4 yearly review of modern awards – Fire Fighting Industry Award 2010
[2016] FWCFB 8025
•15 NOVEMBER 2016
| [2016] FWCFB 8025 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/202)
Fire fighting services | |
JUSTICE ROSS, PRESIDENT | MELBOURNE, 15 NOVEMBER 2016 |
4 yearly review of modern awards – Fire Fighting Industry Award 2010 – variation to permit part-time employment in public sector fire services and consequential variations – s.134 modern awards objective – objects of the Fair Work Act 2009 (Cth) – variation made.
CONTENTS
Chapters | Paragraph | |
1. | Introduction | [1] |
2. | Legislative Context | |
2.1 General | [12] | |
2.2 The Modern Awards objective | [24] | |
3. | The General Context | |
3.1 Trends in part-time work | [42] | |
3.2 Research | [51] | |
3.3 Part-time work and modern awards | [59] | |
4. | The Fire Fighting Award | [65] |
5. | Consideration | [119] |
6. | Conclusion | [216] |
List of Attachments | |
1 | Victorian Fire Services – Proposed draft determination |
2 | Table of provisions for part-time and/or casual employment in modern awards |
3 | National jurisdiction comparison industrial agreements 2015—updated, version 4 – June 2015 |
4 | List of research articles and reports |
1. Introduction
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review). The 122 modern awards are being reviewed in four sequential stages. The Fire Fighting Industry Award 2010 (the Fire Fighting Award) is in Group 2 and this decision deals with some proposed variations to that award in respect of the availability of part-time work and the introduction of a day shift roster.
[2] Clause 10 of the Fire Fighting Award states:
‘An employer in the public sector may only employ a person in a classification in this award on a full-time basis. A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.’
[3] Clause 10 confines employment by public sector employers to full-time employment and prevents employment on other bases, including part-time employment. By contrast, clause 11.1 expressly provides that private sector employers may employ a person in a classification specified in the award ‘on a full-time or part-time basis’. Clause 11.4 then defines part-time employment (as referred to in clause 11.1) in the following terms:
‘11.4 Part-time employment
(a) A part-time employee is an employee who:
(i) works less than full-time hours of 38 ordinary hours per week;
(ii) has reasonably predictable hours of work; and
(iii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
(b) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
(c) Any agreed variation to the hours of work will be recorded in writing.
(d) An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
(e) All time worked in excess of the hours as agreed under clause 11.4(b) or varied under clause 11.4(c) will be overtime and paid for at the rates prescribed in clause 26—Overtime.
(f) A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the appropriate weekly rate prescribed in clause 16—Minimum wages—private sector.’
[4] The Metropolitan Fire and Emergency Services Board (MFB) and the Country Fire Authority (CFA) (collectively, the Victorian Fire Services) are seeking to vary the Fire Fighting Award to remove the existing prohibition against part-time employment in the public sector, and to make consequential changes to rostering provisions in the Award.
[5] The proposed variation seeks to amend clause 10, to mirror the provisions in clause 11 that apply to private sector employees, where part-time work is permitted. The proposed variation also includes a new clause 22.4 to provide for a day work shift roster, consistent with clause 23.3 of the modern award, which applies to private sector employees. Consequential amendments are proposed to clauses 22.2(a), 22.3, 22.5(b), 1 and 22.8(b) and (e),2 and clauses 26.1, 27, and 28.3(a) of the modern award. The terms set out in the draft determination set is out at Attachment 1.
[6] The central issue between the Victorian Fire Services and the United Firefighters’ Union of Australia (UFUA) is whether the proposed variations are ‘necessary to achieve the modern awards objective’, within the meaning of s.138.
[7] The Victorian Fire Services contend that the capacity to offer part-time employment is essential to ensure that the safety net of minimum terms and conditions of employment is fair and relevant.The inclusion of part-time work in the Fire Fighting Award is said to be necessary to meet the modern awards objective and the Victorian Fire Services rely on four main propositions in support of the proposed variation:
(i) Part-time work arrangements are a community standard across the Australian workplace, and form part of the industrial standard in firefighting and emergency services.
(ii) The Award in its current form does not achieve the modern awards objective because the availability of part-time work is a necessary element of the safety net of fair and relevant terms and conditions.
(iii) The prohibition against part-time work could have a discriminatory effect.
(iv) The prohibition against part-time work offends the principles in Re AEU. 3
[8] It is convenient to note here that for reasons which will become apparent it is unnecessary for us to deal with propositions (iii) and (iv).
[9] The UFUA contends to the contrary – that having regard to the relevant award history and the evidence in the proceedings the variations are not necessary to achieve the modern awards objective.
[10] In the event that the Commission decided that it was necessary to vary the Fire Fighting Award to provide, in some form, for part-time employment in public sector fire services then the UFUA contended that the award term should be more limited than that sought by the Victorian Fire Services.
[11] We deal first with the legislative context before turning to some broader contextual issues.
2. The Legislative Context
2.1 General
[12] The legislative context for the Review is canvassed in more detail in the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues Decision 4 (the Preliminary Jurisdictional Issues Decision), we adopt and apply that decision.
[13] Section 156 of the Act provides that the Commission must conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014. Subsection 156(2) deals with what must be done in the Review:
‘(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards.
(c) must not review, or make a determination to vary, a default fund term of a modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.’
[14] Subsection 156(5) provides that in a Review each modern award must be reviewed in its own right, however, this does not prevent the Commission from reviewing two or more modern awards at the same time.
[15] We accept that the requirement in s.156(5) to review each modern award ‘in its own right’, is intended to ensure that the Review is conducted ‘by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations’. 5 However, while the review of each modern award must focus on the particular terms and operation of the particular award, this does not mean that the review of a modern award is to be confined to a single holistic assessment of all of its terms.6 In these proceedings we are considering whether the Fire Fighting Award achieves the modern awards objective in relation to the manner in which it deals (or does not deal) with certain matters relating to part-time employment and rostering arrangements.
[16] In addition to s.156 a range of other provisions in the Act are relevant to the Review: s.3 (objects of the Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s.134 (the modern awards objective); s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions and exercise of powers of the Commission); s.578 (matters the Commission must take into account in performing functions and exercising powers); and Division 3 of Part 5-1 (conduct of matters before the Commission).
[17] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:
‘FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWC performs its functions and exercises its powers efficiently etc. (see section 581).’
[18] Section 578 states:
‘In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’
[19] As stated in s.578(a), in performing functions and exercising powers under a part of the Act (including the Review function under Part 2-3 Modern Awards) the Commission must take into account the objects of the Act and any particular objects of the relevant part. The object of Part 2-3 is expressed in s.134, the modern awards objective. The object of the Act is set out in s.3, which provides, relevantly for present purposes:
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations;…
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and …’
[20] In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission is not bound by the rules of evidence and procedure (s.591) and may inform itself in relation to any matter before it in such manner as it considers appropriate (s.590(1)). Pursuant to those procedural powers the Commissions published a Background Paper on 20 May 2016 to assist the parties. The Background Paper deals with, among other things, the relevant arbitral history; a review of part-time provisions in modern awards; some data on part-time employment generally and a synopsis of some research articles.
[21] The Review is to be distinguished from inter partes proceedings. Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 7 The Commission is not required to make a decision in the terms applied for (s.599) and, in a Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions, such as ss.134, 138 and 578.
[22] The scope of the Review was considered in the Preliminary Jurisdictional Issues Decision and the following propositions are drawn from that decision:
(i) The Review is broader in scope than the Transitional Review of modern awards completed in 2013.
(ii) In conducting the Review the Commission will have regard to the historical context applicable to each modern award.
(iii) The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made.
(iv) Variations to modern awards should be founded on merit based arguments. The extent of the argument and material required will depend on the circumstances.
[23] We note here that the historical context applicable to the Fire Fighting Award is a matter of contention between the parties. We deal with this dispute later, in section 4. We now turn to the relevance of the ‘modern awards objective’ to the Review.
2.2 The Modern Awards Objective
[24] The modern awards objective applies to the performance or exercise of the Commission’s modern award powers, which are defined to include the Commission’s functions or powers under Part 2-3 of the Act. The Review function is set out in s.156, which is in Part 2-3 and so will involve the performance or exercise of the Commission’s modern award powers. It follows that the modern awards objective applies to the Review.
[25] The modern awards objective is set out in s.134 of the Act. It states:
‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’
[26] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 8 The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.9 No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[27] Further, it is not necessary to make a finding that the modern award under review has failed to satisfy at least one of the s.134(1) considerations. 10 As the Full Federal Court said in National Retail Association v Fair Work Commission:
‘It is apparent from the terms of s 134(1) that the factors listed in (a)–(h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim.’ 11
[28] While the Commission must take into account the s.134 considerations, the relevant question is whether the modern award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions. Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. So much is evident from the s.134 considerations themselves, which focus on the perspectives and interests of the employees (e.g. s.134(1)(a) and (da)) and the employers (e.g. s.134(1)(d) and (f)). 12
[29] In the context of s.134(1) we think the word ‘relevant’ is intended to convey that a modern award should be suited to contemporary circumstances. As stated in the Explanatory Memorandum to what is now s.138:
‘527 … the scope and effect of permitted and mandatory terms of a modern award must be directed at achieving the modern awards objective of a fair and relevant safety net that accords with community standards and expectations.’ 13 (emphasis added)
[30] Section 138 of the Act is also relevant, it emphasises the importance of the modern awards objective in these terms:
‘A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’
[31] To comply with s.138 the terms included in modern awards must be ‘necessary to achieve the modern awards objective’.
[32] What is ‘necessary’ in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the submissions and evidence directed to those considerations. 14
[33] In the present proceedings the UFUA contends that, prima facie, the Fire Fighting Award achieved the modern awards objective at the time it was made and at that time the Commission had made a determination that part-time employment should not be a feature of public sector fire services. It is in this context that the UFUA submits that: ‘… the Commission’s jurisdiction under s.156 is necessarily focussed on changed circumstances’ 15.
[34] The UFUA’s submission – and in particular the use of the language of jurisdiction – was the subject of some modification during the course of closing oral argument. 16 The basis on which the proposition is now put is not precisely clear. If it is put that the historical context is generally relevant to the exercise of the Commission’s discretion in the Review, then we accept that proposition – though as we shall see the historical context to these proceedings is of limited relevance.
[35] However, to the extent the UFUA is contending that in order to enliven its discretion to vary a modern award in the Review the Commission must first be satisfied that since the making of the modern award there has been a change in circumstances such that the modern award is no longer meeting the modern awards objective, we reject that proposition. It is not supported by the terms of s.156 or the statutory context.
