News & Media

Federal Court case update

By: Mick Bourke

  11.00 AM 24 April, 2013

Views: 3217

Federal Court proceedings between CFA and the United Firefighters Union (UFU) have concluded. Justice Murphy's decision is unlikely to be handed down before July 2013.

Whilst the case was initiated by the UFU, CFA made counter claims against the UFU to have the court decide the validity and interpretation of many of the clauses in the 2010 Operational Staff Enterprise Agreement that have been in dispute for some time.

Through the court proceedings a number of key issues were argued which I outlined in my previous blog, and these issues are further outlined as follows:

Restricting the ability of CFA to exercise its statutory obligations (Clauses 26, 27, 28 and 122)

CFA argued that the above clauses were unenforceable as they limit the organisation's capacity to determine, identify and appoint firefighters.  CFA believes these matters should be determined by CFA alone and should not be subject any restraints imposed through industrial agreements. CFA believes its arguments are in line with constitutional law and High Court decisions on these matters

Through the proceedings the UFU agreed that a number of clauses do impede the ability of CFA to determine the number, identity and appointment of public sector employees. These are the constitutional limitations contained in the "Referral Act" and the implied limitations in the High Court case Re Australian Education . The arguments before the court centred on the legal enforceability of these matters.

Consultation clauses (13, 14 and 16)

CFA submitted to the Federal Court that the above clauses are either objectionable or not lawful because they limit the ability of CFA to consult with all its people. CFA also submitted that these clauses do not allow non-UFU members to provide input independent of the UFU and exclude non- members from the consultation process. The Fair Work Act requires that consultation be with all employees - not only those who are members.

The validity of the dispute resolution clause (15)

CFA argued that the dispute resolution clause in the Enterprise Agreement provides for the resolution of disputes that are in no way connected with the Agreement, the relationship between the Employer and Employee and the relationship between the Employer and the Union. It is CFA's view that is inconsistent with the Fair Work Act.

Justice Murphy has indicated that a decision will be some time off. I will keep you updated once the decision has been received from the Federal Court and its outcomes considered.

Last Updated: 10 December 2015