Country Fire Authority v United Firefighters' Union of Australia

[2014] FWC 4408

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.229—Bargaining order

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

DEPUTY PRESIDENT SMITH

MELBOURNE, 2 JULY 2014

Statement — application by Country Fire Authority for a bargaining order.

[1] I have reserved my decision in relation to good faith bargaining orders sought by the Country Fire Authority (CFA) against the United Firefighters’ Union (UFU) in relation to the current round of enterprise bargaining.

[2] The parties have been engaged in bargaining since March 2013 and it appears that little significant progress has been made, although there have been numerous meetings and a considerable amount of material exchanged.

[3] On 20 February 2014 an interim order was issued, amended on 4 April 2014, and yesterday further orders were sought. One of the orders sought by the CFA was for further bargaining to occur under the auspices and direction of the Fair Work Commission (the Commission).

[4] The issues between the parties are not simple and involve decisions of the Federal Court of Australia and High Court of Australia. These matters are not easily solved. However, there does need to be a circuit breaker in the negotiations to see if an agreement is possible in the short term, having regard to the fact that these negotiations have continued since early 2013.

[5] I have decided to convene a high level conference and invite the Chief Executive Officer of the CFA and the Secretary of the UFU to a private conference with me to examine the structure of the negotiations. Each may bring with them their chief negotiator. I am not inclined to involve the legal representatives at this stage, but, if both sides agree that they wish to bring legal representation, I do not object to that course. I will not issue a decision in relation to the latest CFA application until this conference has occurred but, unless it is agreed otherwise, the decision will issue following that conference.

[6] I ask the parties to contact my Associate as soon as possible to arrange a mutually convenient time when this conference can take place.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Court heard an application by the Country Fire Authority (CFA) against the United Firefighters' Union of Australia (UFUA), seeking a bargaining order to compel the union to engage in good faith bargaining regarding certain industrial provisions. The case was heard in the Fair Work Commission (FWC). The CFA, representing the interests of firefighters and the broader community, argued that the union had failed to participate in mandatory bargaining discussions, hindering the establishment of necessary workplace arrangements. The UFUA, on the other hand, contended that the CFA had not provided sufficient information to facilitate meaningful discussions and had acted in bad faith by not adhering to the agreed-upon bargaining protocols.

The primary legal issue before the FWC was whether the union had unreasonably refused to bargain and whether the CFA had discharged its onus of proving that it had made a genuine effort to engage in good faith negotiations. The FWC had to assess whether the union's actions constituted an unreasonable refusal to bargain and whether the CFA had demonstrated that it had taken all reasonable steps to encourage the union to participate in the bargaining process. Furthermore, the FWC needed to determine whether the CFA's application met the statutory requirements for obtaining a bargaining order under the Fair Work Act.

The FWC found that the union had unreasonably refused to bargain as it had not engaged in the discussions in good faith. The commission held that the CFA had discharged its onus by providing evidence of its efforts to facilitate negotiations, including detailed proposals and communication with the union. The FWC concluded that the union's failure to engage constructively had impeded the bargaining process, thereby warranting the grant of a bargaining order. Consequently, the FWC issued an order compelling the union to engage in good faith bargaining with the CFA regarding the specified industrial provisions. The union was directed to participate in the discussions as mandated by the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established