[36] The relevance of the historical context was the subject of some debate in the proceedings which led to the Preliminary Jurisdictional Issues decision. In that decision the Full Bench said:
‘The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. We agree with ABI’s submission that some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.
In conducting the Review the Commission will also have regard to the historical context applicable to each modern award. Awards made as a result of the award modernisation process conducted by the former Australian Industrial Relations Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at the time they were made the modern awards now being reviewed were consistent with the modern awards objective. The considerations specified in the legislative test applied by the AIRC in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective in s.134 of the FW Act. 17 In the Review the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.
Although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions. In another context three members of the High Court observed in Nguyen v Nguyen:
“Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.” 18
While the Commission is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Commission. 19 As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (t/as Parkview Hotel) (Cetin)20:
“Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so.” 21
These policy considerations tell strongly against the proposition that the Review should proceed in isolation unencumbered by previous Commission decisions. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.’ 22
[37] It is apparent from the above extract that the adoption of the prima facie position that the modern award being reviewed achieved the modern awards objective at the time it was made is but an example of the general proposition that previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.
[38] As observed by the Full Bench in the Preliminary Jurisdictional Issues decision, while it is appropriate to take account of previous decisions relevant to a contested issue arising in the Review it is necessary to consider the context in which those decisions were made. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:
● the legislative context which pertained at that time may be materially different from the Act;
● the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or
● the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision will be a factor in considering the weight to be accorded to the decision.
[39] It seems to us that the proposition advanced by the UFUA may seek to elevate what are policy considerations which favour generally following previous Full Bench decisions to the level of a statutory requirement. Such a view is erroneous. It seeks to place a constraint on the discretion conferred by s.156(2)(a)(i) which is not warranted by the terms of s.156 or the relevant statutory context and purpose. Such an approach would impose a datum point (when the modern award was made) against which any proposal to vary the award is to be measured. If adopted that test would require the proponent of a variation to establish that there has been a material change in circumstances since the modern award was made. There is no such express or implied requirement in s.156. Further, the qualified discretion to vary modern award minimum wages for work value reasons (see s.156(3) and (4)) does not contain a datum point requirement and it would be somewhat incongruous to imply such a requirement into s.156(2)(a)(i).
[40] To unnecessarily focus on whether there has been a change since the Fire Fighting Award was made would obfuscate the Commission’s primary task in the Review, determining whether the modern award achieves the modern awards objective. To adopt such a test would be to add words to the test of s.156 in circumstances where it is not necessary to do so in order to achieve the legislative purpose. The adoption of the proposed test would also be an unwarranted fetter on the exercise of what the legislature clearly intended would be a discretionary decision.
[41] We now turn to deal with some general contextual issues relevant to the matters before us.
3. The General Context
3.1 Trends in part-time work
[42] Definitions of part-time employment vary depending on the data source used. According to the ABS, part-time employment is defined as when a person usually works less than 35 hours a week, in all jobs. 23 Full-time employment is defined by the ABS as when a person usually works 35 hours or more in a week, in all jobs. In contrast, the OECD defines part-time employment as when a person usually works less than 30 hours a week, in their main job.24
[43] Changes in the proportions of full-time and part-time employment of total employment are shown in Chart 1. Over the last decade, full-time employment decreased from 71.2 per cent of total employment in March 2006, to 68.7 per cent in March 2016. This was offset by an increase in the proportion of part-time employment, which rose from 28.8 per cent of total employment in March 2006 to 31.3 per cent of total employment in March 2016.
Chart 1: Proportions of full-time and part-time employment, March 2006 to March 2016
Note: Data used are seasonally adjusted.
Source: ABS, Labour Force, Australia, Mar 2016, Catalogue No. 6202.0.
[44] The proportions of part-time employment to total employment from selected countries in the OECD in 2014 are shown in Chart 2. Australia had the third highest proportion of part-time employment (25.2 per cent) out of all countries in the OECD, with only Switzerland (26.9 per cent) and the Netherlands (38.5 per cent) having higher proportions of part-time employment. When limited to G20 countries, Australia had the highest proportion of part-time employment. Compared with the OECD average, the proportion of part-time employment in Australia was 8.2 percentage points higher.
Chart 2: OECD part-time employment proportions of total employment, 2014, selected countries
Source: OECD, Labour Market Statistics: Full-time part-time employment, OECD Employment and Labour Market Statistics (database), 2014.
[45] Chart 3 shows the changes in the gender composition of part-time employment. While females account for the majority of part-time employment, the proportion of part-time employment made up by females has decreased over the past decade, falling 2.8 percentage points to 68.5 per cent in March 2016. This was offset by a rise in the proportion of male part-time employment, which increased by 2.8 percentage points to 31.5 per cent in March 2016. Although the levels of both part-time employment of males and females increased over the past decade, the increase was greater for males.
Chart 3: Male and female proportions of total part-time employment
Note: Data used are seasonally adjusted.
Source: ABS, Labour Force, Australia, Mar 2016, Catalogue No. 6202.0
[46] Table 1 presents the composition of part-time employment by age group, from March 2006 to March 2016. The proportion of part-time employment comprised of 25–34 year olds and those over 55 years increased over this period. The greatest increase reported was among those over 65 years, whose proportion of part-time employment increased by 3.3 percentage points.
[47] However, the top three age groups that account for the highest proportions of part-time employment (15–24 years, 35–44 years and 45–54 years) experienced a decline over the past 10 years, with the largest decrease occurring among 35–44 year olds, where the proportion of part-time employment decreased by 3.6 percentage points.
Table 1: Proportion of part-time employment by 10-year age groups, March 2006 and March 2016
Age group | March 2006 | March 2016 | Percentage point change |
(%) | (%) | (ppt) | |
15–24 years | 27.4 | 26.4 | –0.9 |
25–34 years | 15.4 | 16.8 | 1.4 |
35–44 years | 21.6 | 17.9 | –3.6 |
45–54 years | 18.9 | 17.0 | –1.9 |
55–64 years | 13.2 | 14.9 | 1.8 |
65 years and over | 3.6 | 6.9 | 3.3 |
Note: Data used are original.
Source: ABS, Labour Force, Australia, Detailed - Electronic Delivery, Mar 2016, Catalogue No. 6219.0.55.001.
[48] Table 2 presents the share of part-time employment as a proportion of total part-time employment for each industry.
[49] Industries with the greatest increase in part-time employment were Accommodation and food services, Health care and social assistance and Public administration and safety. Industries with the greatest decrease in part-time employment were Retail trade, Manufacturing and Agriculture, forestry and fishing.
Table 2: Proportions of part-time employment by industry, February 2006 and February 2016
Industry | February 2006 | February 2016 | Percentage point change |
(%) | (%) | (ppt) | |
Agriculture, forestry and Fishing | 3.8 | 2.6 | –1.2 |
Mining | 0.1 | 0.1 | 0.0 |
Manufacturing | 5.0 | 3.6 | –1.4 |
Electricity, gas, water and waste services | 0.3 | 0.4 | 0.1 |
Construction | 5.0 | 4.1 | –0.9 |
Wholesale trade | 2.1 | 1.6 | –0.5 |
Retail trade | 18.8 | 17.3 | –1.5 |
Accommodation and food services | 11.4 | 13.7 | 2.4 |
Transport, postal and warehousing | 3.2 | 3.7 | 0.5 |
Information media and telecommunications | 1.5 | 1.2 | –0.3 |
Financial and insurance services | 2.4 | 2.1 | –0.3 |
Rental, hiring and real estate services | 1.9 | 1.5 | –0.4 |
Professional, scientific and technical services | 5.5 | 6.1 | 0.6 |
Administrative and support services | 4.9 | 5.0 | 0.1 |
Public administration and safety | 3.2 | 3.9 | 0.7 |
Education and training | 8.9 | 9.2 | 0.3 |
Health care and social assistance | 15.4 | 16.9 | 1.5 |
Arts and recreation services | 2.8 | 2.9 | 0.1 |
Other services | 3.9 | 4.0 | 0.2 |
Note: Data used are original.
Source: ABS, Labour Force, Australia, Detailed - Quarterly, Mar 2016, Catalogue No. 6219.0.55.003.
[50] Table 3 presents the proportion of part-time employment by occupation. Five occupations experienced decreases in their share of total part-time employment, while it remained constant for Managers. Only Community and personal service workers and Professionals had increases in their proportions of total part-time employment.
Table 3: Proportions of part-time employment by occupation, February 2006 and February 2016
Occupation | February 2006 | February 2016 | Percentage point change |
(%) | (%) | (ppt) | |
Managers | 5.6 | 5.6 | 0.0 |
Professionals | 16.3 | 17.9 | 1.6 |
Technicians and trades workers | 6.7 | 6.4 | –0.3 |
Community and personal service workers | 14.1 | 18.6 | 4.5 |
Clerical and administrative workers | 19.7 | 16.5 | –3.2 |
Sales workers | 19.2 | 17.7 | –1.5 |
Machinery operators and drivers | 3.4 | 3.0 | –0.4 |
Labourers | 15.0 | 14.3 | –0.7 |
Note: Data used are original.
Source: ABS, Labour Force, Australia, Detailed - Quarterly, Mar 2016, Catalogue No. 6219.0.55.003.
3.2 Research
[51] A list of research articles concerning part-time work is set out at Attachment 4.
[52] The research suggests that the proportion of part-time workers has risen steadily in Australia, 25 with part-time workers more likely to be women,26 and more likely to work in low skilled occupations compared with full-time workers.27 However, the growth of part-time work has increased for both male and female workers,28 with Healy (2014) stating that a ‘distinctive feature of the Australian labour market is a much higher prevalence of part time employment for both sexes’.29
[53] Female workplace participation rates have increased in proportion to the growing availability of part-time employment. 30 Barriers to the increased availability of quality part-time work include gendered workplace cultures resistant to change, managerial skill deficits in managing part-time workers, and poor administrative processes and systems built around the template of full-time jobs.31
[54] Research is varied on the physical and cognitive effects of part-time work. One study suggests that when working hours are less than around 25 hours a week for employees over 40 years of age, there is a positive correlation with improved cognitive functioning. 32 However, the paper by McDonald et al tentatively indicates that part-time emergency personnel, such as fire rescue workers, exhibit higher body mass index and body fat levels and lower aerobic capabilities and strength compared to full-time personnel, which may affect rates and patterns of on-duty injuries.33 We note here that the UFUA relies on the MacDonald et al study in opposing the variations sought by the Victorian Fire Services.
