded (at [125])

On the evidence before the Court, the Register would serve an administrative rather than operational purpose. There would, at best, be only a limited and indirect connection between the services to be provided by VFRB Limited under the Services Agreement and FRV’s core functions of fire safety, prevention or suppression. That connection has not been demonstrated to be sufficiently close to allow any conclusion that the Ministerial Direction directing FRV not to enter the Services Agreement was, “in relation to the exercise of the operational functions and powers”, of FRV.

The direction not to enter into a service agreement with the Victorian Professional Career Firefighters Registration Board Limited was therefore a direction that the Minister had the power to give.

The issue of consent

The Minister first wrote to FRV indicating that, pursuant to s 25(3), FRV was required to obtain the Minister’s written consent before entering into the relevant agreement, and that she would not provide that consent.

Section 25A(3) provides that FRV must obtain the Minister’s written 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 Federal Court held that the proposed agreement with the Victorian Professional Career Firefighters Registration Board Limited was not a type of agreement listed in s 25A(3) and therefore the Minister’s written consent was not required. It followed that the Minister’s letter telling FRV that Ministerial consent was required, and would not be forthcoming, was wrong. However the Minister would only be liable for a breach of the Fair Work Act if her actions were ‘unlawful, illegitimate or unconscionable’ ([72]).

The trial judge found that although the Minister was wrong, her actions did not meet that legal threshold, and even if it did, there was no point in granting the union any relief if the direction under s 8 was lawful and had the same effect, that is restricting FRV’s ability to enter into the proposed agreement.

On appeal, Justice Rangiah said (at [176]-[179]):

To reiterate, s 343(1) of the FW [Fair Work] Act provides, relevantly, that a person must not take any action against another person with intent to coerce the other person to exercise or not exercise a workplace right, or exercise a workplace right in a particular way. As has been mentioned, the authorities require that the action must (1) have been taken with the intent to negate another person’s choice, and (2) be unlawful, illegitimate or unconscionable.

The Refusal of Consent Letter represented that the Minister had the power under s 25A of the FRV Act to refuse her consent for FRV to enter into the Services Agreement and she was exercising that power. The primary judge held that FRV did not require the Minister’s consent to enter into the Services Agreement. The Minister has not disputed that aspect of the primary judge’s reasons.

The Minister conceded that by sending the Refusal of Consent Letter, she took action against FRV with intent to negate FRV’s choice about how to exercise its workplace right to participate in proceedings before the Commission, in that she did not want FRV to exercise that workplace right in a way that would result in FRV entering into the Services Agreement. However, she denied that her action was unlawful, illegitimate or unconscionable. This was an admission that she intended that FRV be left without any “realistic choice as to whether or not to” enter the Services Agreement… 

However, the primary judge rejected the Union’s submission that sending the letter to FRV was unlawful, illegitimate or unconscionable and, accordingly, held that the Minister had not contravened s 343(1) of the FW Act.

Was the Minister’s conduct unlawful? His Honour answered that question ‘no’. He said (at [227]):

The Minister’s assertion that she was entitled to withhold consent and thereby prevent FRV from entering the Services Agreement involved conduct that exceeded the limits of the Minister’s power under the FRV Act. However, it is not suggested that by making that assertion, the Minister engaged in any conduct forbidden by law. The primary judge was correct to conclude that the Minister’s conduct was not “unlawful” for the purposes of s 343(1) of the FW Act.

Was the Minister’s conduct ‘unconscionable’? Also ‘no’ (at [232]):

The primary judge held, as a matter of interpretation of s 25A of the FRV Act and the Services Agreement, that the Minister’s assertion she had a power to refuse consent was wrong. However, the Minister honestly and reasonably thought she had that power. She was simply mistaken. Further, the Minister had a legitimate interest in, and a legitimate basis for, the outcome she sought to achieve in preventing FRV from entering the Services Agreement. It is not possible to conclude that the Minister’s conduct involved a departure from normative standards of expected conduct in an industrial setting that rendered her conduct “unconscionable”.

