Country Fire Authority v United Firefighters' Union of Australia

[2014] FWC 7929

[2014] FWC 7929 [Note: An appeal pursuant to s.604 (C2014/7731 was lodged against this decision - refer to Full Bench decision dated 4 December 2014 [[2014] FWCFB 8703] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.229—Application for a bargaining order

Country Fire Authority
v
United Firefighters’ Union of Australia
(B2014/442)

DEPUTY PRESIDENT SMITH MELBOURNE, 11 NOVEMBER 2014

Bargaining in good faith; demands which are inconsistent with Re: AEU; Federal Court decision followed.

[1] On 21 February 2014 a decision was issued 1 which resulted in an Interim Order2 directed to both the Country Fire Authority (CFA) and the United Firefighters’ Union of Australia (UFU) about bargaining for a new enterprise agreement. That Order was varied for technical reasons on a number of occasions, but on 1 July 2014, a further request was made to vary the Interim Order to be more prescriptive in relation to the bargaining process. At the conclusion of the hearing I issued a statement3 which advised that I would convene a high level conference of the parties to explore options for settlement. Whilst constructive, unfortunately the conference did not produce the progress necessary for the matter to be resolved. In my experience, it is not unusual in Victoria Public Sector (VPS) employment where there has been a tendency to adopt a bargaining practice of dealing in absolutes until a crisis point is reached.

[2] The original decision found that the necessary jurisdiction existed which gave rise to an Interim Order. The time has now come for a final decision to be taken so as to avoid confusion in relation to the jurisdictional requirements for the making of a good faith bargaining order.

[3] The issue now raised by the CFA arises from the conduct of the UFU in bargaining and is consequent upon a decision 4 of Justice Murphy of the Federal Court of Australia.

[4] Justice Murphy found:

“I have some difficulty in treating the implied constitutional limitation as applicable to industrial agreements that are bona fide voluntarily entered into by a State party and which may therefore have no practical impact on a State’s capacity to govern. However, in my view the Melbourne Corporation principle as expressed in Re AEU applies to an enterprise agreement approved by the Commission, whether or not it is voluntarily entered into by the State party. Given the UFU’s concessions that cll 26, 27, 28 and 122 of the Agreement are terms of the type described in Re AEU¸ they are invalid and cannot be enforced. 5”

[5] Following the granting of the Interim Order, it is argued by the CFA that the UFU continued to make demands which were found by the Court to be inconsistent with the implied constitutional limitation on legislative power of the Commonwealth and accordingly invalid and unenforceable. His Honour also considered the impact or otherwise of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act).

[6] It is argued by the CFA that to pursue a demand/s, the terms of which the Court has found to be invalid and unenforceable in the current Agreement, is not bargaining in good faith. Whilst this is not a simple matter, it would be a self evident truth. It must also be said that if true, bargainers representing a particular constituency would be doing a disservice to that constituency if they pursued arrangements knowing that they were invalid and unenforceable. It must be a primary objective of any bargainers to ensure that the fruits of their endeavours can be valid and enforced. It should not be that a bargain can be ignored because there can be no enforcement of a provision through industrial law. The establishment of rights and responsibilities in agreements is a serious matter for both employees and employers.

[7] Some further background explanation is needed of the particular circumstances of this case.

[8] On 31 January, His Honour Justice Murphy of the Federal Court of Australia delivered judgement on a number of issues which were agitated before him. For the purpose of this decision I propose to draw attention to one of those matters. That is, whether or not certain clauses of the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Agreement 2010 [AE881690] (the Agreement) offended the principles in the decision of the High Court in Melbourne Corporation v Commonwealth 6 as reflected in the decision Australian Education Union; Ex parte Victoria7(Re: AEU). His Honour found that the following clauses did offend Re AEU and as such were invalid and unenforceable:

Clause 26 Contracting Out/Maintenance of Classifications
Clause 27 Safe Staffing Levels
Clause 28 Secondment & Lateral Entry
Clause 122 Lateral Entry.

[9] In short, the decision of Murphy J found that those clauses inhibited the State’s right to “determine the number and identity of the persons whom it wishes to employ, the term of the appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds.” 8

[10] That decision is subject to appeal but I must give respect to the law as it stands as expressed by Murphy J.

[11] In opposing the application, the UFU argued that it had varied the demands in light of the decision of Murphy J and that bargaining was a dynamic process. It was submitted, that the demands were more about protecting the practices of firefighters who work in emergency situations rather than inhibiting the State as to whom it could employ. It redrafted clauses with a view to overcoming the Re: AEU finding by Murphy J.