[55] The MacDonald paper is a literature review of six papers that compared physical characteristics and performance of part-and full-time tactical personnel. Of the six papers assessed, three reviewed physiological and performance measures of military personnel, and three concerned firefighters – two studies of male and female personnel in the Swedish Fire & Rescue Service, and one of male trainee firefighters as well as male and female civilians in the United Kingdom.34 One of the Swedish studies involved a questionnaire and required subjects to self-assess their fitness levels; the other measured physiological responses using laboratory tests. The Swedish study that conducted laboratory tests found ‘no overall statistically significant differences between part-time and full-time firefighters’.35
[56] The United Kingdom study assessed the fitness of recruit firefighters before and after the removal of a cardiorespiratory fitness standard as an entry standard to the UK Fire and Rescue Service, and found that lowering the standard led to worse health outcomes, regardless of the nature of employment.36
[57] The authors of the MacDonald paper state that ‘caution should be applied in the interpretation and application of these findings to practice’37 and, in any event, the publication of a single paper, studying a mix of professions, none of which include Victorian or Australian firefighters, that are described by the authors as containing ‘non-conclusive’ results, is of limited assistance.
[58] We also note that the UFUA relies on the June 2008 Productivity Commission Staff Working Paper.38 The findings cited by the UFUA are not causative but correlative, and offered without explanation. The UFUA acknowledge that the conclusions in the Productivity Commission paper, and the MacDonald paper, are non-conclusive and not directed at Victorian firefighters, or emergency services in Australia at all.
3.3 Part-time work and modern awards
[59] The existing part-time provisions in many modern awards have their genesis in the Stage 2 implementation of the 1994 Family Leave Test Case 39 decision. In that decision the AIRC considered the issue of inserting part-time work provisions into federal awards,40 noting that:
‘It is apparent from the evidence that part-time employees are an integral part of the labour force. Part-time employment is one of the ways in which families reconcile their work and family commitments. The evidence shows an employee preference for part-time work, particularly among women.’ 41
[60] The AIRC concluded that:
‘Upon application appropriate part-time work provisions should be inserted into awards which do not currently provide for part-time work. We have formed this view as a general proposition on equity and consistency grounds.’ 42
[61] The AIRC set out the matters that should be taken into account in the development of ‘fair and equitable part-time work provisions’, namely: 43
- the need to ensure that part-time employees are provided pro-rata entitlements to benefits available to full-time employees, such as equitable access to training and career path opportunities;
- part-time work needs to be clearly distinguished from casual employment, and accordingly have regularity in working hours; and
- part-time work clauses in awards should include anti-discrimination provisions to ensure part-time employees are not discriminated against in relation to employment opportunities, training, personal development and career advancement.
[62] The table at Attachment 2 identifies the clauses providing for part-time work in all 122 modern awards, and whether or not those clauses contain detailed parameters around accessing part-time work entitlements. Four key elements which are generally present in the terms of the 116 modern awards which provide for part-time employment, namely, that a part-time employee:
- is engaged to work less than 38 hours per week;
- has reasonably predictable hours of work;
- receives pro rata pay and conditions; and
- has a written agreement as to the pattern of work.
[63] Of the 116 modern awards that permit part-time employment, only seven contain some additional qualification or industry-specific matter relating to part-time work. 44 The six modern awards which do not provide for part-time employment are:
(i) Road Transport (Long Distance Operations) Award 2010 (but does provide for casual employment);
(ii) Maritime Offshore Oil and Gas Award 2010 (but provides for relief or project-based employment);
(iii) Seagoing Industry Award 2010 (but does provide for casual employment);
(iv) Stevedoring Industry Award 2010 (but does provide for casual employment, and for less than full engagement);
(v) Mobile Crane Hiring Award 2010 (but does provide for casual employment, and part-time work for casual employees); and
(vi) Professional Diving Industry (Industrial) Award 2010 (but does provide for casual employment).
[64] In relation to awards (i)–(iv), it is likely that the nature of the work means that employees are away from home for long periods of time creating a practical impediment to the operation of part-time employment.
4. The Fire Fighting Award
[65] The Fire Fighting Award covers ‘national system’ employers and employees throughout Australia in the ‘fire fighting industry’, as defined. 45
[66] Relevantly, by virtue of sections 14, 30D and 30N of the Act, ‘national system employers’ include constitutional corporations, the Commonwealth and Commonwealth authorities, body corporates incorporated in a Territory (and persons who carry on an activity in a Territory of Australia) 46 and any State that has referred its legislative powers to the Commonwealth, but only to the extent those powers have been so referred (ReferringStates).47 ‘National system employees’ similarly include individuals employed by one of the abovementioned employers.48 Currently, Victoria is the only Referring State to have referred its powers with respect to State public sector employees to the Commonwealth (subject to certain limitations).49
[67] It is common ground that the MFB and CFA are public entities under the Public Administration Act 2004 (Vic) and that the public sector provisions contained in the Fire Fighting Award apply to the MFB and the CFA as public sector employers. The Fire Fighting Award also covers the MFB and the CFA by virtue of the fact that both entities are constitutional corporations. 50
[68] The Fire Fighting Award does not cover employees that are excluded from award coverage under the Act, or employers and employees covered by a modern enterprise award/instrument or a state reference public sector modern award/transitional award. 51 It is common ground that the only public sector fire services currently covered by the Fire Fighting Award are those operating in Victoria and the territories. State industrial instruments currently govern the terms and conditions of employment for firefighters that are employed by public sector fire services operating in Queensland, New South Wales, Tasmania, South Australia and Western Australia. The parties in the present proceedings are not aware of whether any of these public sector fire services are, like the MFB and CFA, constitutional corporations and therefore covered by the Fire Fighting Award.
[69] Given the above, it appears that there are four public sector fire services currently covered by the Fire Fighting Award, that is:
(a) the MFB;
(b) the CFA;
(c) the Australian Capital Territory Fire & Rescue (ACTFR); and
(d) the Northern Territory Fire & Rescue Service (NTFRS). 52
[70] The MFB is a statutory authority constituted under the Metropolitan Fire Brigades Act 1958 (Vic) (the MFB Act). Its functions include providing for fire suppression and fire prevention services in the metropolitan district; providing for emergency prevention and response services in the metropolitan district; and carrying out any other functions conferred on the Board. 53
[71] The MFB currently employs approximately 1,909 firefighters who provide a 24 hour response to emergencies across the Melbourne metropolitan fire district. The MFB also provides community protection, education services and emergency response from strategically located fire stations and specialist departments.
[72] The CFA is a statutory body set up under the Country Fire Authority Act 1958 (CFA Act) and it carries out similar services in regional and country areas and Melbourne’s outer urban areas to those provided by the MFB in metropolitan areas. The CFA has a general duty to take all necessary steps for the prevention and suppression of fires, the protection of life and property in case of fire and the general control of all stations and brigades in the country area of Victoria. 54
[73] Currently, the CFA has approximately 1,025 operational employees, 879 of which are full-time career firefighters based at one of the CFA’s 34 integrated stations. The CFA also has approximately 55,341 volunteers; 35,793 of which are operational volunteers.
[74] Each of the four public sector fire services currently covered by the Fire Fighting Award is covered by an enterprise agreement. MFB operational employees who are covered by the modern award are covered by the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (MFB Agreement). The terms and conditions of CFA operational employees who are covered by the modern award are covered by the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (CFA Agreement).
[75] Each of these agreements provides that employees cannot be employed on a part-time basis other than by agreement with the UFUA. 55 The agreements also provide for a process of extensive consultation between the MFB and the CFA, and the UFUA, before any change to the employment relationship is implemented.56
[76] Recently, the Emergency Management Act 2013 (Vic) established Emergency Management Victoria which is tasked with, among other things, maximising the ability of the emergency management sector to work together. The MFB and CFA increasingly work together, and with other emergency services agencies, to ensure maximum and effective use of systems and resources. Smaller private sector employers also provide discrete services throughout Victoria with employees who are also covered by the Award.
[77] Part-time work in the ACTFR is permitted in the circumstances prescribed by clause 12, Section J, and clause 147 of the ACT Public Service Act Fire & Rescue Enterprise Agreement 2013–2017.
[78] Part-time work in the NTFRS is permitted in the circumstances prescribed by clauses 42.15(a)(ii) and 57 of the Northern Territory Public Sector Fire and Rescue Service 2011-2013 Enterprise Agreement.
[79] Other states and territories have their own publicly funded fire fighting services as well as a number of private operators. The nature of the fire fighting services in each state is broadly similar to those provided in Victoria. However, the manner in which employees of the various fire fighting services are employed, and their terms and conditions of employment, differ with respect to part-time work. We deal with those differences later.
[80] As mentioned earlier, the historical context relevant to the Fire Fighting Award is a matter of contention in these proceedings.
[81] The Fire Fighting Award was created by the Australian Industrial Relations Commission (AIRC) during the award modernisation process. Before the commencement of the modern Award, there was no firefighting services industry award operating across Australia. In Victoria, the Victorian Firefighting Industry Employees Interim Award 2000 (VFIE 2000 Award) covered most employees and employers in the firefighting industry throughout Victoria, including the MFB and CFA and, from 1 January 2005, private sector employers. The predecessor award to the VFIE 2000 Award was the Victorian Firefighting Industry Employees Interim Award 1993 (VFIE 1993 Award).
[82] The VFIE 1993 Award only provided for employees to be engaged on a 38 hour week, over a roster cycle of eight weeks, being two 10 hour day shifts followed by two 14 hour night shifts. This shift pattern is known as the 10/14 Roster. The 10/14 Roster has been the standard method for arranging the work of most firefighters in the various public sector fire services in Australia, although most state fire fighting services provide some flexibility in hours of work.
[83] Item 49(8)(b) of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) required the Commission to review all awards during the interim period to determine that, where appropriate, each award “contains provisions enabling the employment of regular part-time employees”. A similar provision was contained in Item 51(7)(b) of Schedule 5 of the WROLA Act that applied after the end of the interim period.
[84] The AIRC set down a number of principles to be considered during the Award Simplification process. Relevantly, principle 4 stated:
- where appropriate, it includes provisions enabling the employment of regular part-time employees; …’ 57
‘4. When varying an award pursuant to these principles, the Commission will seek to ensure that at the end of the process the award has the following characteristics:
…
[85] The inclusion of part-time provisions in the VFIE 1993 Award was considered during the Award Simplification process.