Was the conduct ‘illegitimate’? The answer to this question was ‘yes’. At [250], Justice Rangiah said:

In sending the Refusal of Consent Letter to FRV, the Minister assumed and purported to exercise a power she did not have, in order to pressure FRV into exercising a workplace right in a particular way. The Minister’s purported exercise of power was ultra vires and invalid. The Minister’s conduct necessarily involved a false and misleading representation that she had, and was entitled to exercise, that power. It is appropriate to characterise the Minister’s conduct as illegitimate.

His honour said (at [251]; emphasis added)

It should be concluded that the Minister contravened s 343(1) of the FW Act by sending the Refusal of Consent Letter to FRV.

He said he would uphold the appeal and remit the matter back to the federal court to determine an appropriate penalty!

Charlesworth and McElwaine JJ

Charlesworth and McElwaine JJ agreed with Rangiah J’s conclusions with respect to the Union’s standing to bring the case and with respect to the power of the minister to give the direction under s 8 (see [255]-[257]). They disagreed that the decision to issue the letter regarding the need for Ministerial consent was a breach of the Fair Work Act. 

First although the Minister did not have the power to refuse consent to FRV entering the agreement with the Board, she did have the power to prevent them doing so through s 8.  They said (at [265]-[266]):

… the Refusal of Consent Letter factually served to put FRV on notice of the Minister’s intent to prevent its entry into the Services Agreement and the intent to coerce could lawfully be given effect under an alternate source of power.  For so long as there existed a lawful mechanism for giving legal effect to that intention, it could not be unlawful to express it.

It matters not that the Refusal of Consent Letter conveyed a false representation as to the source of the Minister’s power to compel FRV to a particular course of action…

That is; the letter conveyed to the UFU that the Minister intended that FRV would not enter into the proposed agreement and given that she had the power to give effect to that intention, albeit by means of a direction under s 8 rather than consent under s 25, putting everyone on notice of her intention was not unlawful. Further the Minister’s reasons for seeking to prevent the agreement were based on legitimate concerns including issues of ‘public transparency, State priorities, oversight, accountability for an entity that would sit beyond public sector requirements, the external impact on public sector employees, the potential to fetter the employment power of FRV and the public cost of the proposed arrangement’ ([268]).  It was not ‘unconscionable’ to raise these concerns and to attempt to exercise powers to give effect to the Minister’s determination of those matters.

Their Honours said (at [269]):

…, it is unnecessary to decide whether invalid administrative action accompanied by an intention to coerce constitutes a contravention of s 343 of the FW Act in every case. Each case is to be decided having regard to its discrete factual and legal context. Here, there was an erroneous assertion that the power to compel FRV to a course of action resided in s 25A, an assertion made in circumstances where the power resided elsewhere in the same enactment. There is no analogy in cases where a person mistakenly asserts a power to achieve an objective where there is no other power available, nor in cases where a power is exercised for an improper purpose.

Conclusion

Justice Rangiah confirmed that the union had standing to bring an allegation of breach of the Fair Work Act. He also confirmed that the Minister had the power to give the relevant direction as it was not a direction made ‘in relation to the exercise of the operational functions and powers of Fire Rescue Victoria’.  Justices Charlesworth and McElwaine JJ agreed.

Justice Rangiah found that the Minister’s action in writing to FRV, advising them that they could not enter the proposed agreement without her consent and that her consent was not forthcoming was wrong and was an illegal effort to coerce FRV in its management of an industrial dispute. He would have referred the matter back to the Federal Court to determine a penalty to be applied. Here Justices Charlesworth and McElwaine JJ disagreed finding that although the Minister’s letter was wrong, it was not unlawful nor unconscionable nor illegal given the Minister did have the power to obtain her purposes of prohibiting the agreement. By a majority of 2:1 the appeal was dismissed.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.