[12] The focus by CFA and this decision is the redrafted clauses now numbered as 44 and 45. Those clauses are headed:

44 CFA Systems Conditions.
45 Greater Alarm Response Systems and Move Up Systems.

[13] I turn firstly to examine the new clause 44.

[14] The previous clause 27, which was found to offend Re: AEU, began:

“27.1 Consistent with the Chief Officers direction and for reasons including employee health, safety and welfare, the current staffing ratios, locations and levels as set out in Schedule 1 will be maintained as a minimum for the life of this agreement. Accordingly, the CFA will employ at all times:... ”

[15] From there follows the prescription of a minimum number of employees together with the rank and firefighting positions.

[16] The new clause 44 has this preamble:

“44.1 The employer shall implement and apply the CFA Systems Conditions to the duties and work of firefighters when deployed on operational responses.

44.2 The provisions of this clause shall be interpreted and applied having regard to the inherently dangerous nature of firefighters’ duties on operational responses but not so as to limit the right of the employer to determine the number and identity of the persons whom it wishes to employ or the term of that appointment.”

[17] What follows is an extensive list of firefighting crew levels (including rank) depending upon incidents and appliances. In addition, the clause seeks to declare as unsafe any crewing level which is less than that prescribed. A further element of the clause is where the employer implements a crewing system which is less than that applying as at 30 September 2013 then a productivity bonus is paid. The argument is that with fewer people performing the same task there is productivity improvement.

[18] As with matters arising in relation to the construction of agreements, characterisation of a clause is everything. In this matter, it is appropriate to ask the question if the two clauses have different distinctive characters. The previous clause 27 sought to invoke occupational health and safety reasons for determining the crewing levels, although it was directive in its terms. The redrafted clause 44 again seeks to invoke occupational health and safety but then declares as unsafe any crewing level below that set out.

[19] It is well established that, that which cannot be done directly, cannot be done indirectly. 9

[20] There is an immediate tension between declaring systems of work as unsafe if particular criteria are not met and then seeking a productivity bonus if such a system is introduced. This juxtaposition supports a conclusion that the true characterisation of clause 44 is one which is directed towards determining the number and identity of persons who will be employed. I find that the proposed clause 44 is one of a similar character to that found by Murphy J to contravene Re: AEU. In reaching this conclusion, I do not seek to undermine or in any way suggest that a shared approach to occupational health and safety is not of critical importance in this area of employment. This is an important responsibility of the Chief Fire Officer and the regulator.

[21] To complete this aspect I do not criticise a desire to measure productivity for the purpose of wage increases as bargaining in Victorian Public Sector employment has focussed on demonstrable future productivity gains. Fewer people performing the same work can be one such measure.

[22] Clause 45 is interlinked 10 to the operation of clause 44 and as such must suffer from the same vice as has been found to exist with the demands contained in clause 44.

Conclusion

[23] The focus of this case has been on the demands contained in clauses 44 and 45. In respect of these two clauses I find that the pursuit of them in their current form does not constitute bargaining in good faith. These are serious matters which the parties should discuss so that CFA and firefighters can accept that there is a shared interest in occupational health and safety. I concur with the views expressed by the UFU that discussion is needed on the respective interests of the parties. To pursue actual staffing levels and the allocation of staff is, on the state of the law at present, contrary to Re: AEU. It appears that Murphy J had some reservations about the interaction of agreements with the capacity of the State to govern, as, with respect, do I. I observe at this stage that the focus on over technical jurisdictional arguments may need to be put to one side in negotiations and greater attention given to the prerogative of management and the necessarily shared interest in OH&S matters.

[24] I will vary the Interim Order to now make a final order about the future. The order will state, amongst other matters, that clauses 44 and 45 (or any demand which has the same effect) of the UFU’s revised log of claims cannot be pressed as it would constitute a failure to bargain in good faith. I also discern that the parties seek a conference pursuant to s.240 of the Act. To this end I will convene one at the convenience of the parties although given the political dynamics of this case; I suggest that it be after the State election.

[25] I add, lest it be thought that I am not alive to the fact that the Full Court of the Federal Court is reserved on an appeal against the decision of Murphy J, that this decision is based on the state of the law as I find it and should that change, I shall invite submissions as to whether or not to set aside the final order.

DEPUTY PRESIDENT

 1   [2014] FWC 1293.

 2   PR548014.

 3   [2014] FWC 4408.

 4 (2014) 218 FCR 210.

 5   Ibid at paragraph 133.

 6 (1947) 74 CLR 31.

 7 (1995) 184 CLR 188.

 8   Ibid at 232.

 9   [2012] FWAFB 7551.

 10   See clause 44.3.1.

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