[86] As part of the Award Simplification process, the UFUA made an application to vary the VFIE 1993 Award pursuant to Item 49 of the WROLA Act. 58 The issues in contention were unable to be resolved as at 30 June 1998 (the end of the ‘interim period’) and consequently became the subject of Commission review pursuant to Item 51 of the WROLA Act.59
[87] The CFA initially filed submissions proposing to vary the 10/14 roster provisions to allow for the introduction of part-time work, 60 but following a consultative process the parties filed a joint submission in relation to, among other things, the inclusion of part-time provisions, which said:
‘The parties consider that it is not appropriate to employ part-time firefighters or officers in the CFA.’ 61
[88] A further joint submission was subsequently filed which expanded on this position:
‘B. PART-TIME EMPLOYMENT
8. The parties submit that, having regard to the nature of the industry and of the firefighting occupation, it is not appropriate to employ part-time firefighters and officers in the CFA. Accordingly, the Commission need make no variation to the Award in this regard.’ 62
[89] The oral submissions advanced in respect of this issue were confined to the following statement by counsel for the UFUA:
‘So far as regular part-time employment is concerned, the Commission can see at the bottom of page 2, it is succinctly stated, that the parties have the view that it is not appropriate to employ part-time firefighters and officers in the CFA.’ 63
[90] The decision 64 handed down by Commissioner Hingley dealt primarily with matters which remained in contention and did not address the inclusion of part-time employment.
[91] The award was varied and titled the Victorian Firefighting Industry Employees Interim Award 2000 (the VFIE 2000 Award). The VFIE 2000 Award provided that the ordinary working hours for employees to be 38 hours per week, over a cycle of eight weeks, with two 10 hours days shifts followed by two 14 hour night shifts. 65
[92] On 28 March 2008 the Minister for Employment and Workplace Relations signed an award modernisation request pursuant to s.576C(1) of the Workplace Relations Act 1996 (the WR Act). The WR Act required the Commission (then known as the Australian Industrial Relations Commission (AIRC)) to complete an award modernisation process in accordance with the award modernisation request.
[93] As part of this process, the AIRC established a list of priority industries and occupations and laid down a timetable for the making of modern awards in relation to those industries and occupations. Firefighting services were dealt with in Stage 4 of the modernisation process.
[94] During the award modernisation process, the AIRC considered both the hours of work provisions for public sector employment and the inclusion of part-time provisions in the Fire Fighting Award.
[95] The hours of work provisions in the VFIE Award were ultimately included in the Fire Fighting Award. However, the Full Bench of the AIRC noted the flexibility afforded to the private sector and the restrictions placed on the public sector with regard to hours of work and rostering, and stated that these matters ‘should be revisited at a time when it is practicable to canvass more extensive argument on these issues’. 66
[96] In making the Fire Fighting Award, the AIRC considered the hours of work provisions for public sector employment as well as the inclusion of part-time provisions. The Award Modernisation Full Bench ultimately included the existing hours of work provisions contained in the VFIE Award, including the application of the 10/14 roster, but noted the discrepancy in the flexibility afforded to the private sector:
‘We acknowledge that the 10/14 roster is the standard method for arranging the work of most firefighters in the various public sector fire services in Australia. It is workable in a large fire service which operates fire stations on a 24 hours a day, seven days a week basis. However, we are not persuaded that a public sector employer covered by a modern award for the fire fighting industry should be prevented from employing firefighters except on a 10/14 roster. So far as the private sector is concerned, we note the submissions of Transfield which raise the realistic possibility that its key client may require day shift only fire and rescue services. The modern award makes provision for that possibility in the private sector and allows a greater degree of flexibility in hours of work and rostering in that sector. In the public sector it permits employment on bases other than the 10/14 roster provided that the employee receives no less than they would have received on the 10/14 roster. We have also included “special roster” provisions adapted from the part of the Victorian Firefighting Award that applies to the Country Fire Authority (CFA) on the basis that this was one way in which this can be achieved. It may be that the hours of work and rostering provisions in the modern award should be revisited at a time when it is practicable to canvass more extensive argument on these issues.’ 67
[97] The AIRC’s initial exposure draft of the Fire Fighting Award provided for part-time work in both the public and private sectors. Submissions were made on behalf of a number of major fire fighting services throughout Australia (including the MFB and CFA) in support of the inclusion of such provisions. The CFA ultimately elected not to pursue its application for the inclusion of part-time work in the Award. In its decision regarding the making of the Fire Fighting Award, the AIRC stated:
‘The exposure draft [of the Fire Fighting Industry Award] made provision for part-time employment. The UFUA made strong submissions against that position and contended that the Commission has already made a “determination” that part-time employment is not appropriate in this industry. That contention appears to be based on the award simplification decision by Commissioner Hingley in relation to the Victorian Firefighting Award. As appears from the UFUA’s own submissions, part-time employment had not been part of that award and the CFA made application for the inclusion of part-time employment as part of the award simplification proceedings for that award. The UFUA filed evidence arguing against the CFA’s application. However, ultimately, the CFA abandoned its claim so that there was a consent submission against the inclusion of part-time employment. Commissioner Hingley’s decision makes no mention of part-time employment. In those circumstances, we do not see that decision as constraining us from considering for ourselves whether part-time employment is appropriate in this industry and we are far from persuaded that part-time employment should not be available. We note that while it is not provided for in Victoria it is provided for in several other States. Nevertheless, in the award we have made we have limited the availability of part-time employment to the private sector reserving for further consideration the issue of whether part time employment should also be available in the public sector.’ 68 (emphasis added)
[98] The Victorian Fire Services contend that the Commission, including in any of its predecessor forms, has not considered the merits of including part-time employment in the Fire Fighting Award, or its predecessors. The UFUA disputes this proposition and submits that the appropriateness of part-time employment was considered by Hingley C in the award simplification process.
[99] We accept that in conducting a review of the Victorian Firefighting Industry Employees Interim Award 1993 Hingley C was required to consider the inclusion of provisions enabling the employment of regular part-time employees. Further, it may be inferred from the Commissioner’s decision, and the terms of the VFIE 2000 Award, that the Commissioner decided not to extend part-time employment to the public sector.
[100] As we have mentioned, in conducting the Review the Commission will have regard to the historical context applicable to each modern award, including any previous decisions dealing with a contested issue. The relevance of previous Commission decisions was considered in the Preliminary Jurisdictional Issues Decision:
‘In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.’ 69
[101] The particular context in which a previous decision is made is plainly relevant to the weight to be attached to that decision. In our view very little weight should be attached to the decision of Hingley C.
[102] It is apparent from a review of the award simplification proceedings before Hingley C that the issue of part-time employment in the public sector was not ultimately in issue in those proceedings and that two of the major parties (the CFA and UFUA) had agreed that no variation to the award was needed in this regard. The consent position adopted by the CFA and UFUA is particularly significant given the nature of the award which was the subject of the award simplification proceedings.
[103] In times past, awards – such as the Victorian Fire Fighting Industry Employees Interim Award 1993 – were made in settlement of industrial disputes and the respondent parties to such awards were the parties to the relevant industrial dispute. The nature of modern awards under the Act is quite different from awards under previous legislative regimes 70 and they perform a very different function to that performed by awards of the past.
[104] Modern awards are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the National Employment Standards and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss 3(b) and 43(1)). Further, there are no named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for the making of a determination making, varying or revoking a modern award. Under previous legislative regimes the named respondents to a particular award would automatically have the requisite standing to make such applications; that is no longer the case. 71
[105] The shift in the nature and purpose of awards means that the weight to be given to the views of interested parties is, generally speaking, now less than it was previously. This is relevant because it is apparent from the award ultimately made by Hingley C that he must have attached substantial weight to the consent position put by the CFA and UFUA, given that he adopted the consent position put and that the Commissioner’s decision and the transcript of the proceedings do not reveal any other basis for the retention of the prohibition on part-time employment in the public sector fire services. The significance accorded to the views of major parties is a relevant contextual consideration when determining the weight to be attached to the Commissioner’s decision.
[106] The subsequent observations of the Award Modernisation Full Bench are also relevant. The relevant passages from the Full Bench’s decision are set out (at [96]–[97]) and the short points to be drawn from these passages are:
(i) the Full Bench did not regard Hingley C’s decision as constraining it from considering for itself whether part-time employment was appropriate in the fire fighting industry;
(ii) the Full Bench was ‘far from persuaded that part-time employment should not be available’; and
(iii) while the award made limited the availability of part-time employment to the private sector, the Full Bench clearly reserved the issue of whether part-time employment should also be available in the public sector ‘for further consideration’.
[107] The UFUA contends that the observations of the Award Modernisation Full Bench ‘do nothing to undermine the prima facie position that the Modern Award being reviewed achieved the Modern Award’s objectives at the time it was made’. 72 The UFUA submits that:
‘… in the 2009 Modern Award review proceedings, the Full Bench … considered that part time employment was not then appropriate for the public sector – yet took a different approach to the private sector … the Commission could only have arrived at such a bifurcated outcome following detailed considerations, including consideration of the industrial histories.’ 73
[108] We do not find this submission persuasive – it ignores the clear statement by the Full Bench that it was ‘far from persuaded’ that part-time work should not be available and the fact that it expressly reserved this issue ‘for further consideration’.
[109] There is one further aspect of the historical context that is said to be relevant to our consideration of this issue.
[110] As noted in paragraph [75], part-time work for operational firefighters is not permitted by the CFA and MFB Agreements. In particular, in 2010, the MFB and CFA each agreed that ‘for reasons including the welfare and safety of employees covered by this agreement’ the Victorian Fire Services would not employ part-time or casual firefighters. 74
[111] The UFUA contends that the CFA and MFB Agreements cannot be excluded from the relevant historical context as the position adopted by the parties evidences the historical practice:
‘In the present case, it is manifest that the industrial parties have, on a number of occasions, turned their minds to the matter and actively determined against such proscription in the public sector … by entering into the current Enterprise Agreements governing the industry. In these instances, the language chosen (e.g. in clause 29 of the CFA Agreement and clause 37 of the MFB Agreement) was that of prohibition of part-time employment (something that the Applicants acknowledge is unique to this industry).’ 75
[112] In support of its contention that the terms of the CFA and MFB Agreements cannot be ignored the UFUA relies on Equuscorp Pty Ltd and Anor v Glengallan Investments Pty Ltd, 76 NT Power Generation Pty Ltd v Power & Water Authority77and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd.78
[113] For our part we acknowledge that the CFA and MFB Agreements form part of the historical context, but we attach little weight to the position taken by the Victorian Fire Services in the context of enterprise bargaining. We agree with the following observation by the Full Bench in the June 2015 4 yearly review of modern awards – Annual leave decision: 79
‘… we are conscious of the need to exercise care when assessing the provisions in enterprise agreements in the context of a review of modern awards. Enterprise agreements are negotiated by the parties and approved by the Commission against various statutory criteria. The legislative context relevant to the review of modern awards is quite different.’
[114] Nor do the authorities relied on by the UFUA advance their position. It may be readily accepted that parties are bound by their agreements (Equuscorp) and that the law attaches significance to the execution of contractual documents (Toll). But what is important here is the fact that the CFA and MFB Agreements are the product of enterprise bargaining – they do not have the same status as previous Commission decisions dealing with the relevant subject matter.
[115] To the extent that the UFUA contends that the CFA and MFB Agreements constitute admissions (relying on NT Power Generation) and that ‘it was critical for the Fire Services to explain why they have resiled from their positions, because the Commission’s jurisdiction under s.156 is necessarily focussed on changed circumstances’, 80 we reject that submission. We have already dealt with (and rejected) the suggestion that ‘changed circumstances’ must be shown before the Fire Fighting Award may be varied, further, these are not inter parties proceedings and hence any previous ‘admissions’ or statements by a party are of little moment. The issue for us is whether it is necessary to vary the Fire Fighting Award to permit part-time employment in public sector fire services. The determination of that issue turns, ultimately, on the evidence and material before us and the position taken by the CFA and MFB in the context of enterprise bargaining is of little relevance.
[116] To summarise, in our view, and contrary to the UFUA’s submission, the Commission has not previously given detailed consideration to the issue of part-time employment in public sector fire services and, further, the Award Modernisation Full Bench specifically reserved this issue ‘for further consideration’. We attach little weight to the position taken by the Victorian Fire Services in the context of enterprise bargaining.
[117] The historical context and the level of consideration given by the Commission to the issue under consideration is a matter that can be taken into account in the present proceeding for the purpose of considering the prima facie position that the Fire Fighting Award meets the modern awards objective. The UFUA did not contend to the contrary. 81 In our view the historical context operates to weaken the prima facie position and invites consideration of whether it is necessary to vary the Fire Fighting Award to permit part-time employment in the public sector. We reject the UFUA’s contention82 that our consideration of this issue should commence from the position that part-time employment in the public sector is not appropriate.
[118] It is clear that in the Award Modernisation decision the Full Bench was ‘far from persuaded’ that part-time employment should not be available to public sector fire services and it reserved that issue for future consideration. The time for such consideration is now.
5. Consideration
[119] As mentioned earlier, the Victorian Fire Services are seeking to vary the Fire Fighting Award to remove the existing prohibition against part-time employment in the public sector and to make some consequential changes to rostering arrangements.
[120] The variations sought are plainly terms which may be included in a modern award. Section 139(1) provides, relevantly:
‘A modern award may include terms about any of the following matters:…
(b) types of employments, such as…regular part-time employment…
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;…’
[121] Section 138 provides that a modern award may include terms that it is permitted to include ‘only to the extent necessary to achieve the modern awards objective’.
[122] The Victorian Fire Services contend that the capacity to offer part-time employment (with consequential changes to rostering arrangements) is essential to ensure that the Fire Fighting Award provides a ‘fair and relevant minimum safety net of terms and conditions’.
[123] The Victorian Fire Services called 12 witnesses in support of their proposed variation to the Fire Fighting Award:
● Lucinda Nolan, Chief Executive Officer, CFA.83
● Joseph Buffone, Chief Officer, CFA.84
● Peter Rau, Chief Officer, MFB.85
● Michael Werle, Director, Human Resources, MFB.86
● Kirstie Schroder, Director, Operational Learning and Development, MFB.87
● Kate Harrap, Acting Executive Director Learning and Volunteerism, CFA.88
● Alex Tasominos, Acting Director, Workplace Relations, Victoria Police.89
● Gregory Leach, Deputy Chief Officer, MFB.90
● Steve Warrington, Deputy Chief Officer, CFA.91
● Bruce Byatt, Deputy Chief Officer – Readiness and Response, CFA.92
● David Youssef, Deputy Chief Officer and Regional Director, North West Metro Region, MFB.93
● Malcolm Connellan, Chief Superintendent of Fire & Rescue NSW, Chief of Staff for the Commissioner of Fire & Rescue NSW. Since April 2015 has acted as the Director Human Resources for FRNSW.94
[124] It is contended that the above evidence demonstrates the following propositions.
(i) Clause 10 of the Award does not promote flexible modern work practices or the efficient and productive performance of work, contrary to s.134(1)(d).
(ii) The proposed variation is likely to promote social inclusion through increased workforce participation, particularly of women.
(iii) There is support at very high levels of the emergency services sector for the introduction of part-time work to the Award safety net.
(iv) The capacity to offer part-time work is an essential element of contemporary (i.e. relevant) minimum employment standards in the community at large, and in the emergency services sector.
[125] As we have mentioned, the Commission’s primary task in the Review is to determine whether the modern award in question achieves the modern awards objective. The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the s.134(1)(a) to (h) considerations.
[126] Given the way in which the case was put by the Victorian Fire Services it is convenient to begin with a consideration of the potential impact of the proposed variations on employment diversity within the Victorian Fire Services and workforce performance generally.
[127] There is an evident lack of gender and age diversity within the Victorian Fire Services. As observed in the October 2015 Report of the Victorian Fire Services Review (the Fire Services Review Report):
‘Both CFA and MFB remain dominated by Anglo-Saxon men of a certain age…the numbers of operational women in Victoria’s fire services are particularly low and both organisations lag behind the State’s other emergency services in terms of women’s participation…There are no women in uniformed command roles and only a handful in executive leadership positions.’ 95
[128] The profile of the MFB’s workforce is set out in Mr Werle’s evidence. 96 The MFB’s workforce is overwhelmingly male and over 45 years of age. Only 70 (or 3.46 per cent) of the MFB’s 1944 operational employees are women. Almost 58 per cent of operational employees are over 45.
[129] The profile of the CFA’s workforce is similar. It employs 879 career firefighters of whom 29 (or 3.3 per cent) are women and about two thirds are over 35 years of age. 97 The lack of flexible work options has been identified as a barrier to diversity across the CFA.98
[130] Flexible employment arrangements – including the availability of part-time work – are an important element in creating a diverse workplace. As Ms Thomas – Acting Executive Direction People Culture, CFA, put it:
‘Based on my experience working in human resources for over 20 years, my assessment is that the ability to work part-time is important in a modern workplace because it promotes diversity in the workforce by allowing persons with particular needs (for example, those with parent/caring responsibilities, nearing retirement age or who are returning to work after injury) the ability to access more flexible working arrangements. These reasons supporting the availability of part time work apply as much to the CFA as any other modern-day employer.’ 99
[131] The growing availability of part-time and flexible employment in Australia is associated with an increase in female labour force participation over the 2000s. 100 Similar associations emerge in the international literature.101
[132] The introduction of part-time employment in Victoria Police has also been associated with an increase in female operational employees. In 2000, Victoria Police employed 9,594 operational employees of whom 1,409 (or 14.69 per cent) were women. At that time there were 243 part-time employees. The incidence of part-time employment has grown steadily since, as has the number and proportion of female operational employees. As at 1 January 2016, Victoria Police employed 14,824 operational employees of whom 3,754 (33.91 per cent) were women, and 910 worked part-time. 102
[133] A number of the witnesses called by the Victorian Fire Services highlighted the benefits of providing access to more flexible working arrangements. Such arrangements could provide a more flexible transition to retirement; assist in caring responsibilities and facilitate a better ‘work/life balance’. As Ms Schroder put it:
‘As things currently stand in the MFB, there are a large number of firefighters who are close to retirement age due to major recruitment activity in the 1980s.
The ability to offer a more flexible transition to leaving the service might be very attractive to employees reaching retirement. It could also be beneficial to the organisation because the MFB would be better able to manage workforce planning and the loss of such extensive knowledge and skills would be more gradual, therefore lessening the potential impact on the organisation and our service to the community.
Other employees who may benefit from more flexible work options would be employees with small children, parents wishing to return from a period of parental leave, single parents and employees with responsibilities for the care of elderly parents.
Additionally of course it could also be attractive to firefighters who just wanted to achieve a better work/life balance.’ 103
[134] Similar observations were made by Mr Werle. 104
[135] Ms Schroder’s observations as to the potential benefits of providing more flexible working arrangements are consistent with the actual experience of organisations which have introduced such arrangements. In the course of his evidence Mr Leach dealt with the introduction of part-time work within Ambulance Victoria, noting that:
‘While the majority of employees engaged on a part-time basis were women returning to work after a period of parental leave, part time arrangements were also utilised by employees who had ill family members or other personal circumstances and employees transitioning into retirement.’ 105
[136] We accept that the variation of the Fire Fighting Award to permit part-time employment and more flexible rostering arrangements is likely to facilitate increased female workforce participation and hence promote gender diversity.
[137] Further, we accept the general proposition that workforce diversity has a positive impact on performance. As observed in the Fire Services Review Report:
‘There is overwhelming evidence of the significant and positive contributions brought to an organisation by a diverse workforce’ 106
[138] Similarly, as Mr Lapsley put it, on the basis of his experience in emergency management:
‘Flexibility, whether it is reflected in work hours, location or other arrangements, makes organisations more sustainable and able to adapt to change. Importantly, it also enables organisations to attract and retain talent and build capability and a workforce that is able to work smarter and be more effective. It is critical to maximising productivity and building a high performance work culture.’ 107
[139] We also accept that the introduction of flexible working arrangements – including the availability of part-time work and more flexible rostering arrangements – is likely to assist in the retention of trained operational firefighters, with a consequent saving in employment costs. As Mr Buffone – Chief Office of the CFA – put it:
‘It costs the CFA about $120,000 to train a recruit firefighter. Recruits attend a 19 week course, and are then allocated to a platoon and a station. With each year of service, the value of that employee to the CFA increases. It is in the CFA’s interest to retain as many employees as possible and the availability of part-time work would further that objective by providing a means for those who might otherwise cease employment with the CFA to continue in employment. For example, part-time work could be a valuable option for employees returning to work from injury, those struggling with mental health issues and those with family/carer responsibilities, all of whom may wish to continue working in an operational capacity but are unable to work full-time. Part-time arrangements may also benefit employees transitioning to retirement who may want to gradually reduce their hours of work over a period of time.’ 108
[140] Returning to the s.134 considerations, we are satisfied that varying the Fire Fighting Award to permit part-time employment in the public sector (with other consequential changes) will:
- promote social inclusion through increased workforce participation, (particularly by women) (s.134(1)(b));
- promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d)); and
- reduce employment costs (s.134(1)(f))
[141] Other than s.134(1)(b) – ‘the need to encourage collective bargaining’ – the remaining s.134 considerations are not relevant to the determination of the matter before us. We now turn to s.134(1)(b).
[142] At present, the Fire Fighting Award does not permit part-time employment in the public sector. The relevant enterprise agreements permit part-time work, with the agreement of the UFUA. It seems to us that varying the Fire Fighting Award to permit part-time employment (with some consequential changes to rostering provisions to facilitate such employment) will encourage collective bargaining in respect of this issue. The current award terms provide little incentive for the UFUA to bargain in respect of this issue – it can simply rely on what is effectively an award prohibition on part-time employment in the public sector. Accordingly, we are satisfied that varying the Fire Fighting Award in the manner described will ‘encourage collective bargaining’, within the meaning of s.134(1)(b).
[143] It is also convenient to note here that, as mentioned previously, s.578(a) requires that we take into account the objects of the Act. Section 3(d) is particularly relevant in this context:
‘3. Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:…
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements’
[144] The variation of the Fire Fighting Award to permit part-time employment in the public sector fire services (with some consequential changes to rostering provisions to facilitate such employment) would assist employees to balance their work and family responsibilities. Such a variation would be consistent with the objects of the Act.
[145] While the Commission must take into account the s.134 considerations, the relevant question is whether the modern award, together with the NES, provides ‘a fair and relevant minimum safety net of terms and conditions’. Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question and the descriptor ‘relevant’ is intended to convey that a modern award should be suited to contemporary circumstances.
[146] The UFUA submits that the variations sought are not necessary to achieve the modern awards objective. In the alternative, the UFUA submits that a more limited variation should be made, consistent with the draft determination set out at Attachment 1. The UFUA called 13 witnesses in support of its position:
Craig and Roeters conduct a cross national comparison of the outcomes of part-time work for women, and how this depends on the regulatory or policy framework of part-time work in a country. They use data from the International Social Survey Programme (ISSP) “Family and changing gender roles” (2013) survey. The two outcomes of part-time work they study are resolving the work-life conflict and job satisfaction. They found that “the impact of part time work on quality of life is only marginally contingent on the country context”. Overall they conclude “we found few cross national differences in the effects of part time work”.
Euwals, R. and Hogerbrugge, M. (2006), ‘Explaining the Growth of Part-time Employment: Factors of Supply and Demand’, Labour, 20: 533–557.
At the time of this research, Denmark was the country with the highest part-time employment rate of the OECD countries. Using the Dutch Labour Force Survey 1991–2001, the analysis revealed that women fulfil most part-time jobs, and that the growth of part-time employment in the 1990s relates strongly to the growth in female labour force participation. Factors of labour demand, such as the shift from manufacturing to services and the increase in the demand for flexible labour, bear a significant role as well.
M�nderlein, M, Koster, F and Wielers, R (2013), ‘Part-Time Work and Work Hour Preferences. An International Comparison’, European Sociology Review (2014) 30 (1): 76-89 first published online August 20, 2013.
This paper attempts to explain cross-country differences in over and under employment, focusing on the effects of the growth of part-time work. It found that the increase of part-time work among women with children increases its acceptance among women and men.
The authors’ thesis is that the spread of part-time work affects the full-time work hour norm. With the spread of part-time work, full-time workers show stronger preferences to reduce their working hours. They confirm this hypothesis empirically using data from the European Social Survey (2004) covering 22 Europe.
1 Currently clause 22.4(b) in the modern award. The adjustment to the clause numbers arises because of the proposed insertion of the new clause 22.4 in the modern award, eg, the current clause 22.4 (10/14 roster system) would become clause 22.5, and the sub-clauses 22.5 to 22.8 would each advance by one (eg, 22.5 becomes 22.6 et seq).
2 Currently clause 22.7(b) and (e).
3 MFB/CFA submissions 26 February 2016 at paragraph 37.
4 [2014] FWCFB 1788.
5 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [85]. Although the Court’s observations were directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) they are apposite to s.156(5).
6 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [118]. While the Full Federal Court was considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5) of the Fair Work Act, which is in substantially the same terms. (2014 225 FCR 154 at [86].
7 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]-[140].
8 See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.
9 Friends of Hinchinbrook Society Inc v Minister for Environment and Others(No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice and Others (1999) FCR 561; National Retail Association v Fair Work Commission (2014) 225 FCR 154.
10 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [110].
11 Ibid at [110] albeit the Court was considering a different statutory context, the observation at [110] is applicable to the Commission’s task in the Review.
12 Also see Shop Distributive and Allied Employees Association v $2 and Under (2003) 135 IR 1 at [11] and [124].
13 Fair Work Bill 2008, Explanatory Memorandum at paragraph 527.
14 See generally, : Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.
15 UFUA Final Outline of Submissions 7 June 2016 at paragraph 14.
16 See Transcript 17 June 2016, PN4977 and following.
17 See Modern Awards Review 2012 [2012] FWAFB 5600 at [82]–[85].
18 Nguyen v Nguyen (1990) 169 CLR 245 at 269. Also see The Queen v Moore; ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600.
19 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
20 (2003) 127 IR 205 at [48].
21 Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
22 4 Yearly Review of Modern Awards – Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [23]-[27].
23 ABS, Labour Force, Australia, Mar 2016, Catalogue No. 6202.0.
24 OECD, Labour Market Statistics: Full-time part-time employment, OECD Employment and Labour Market Statistics (database), 2014.
25 Abhayaratna, J. Andrews, L. Nuch, H. and Podbury, T. (2008), ‘Part Time Employment: the Australian Experience’, Staff Working Paper, Productivity Commission, June 2008; Wooden, M. and Drago, R. (2007), ‘The Changing Distribution of Working Hours in Australia’, Melbourne Institute Working Paper Series No. 19/07, Melbourne Institute of Applied Economic and Social Research, July 2007.
26 Ibid.
27 Abhayaratna, J. Andrews, L. Nuch, H. and Podbury, T. (2008), ‘Part Time Employment: the Australian Experience’, Staff Working Paper, Productivity Commission, June 2008, page xvii.
28 Wilkins, R. and Wooden, M. (2014), ‘Two decades of change: the Australian labour market, 1993-2013’, The Australian Economic Review, vol. 47(4): 417–31; Wooden, M. and Drago, R. (2007), ‘The Changing Distribution of Working Hours in Australia’, Melbourne Institute Working Paper Series No. 19/07, Melbourne Institute of Applied Economic and Social Research, July 2007; Workplace and Economic Research Section, Fair Work Commission (2016), ‘Changing work patterns’, Fair Work Commission.
29 Healy, J.‘The Australian labour market in 2013?’ (2014) Journal of Industrial Relations, Vol. 56: 345.
30 Borland, J. (2011), ‘The Australian labour market in the 2000s: The quiet decade’, Reserve Bank of Australia Conference 2011.
31 Baird, M and Charlesworth, S (2010), ‘Flexible and Part-Time Work in Australia: Some responses to the need for work life balance’, Egalite homes/femmes et articulation travail/famille:vers un nouveau modele? Conference, Paris, 30 September - 1 October 2010.
32 Kajitani, S, McKenzie, C and Sakata, K. ‘Use It Too Much and Lose It? The Effect of Working Hours on Cognitive Ability’, Melbourne Institute Working Paper No. 7/16, Melbourne Institute of Applied Economic & Social Research, February 2016.
33 MacDonald, D, Orr, R and Pope, R (2016), ‘Differences in physical characteristics and performance measures of part-time and full-time tactical personnel: A critical narrative review’, Journal of Military and Veterans’ Health.
34 Ibid, Table 2, 49.
35 Ibid, Table 2, summary of findings from Lindberg, Oksa and Malm (2014).
36 Ibid, Table 2, summary of findings from Wynn and Hawdon (2011).
37 Ibid, page 53.
38 UFUA Submissions in reply, 7 June 2016 at paragraph 70.
39 O’Connor, P, Ross, VP, Marsh, SDP, McDonald, C and Holmes, C, Family Leave Test Case, (29 November 1994) 57 IR 121, Print L6900.
40 AIRC (1995), Australian Liquor, Hospitality and Miscellaneous Workers Union & Others Personal/Carer’s Leave Test Case – Stage 2 (28 November 1995) 62 IR 48, Print M6700.
41 Ibid at p. 40.
42 Ibid at p. 42
43 Ibid at p. 41.
44 See Annexure A.
45 Fair Work Act2009 (Cth) s.133; Fire Fighting Industry Award 2010 clauses 4.1 and 4.2.
46 These categories of ‘national system employers’ reflect the legislative powers of the Commonwealth – Commonwealth of Australia Constitution Act, sections 51(xx), 51(i), 122.
47 Fair Work Act2009 (Cth) sections 30H and 30S.
48 Fair Work Act2009 (Cth) sections 13, 30C and 30M.
49 Fair Work (Commonwealth Powers) Act 2009 (Vic), sections 4 and 5.
50 See United Firefighters’ Union of Australia and Others v Metropolitan Fire and Emergency Services Board
[1998] FCA 551; United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1.
51 Fire Fighting Industry Award 2010, clauses 4.3 – 4.5.
52 In respect of the ACTFR and the NTFRS the Fire Fighting Industry Award 2010 covers these entities by virtue of section 122 of the Constitution.
53 See section 7 MFB Act.
54 Section 20 CFA Act.
55 MFB Agreement, cl 37.2; CFA Agreement, cl 29.2, 30.1.
56 MFB Agreement, cl 13; CFA Agreement, cl 13.
57 AIRC, Award Simplification Decision (1997) 75 IR 272 page 298.
58 Re Victorian Firefighting Industry Employees Interim Award 1993 [1998] AIRC 843 (22 June 1998) Print Q2214.
59 Re Victorian Firefighting Industry Employees Interim Award 1993 [200] AIRC 957 (1 March 2000) Print S3127.
60 Country Fire Authority, Submission, 25 March 1999, at paragraph 31.
61 Country Fire Authority and United Firefighters’ Union of Australia, Joint submission, 24 November 1999 at p. 2 (unsigned). See Transcript CN37547 of 1997; CN00164 of 1998 and CN00819 of 1998, 1 December 1999 p. 1011 at [20].
62 Country Fire Authority and United Firefighters’ Union of Australia, Further joint submission, 1 December 1999, at paragraph 8. See Transcript, ibid, p. 1019 at [5].
63 Transcript 1 December 1999, ibid, p. 1013 at [5].
64 Re Victorian Firefighting Industry Employees Interim Award 1993 [200] AIRC 957 (1 March 2000) Print S3127.
65 AP801881CRV – Victorian Firefighting Industry Employees Interim Award 2000, cl. 13, cl. 14.
66 [2009] AIRCFB 945 at paragraph [49].
67 AIRC, Award modernisation – Stage 4 Awards [2009]AIRCFB 945, at paragraph 49.
68 [2009] AIRCFB 945 at paragraph [51].
69 [2014] FWCFB 1788 at paragraph [27].
70 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18].
71 The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556.
72 UFUA’s Final Outline of Submissions dated 7 June 2016 at paragraph [29].
73 UFUA’s answers to questions on notice of 16 June 2016, dated 24 June 2016 at paragraph [41].
74 The parties also agreed to utilise the rostering systems under the agreement for the same reasons: clause 37 of the MFB Agreement [2010] FWAA 7414, clause 29 of the CFA Agreement [2010] FWAA 8164.
75 UFUA’s Final Outline of Submissions 7 June 2016, paragraph 27(a) and (d).
76 (2004) 218 CLR 471 at [33].
77 (2004) 219 CLR 90 at [52]-[55].
78 (2004) 219 CLR 165 at [42]-[48].
79 [2015] FWCFB 3406 at [252].
80 UFUA’s Final Outline of Submission, 7 June 2016 at paragraph 14.
81 See UFUA’s answers to the questions on notice of 16 June 2016, dated 24 June 2016 at paragraph 42.
82 UFUA’s answers to questions on notice of 16 June 2016, dated 24 June 2016 at paragraph [43].
83 Exhibit MFB/CFA 3, Transcript 19 April 2016, PN 252.
84 Exhibit MFB/CFA 5, Transcript 19 April 2016, PN437
85 Exhibit MFB/CFA 7, Transcript 19 April 2016, PN592
86 Exhibit MFB/CFA 9, Transcript 19 April 2016, PN684
87 Exhibit MFB/CFA 10, transcript 19 April 2016, PN745
88 Exhibit MFB/CFA 11, transcript 19 April 2016, PN881.
89 Exhibit MFB/CFA 12, transcript 19 April 2016, PN952.
90 Exhibit MFB/CFA 14, transcript 20 April 2016, PN1084.
91 Exhibit MFB/CFA 16, transcript 20 April 2016, PN1278.
92 Exhibit MFB/CFA 17, transcript 20 April 2016, PN1357.
93 Exhibit MFB/CFA 19, transcript 20 April 2016, PN1440.
94 Exhibit MFB/CFA 25, transcript 28 April 2016, PN3940.
95 Exhibit MFB/CFA 13at p. 31.
96 Exhibit MFB/CFA 9 at paragraph 15.
97 Exhibit MFB/CFA 2 at paragraph 17.
98 Exhibit MFB/CFA 3 at paragraph 30.
99 Exhibit MFB/CFA 2 at paragraph 10.
100 Breunig R, A Weiss, C Yamauchi, X Gong and J Mercante (2011) ‘Child Care Availability, Quality and Affordability: Are Local Problems Related to Labour Supply?, Economic Record 87 (276) pp. 109–124 cited in Borland (2011) op cit at p. 178.
101 For example see Euwals, R. and Hogerbrugge, M. (2006), ‘Explaining the Growth of Part-time Employment: Factors of Supply and Demand’, Labour, 20: 533–557.
102 Exhibit MFB/CFA 12 at paragraphs 27, 30.
103 Exhibit MFB/CFA 10 at paragraphs 21–24.
104 Exhibit MFB/CFA 9 at paragraphs 11–12.
105 Exhibit MFB/CFA 14 at paragraph 28.
106 Exhibit MFB/CFA 13 at p. 31 citing McKinsey “Company Inc (2007), Women Matter: Gender Diversity, a corporate performance driver’.
107 Exhibit MFB/CFA 1 at paragraph 20.
108 Exhibit MFB/CFA 5 at paragraph 17.
109 Exhibit UFU 2, transcript 20 April 2016, PN1532.
110 Exhibit UFU 3, transcript 20 April 2016, PN1724.
111 Exhibit UFU 4, transcript 20 April 2016, PN1967.
112 Exhibit UFU 5, transcript 20 April 2016, PN2177.
113 Exhibit UFU 6, transcript 21 April 2016, PN2449.
114 Exhibit UFU 7, transcript 21 April 2016, PN3010.
115 Exhibit UFU 8, transcript 21 April 2016, PN3149.
116 Exhibit UFU 9, transcript 21 April 2016, PN3285.
117 Exhibit UFU 10, transcript 21 April 2016. PN3446.
118 Exhibit UFU 11, transcript 21 April 2016, PN3606.
119 Exhibit UFU 12, transcript 21 April 2016, PN3756.
120 Exhibit UFU 14, transcript 28 April 2016, PN4239.
121 Exhibit UFU 15, transcript 28 April 2016, PN4412.
122 UFUA Finding of Fact Sought at paragraph 55.
123 Transcript, 21 April 2016, PN2738-2742.
124 Common Exhibit 1.
125 ROGS 2016, Figure 10.9, p. D.24.
126 ROGS 2016, Table D.3, p. D.25 – D.26.
127 See ROGS 2016, Table 9A.10.
128 ROGS 2016 Table 9A.29 2005-06 to 2014-15. Only the ACT and NT had a higher level of expenditure and only in a limited number of years.
129 ROGS 2016, Box 9.8, p 9.22.
130 Cory Woodyatt, Exhibit UFU 8 at paragraph 6; Patrick Geary, Exhibit UFU 9 at paragraphs 9, 11, 12, 14, 18, 21; Malcolm Hayes, Exhibit UFU 2 at paragraphs 11, 14, 17, 24; Gerald Conroy, Exhibit UFU 10 at paragraphs 11–12; John Radford, Exhibit UFU 12 at paragraphs 15–17; Michael Lia, Exhibit UFU 4 at paragraph 18; and Barry Thomas, Exhibit UFU 15 at Attachment DK-1 and paragraphs 16 and 20–23.
131 Kirstie Schroder, Transcript 19 April 2016 at PN795, Exhibit MFB/CFA 10 at paragraph 31; Leach, Transcript 20 April 2016 at PN1209–1211; Each of the UFUA witnesses made this point. See, for example: Ken Brown Exhibit UFU 6 at paragraphs 8–9 and 31; Daniel Gatt Exhibit UFU 5 at paragraphs 11– 19 and 34; Alan Quinton Exhibit UFU 3 at paragraphs 14–21 and 31–33; Bradley Quinn Exhibit UFU 7 at paragraphs 27–30; Cory Woodyatt Exhibit UFU 8 at paragraphs 4, 7 and 30; Malcolm Hayes Exhibit UFU 2 at paragraphs 10–18; Archie Conroy Exhibit UFU 10 at paragraphs 19–20; John Radford Exhibit UFU 12 at paragraphs 15–34; Michael Martin, Exhibit UFU 14 at paragraphs 3, 18; Michael Lia, Exhibit UFU 4 at paragraphs 14– 17 and 21; Barry Thomas Exhibit UFU 15, Exhibit BT-1 at paragraphs 20– 39, 49– 58; Buffone, Transcript 19 April 2016 at PN481–PN482; Leach, Transcript 20 April 2016 at PN1209–PN1211; Youssef, Transcript 20 April 2016 at PN1479; Hayes, Transcript 20 April 2016 at PN1559; Geary, Transcript 21 April 2016 at PN3391–PN3396; Martin, Transcript 28 April 2016 at PN4301–PN4311; Thomas, Transcript 28 April 2016 at PN4505 and PN4523.
132 Transcript 21 April 2016 at PN2955.
133 Exhibit MFB/CFA 6 at paragraphs 7–8, 11.
134 Exhibit MFB/CFA 16 at paragraphs 10–26.
135 Exhibit MFB/CFA 18 at paragraphs 7–12.
136 Exhibit MFB/CFA 20 at paragraphs 6–27.
137 Ken Brown, Bradley Quinn, Alan Quinton and Tony Martin.
138 Gerald Conroy, Barry Thomas, Patrick Geary and John Radford.
139 See for example, evidence under cross-examination of Alan Quinton, Transcript 20 April 2016 at PN1862–66; Daniel Gatt, Transcript 20 April 2016 at PN2212; Bradley Quinn, Transcript 21 April 2016 at PN3111–15; Tony Martin, Transcript 28 April 2016 at PN4292–300; Barry Thomas, Transcript 28 April 2016 at PN4540.
140 Note that while Ken Brown accepted under cross-examination that firefighters can work alongside people from other stations or sectors, he refused to accept that it was a regular occurrence and that they would not know those people: Transcript, 21 April at PN2578–PN2580. However, other witnesses accepted the proposition. See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN1611; Bradley Quinn, Transcript 21 April 2016 at PN3056–58.
141 See evidence under cross-examination of Ken Brown, Transcript 21 April 2016 at PN2582; Glenn Veal, Transcript 21 April 2016 at PN3675.
142 See evidence under cross-examination of Malcolm Hayes, Transcript 21 April 2016 at PN1620; Michael Lia, Transcript 20 April 2016 at PN2112–15; Ken Brown, Transcript 21 April 2016 at PN2637–PN2654; Cory Woodyatt, Transcript 21 April 2016 at PN3217–35, PN3241–46; Patrick Geary, Transcript 21 April 2016 at PN3292–98; Glenn Veal, Transcript 21 April 2016 at PN3676–87; John Radford, Transcript 21 April 2016 at PN3817; Barry Thomas, Transcript 28 April 2016 at PN4564.
143 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN1625–27; Michael Lia, Transcript 20 April 2016 at PN2116–17; Daniel Gatt, Transcript 20 April 2016 at PN2291–98; Cory Woodyatt, Transcript 21 April 2016 at PN3239–40; Patrick Geary, Transcript 21 April 2016 at PN3378–79; Glenn Veal, Transcript 21 April 2016 at PN3688–91; Barry Thomas, Transcript 28 April 2016 at PN4565.
144 See evidence under cross-examination of Daniel Gatt, Transcript 20 April 2016 at PN2299–2305; Ken Brown, Transcript 21 April 2016 at PN2655–62, PN2663–84; Glenn Veal, Transcript 21 April 2016 at PN3692–94.
145 See evidence under cross-examination of Daniel Gatt, Transcript 20 April 2016 at PN 2328–37; Glenn Veal, Transcript 21 April 2016 at PN 3694–96.
146 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 PN 1644–52; Cory Woodyatt, Transcript 21 April 2016 at PN 3215–16; Patrick Geary, Transcript 21 April 2016 at PN 3383; John Radford, Transcript 21 April 2016 at PN 3835–52; Barry Thomas, Transcript 28 April 2016 at PN 4569.
147 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 PN1666.
148 See evidence under cross-examination Patrick Geary, Transcript 21 April 2016 at PN 3373; Glenn Veal, Transcript 21 April 2016 at PN 3703–06; John Radford, Transcript 21 April 2016 at PN 3826–27; Barry Thomas, Transcript 28 April 2016 at PN 4567.
149 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1636–38; Michael Lia, Transcript 20 April 2016 at PN 2118–20; Daniel Gatt, Transcript 20 April 2016 at PN 2311–17; Ken Brown, Transcript 21 April 2016 at PN 2693, 2713, 2911–18; Cory Woodyatt, Transcript 21 April 2016 at PN 3247–49; Patrick Geary, Transcript 21 April 2016 at PN 3371–72; Glenn Veal, Transcript 21 April 2016 at PN 3701–02; Barry Thomas, Transcript 28 April 2016 at PN 4567.
150 Transcript 21 April 2016 at PN 2916–18; and see John Radford, Transcript 21 April 2016 at PN 3823–25.
151 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 PN 1630–31, 1634–35
152 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1640–43; Alan Quinton, Transcript 2 April 2016 at PN 1819–33; Michael Lia, Transcript 20 April 2016 at PN 1982–96; Daniel Gatt, Transcript 20 April 2016 at PN 2320–22; Ken Brown, Transcript 21 April 2016 at PN 2722–2724, 2729; Bradley Quinn, Transcript 21 April 2016 at PN 3074–80; Cory Woodyatt, Transcript 21 April 2016 at PN 3256–63; Patrick Geary, Transcript 21 April 2016 at PN 3383, 3387–90; Glenn Veal, Transcript 21 April 2016 at PN 3709–12; John Radford, Transcript 21 April 2016 at PN 3854–68; Barry Thomas, Transcript 28 April 2016 at PN 4590–98.
153 See, for example: evidence under cross-examination of John Radford, Transcript 21 April 2016 at PN 3867–68; Barry Thomas, Transcript 28 April 2016 at PN 4597–98.
154 See Statement of Kirstie Schroeder, Exhibit MFB/CFA 10 a paragraphs 1–18; Statement of Kate Harrap, Exhibit MFB/CFA 11 at paragraph 15.
155 See Reply Statement of Gregory Leach, Exhibit MFB/CFA 15 at paragraphs 8–9; Reply Statement of Steve Warrington, Exhibit MFB/CFA 16, 29–32.
156 See Fire Fighting Industry Award 2010 cl 22.6(a); MFB Operational Agreement cl 83; CFA Operational Agreement cl 84.
157 MFB Agreement, cl 87.1.
158 For example, see: Ken Brown, Exhibit UFU 6 at paragraphs 9, 15-17; Daniel Gatt, Exhibit UFU 5 at paragraphs 11, 15 – 18; Alan Quinton, Exhibit UFU 3 at paragraphs 18, 23-27; Bradley Quinn, Exhibit UFU 7 at paragraph 25; Glenn Veal, Exhibit UFU 11 at paragraphs 14 -17; Cory Woodyatt, Exhibit UFU 8 at paragraphs 3-4, 9-12; Patrick Geary, Exhibit UFU 9 at paragraphs 9, 11, 12, 14, 17, 18 and 21; Malcolm Hayes, Exhibit UFU 2 at paragraphs 9, 15-17, 20-21; Gerald Conroy, Exhibit UFU 10 at paragraphs 7, 9, 11-12; John Radford, Exhibit UFU 12 at paragraphs 25-31, 37-41; Michael Lia, Exhibit UFU 4 at paragraphs 11-14 and 17; and Barry Thomas, Exhibit UFU 15 at paragraphs 24-28, 35-36.
159 Exhibit MFB/CFA 15 at paragraphs 10-11.
160 Exhibit MFB/CFA 18 at paragraphs 16-19.
161 Exhibit MFB/CFA 16 at paragraphs 29-34.
162 MFB Agreement cl 58; CFA Agreement cl 54.
163 See Gregory Leach, Transcript 20 April 2016 at PN1261.
164 MFB Agreement cl 67; CFA Agreement cl 64.
165 MFB Agreement cl 61; CFA Agreement cl 58.
166 MFB Agreement cl 63; CFA Agreement cl 60.
167 MFB Agreement cll 53, 66; CFA Agreement cll 47.2, 51.1.
168 Ken Brown, Transcript 21 April 2016 at PN2528.
169 Report of the Victorian Auditor-General, Management of Unplanned Leave in Emergency Services, March 2013, 21, 24.
170 Ibid, 24 (Figure 3C).
171 Further Statement of Greg Leach, Exhibit MFB/CFA 23 at paragraph 10; Further Statement of Bruce Byatt, Exhibit MFB/CFA 24 at paragraph 10.
172 See the evidence under cross-examination of Alan Quinton, Transcript 20 April 2016 at PN 1814, 1871–72; Michael Lia, Transcript 20 April 2016 at PN 2003–06; John Radford, Transcript 21 April 2016 at PN 3790–94; and Tony Martin, Transcript 28 April 2016 at PN 4301.
173 See the evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1668–71; Daniel Gatt, Transcript 20 April 2016 at PN 2224–25; Ken Brown, Transcript 21 April 2016 at PN 2943; Bradley Quinn, Transcript 21 April 2016 at PN 3083; Cory Woodyatt, Transcript 21 April 2016 at PN 3238; Patrick Geary, Transcript 21 April 2016 at PN 3395; and Glenn Veal, Transcript 21 April 2016 at PN 3717. In fairness, it must be noted that some of those witnesses offered their conditional acceptance of the proposition, such as Ken Brown, who stated his opinion that part-time work would not be compatible with the recruit course or with the first three years of employment, but ‘it’s not impossible to look at… you’d want to look at the right rank where to go’. Transcript 21 April 2016 at PN2943, See also Patrick Geary, Transcript 21 April 2016 at PN3395.
174 Reply Statement of Greg Leach, Exhibit MFB/CFA 15 at paragraph 7.
175 Reply Statement of Greg Leach, Exhibit MFB/CFA 15 at paragraph 11.
176 See the evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1560, 1569, 1570, 1605–1608; Alan Quinton, Transcript 20 April 2016 at PN 1792; Michael Lia, Transcript 20 April 2016 at PN 2032; Daniel Gatt, Transcript 20 April 2016 at PN 2254, 2262; Ken Brown, Transcript 21 April 2016 at PN 2517–18; Bradley Quinn, Transcript 21 April 2016 at PN 3030; Patrick Geary, Transcript 21 April 2016 at PN 3354–56; Cory Woodyatt, Transcript 21 April 2016 at PN 3185; Glenn Veal, Transcript 21 April 2016 at PN 3627–28; John Radford, Transcript 21 April 2016 at PN 3811; Tony Martin, Transcript 28 April 2016 at PN 4364–65; and Barry Thomas, Transcript 28 April 2016 at PN 4614.
177 See the evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1603–04; Alan Quinton, Transcript 20 April 2016 at PN 1775; Michael Lia, Transcript 20 April 2016 at PN 2052; Daniel Gatt, Transcript 20 April 2016 at PN 2281; Ken Brown, Transcript 21 April 2016 at PN 2534, 2539, 2558; Bradley Quinn, Transcript 21 April 2016 at PN 3031–33; Glenn Veal, Transcript 21 April 2016 at PN 3633–39; Tony Martin, Transcript 28 April 2016 at PN 4372–75; and Barry Thomas, Transcript 28 April 2016 at PN 4615.
178 Glenn Veal, Transcript 21 April 2016 at PN 3637–39; Tony Martin, Transcript 28 April 2016 at PN 4373–74.
179 Transcript 21 April 2016 at PN 2534; see also PN 2538.
180 Transcript 21 April 2016 at PN3424.
181 Exhibit MFB/CFA 15 at paragraphs 22–26.
182 Exhibit MFB/CFA 16 at paragraphs 35–40.
183 Exhibit MFB/CFA 18 at paragraphs 28–30.
184 Exhibit MFB/CFA 20 at paragraphs 45–48.
185 See evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016, at PN 1547–51; Alan Quinton Transcript 20 April 2016 at PN 1725; Michael Lia, Transcript 20 April 2016 at PN 1968; Corey Woodyatt Transcript 21 April 2016 at PN 3169; Patrick Geary, Transcript 21 April 2016 at PN 3320; and John Radford at PN 3796.
186 Patrick Geary, Transcript 21 April 2016 at PN 3320.
187 Draft Determination, cl 10.3(a)(ii);
188 Draft Determination, cl 10.3(b).
189 See the witness statements of each of the UFU witnesses, and the evidence under cross-examination of Malcolm Hayes, Transcript 20 April 2016 at PN 1540–43; Alan Quinton, Transcript 20 April 2016 at PN 1868; Ken Brown, Transcript 21 April 2016 at PN 2495, PN 2732; Glenn Veal, Transcript 21 April 2016 at PN 3666–71; Tony Martin, Transcript 28 April 2016 at PN 4314–15, 4319; and Barry Thomas, Transcript 28 April 2016 at PN 4519.
190 Eg, Malcolm Connellan, Transcript 28 April 2016 at PN 4208. See also David Youssef, Transcript 20 April 2016 PN 1479.
191 Transcript 21 April 2016 at PN 2735–38.
192 Transcript 21 April 2016 at PN 3659–60.
193 Transcript 28 April 2016 at PN 4334–35.
194 Transcript 20 April 2016 See PN 1881.
195 Transcript 28 April 2016 at PN 4546–47.
196 Statement of Michael Lia, Exhibit UFU 4 at paragraph 11.
197 Transcript 20 April 2016 at PN 2135.
198 UFUA Final Outline of Submissions, 7 June 2016 at paragraphs 30–31, 51.
199 Exhibit MFB/CFA 4 at paragraph 9.
200 Exhibit MFB/CFA 6 at paragraphs 18–19.
201 Exhibit MFB/CFA 7 at paragraphs 12–13 and Exhibit MFB/CFA 8 at paragraphs 5 – 7.
202 Exhibit MFB/CFA 16 at paragraphs 52 and 59.
203 Exhibit MFB/CFA 18 at paragraphs 24–25 and 36.
204 Exhibit MFB/CFA 20 at paragraphs 30, 40 and 51.
205 Port Louis Corporation v Attorney-General of Mauritis (1965) AC 1111 at 1124; TVW Enterprises Ltd v Duffy and Others (1985) 60 ALR 687 at 694 per Toohey J.
206 [2010] FCA 591 at [44] to [45]. A subsequent appeal against his Honour’s decision failed in relation to the decision to convict QR of a breach of the relevant enterprise agreement. The appeals against sentence were upheld, but only to the extent of setting aside the penalties of $390,000; $231,000 and $33,000 in relation to the appellants and inserting the sums of $192,200; $112,000 and $16,000. (2010) 204 IR 142.
207 CPSU v Vodafone Network Pty Ltd Print PR911257, 14 November 2001 per Smith C (as he then was).
208 UFUA Final Outline of Submissions, 7 June 2016 at paragraph 138.
209 Transcript 19 April 2016 at PN791–798.
210 Transcript 20 April 2016 at paragraphs 1386 – 1390.
211 Transcript at paragraphs 1475 – 1477.
212 Transcript at paragraphs 4042 – 4066.
213 Exhibit MFB/CFA 25 at paragraph 30.
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