Country Fire Authority v United Firefighters' Union of Australia

[2014] FWC 1293

[2014] FWC 1293

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

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

s.587(1)(c)—Application to dismiss an application on the grounds that it has no reasonable prospects of success

United Firefighters’ Union of Australia
v
Country Fire Authority
(C2014/3064)

DEPUTY PRESIDENT SMITH MELBOURNE, 21 FEBRUARY 2014

Application by the CFA for a good faith bargaining order; application by the UFU to dismiss; good faith bargaining order issued.

[1] The following decision, now edited, was issued during proceedings conducted yesterday.

[2] There are two applications before me. The first is an application by the Country Fire Authority (CFA) for the Commission to make a bargaining order against the United Firefighters’ Union (UFU). The second application is made by the UFU for the Commission to dismiss the application made by the CFA.

[3] I turn, firstly, to the jurisdictional prerequisite for making a bargaining order.

[4] Section 229(4) of the Fair Work Act 2009 (the Act) deals with the circumstances which must obtain. There appears to be no issue between the parties that those jurisdictional prerequisites have been met. I am satisfied that the jurisdictional requirements exist to consider the application made by the CFA.

[5] I now turn to the merit of the application. To begin, the UFU argue that draft orders 2 to 6 lodged by the CFA are unnecessary. In any event, the kernel of this case revolves around proposed order 1, which is in the following terms:

The United Firefighters’ Union of Australia serve on the Country Fire Authority its comprehensive log of claims, including any claims for increased wages and allowances by 4 p.m. on 21 February 2014.

[6] For the UFU, it is argued that the processes adopted by the parties was to permit the CFA to present its views and explain them prior to the UFU having to be asked to submit its views. It was put that this process should be allowed to continue further. Given the reliance on the Victorian Government Wages Policy it is argued the UFU and the CFA needed to discuss and consider the various aspects of measuring and distributing productivity changes. It was put that this needed to occur before quantification of productivity was addressed. In addition, the UFU argued that an order directing the party to bargain in a particular way was beyond power. It cited the proposal for a comprehensive log of claims and also submitted that this was uncertain.

[7] For the CFA, it was argued that it was impossible to understand and respond to the UFU’s bargaining position unless it knew the full scope of what was sought. It was argued that the conduct of the UFU was designed to delay and that this was particularly evident from its failure to follow the recommendation of Commissioner Roe, to which both parties agreed. It was submitted that it needed to consider what was sought by the UFU before it could provide reasoned responses.

[8] Section 228 sets out what are good faith bargaining requirements. I do not read those sections. Relevantly, section 228(1)(d) provides:

“Giving genuine consideration to the proposals of the other bargaining representatives for the agreement, and giving reasons for the bargaining representatives responses to those proposals.”

[9] It is inherent in this that the bargaining representatives must know the proposals of each of the bargaining representatives to enable a response and reasons for such a response. It would appear to me that it is axiomatic that, to respond with reasons, there must be some specificity in the bargaining process.

[10] I agree with the CFA that it is important to have at an early stage what the parties believe to be the scope of bargaining which is to occur. This does not mean that the agenda for bargaining cannot change. In most cases, it will, as parties seek an agreement and strive for consensus. Without necessarily being critical of the UFU, I find that its current approach does not constitute good faith bargaining. This is particularly so against the background of the recommendation of Commissioner Roe on 21 May 2013.

[11] In bargaining, each side seeks a tactical advantage to produce a substantive advantage in the outcome of bargaining. However, there does come a time when the parties must commit themselves to the substance of bargaining with the objective of seeking to reach an agreement. Whilst I appreciate the undertaking given at the beginning of the proceedings today, there has been some uncertainty in the past. In my view, it is time for greater certainty to exist. Therefore, I shall issue an order which seeks to put the process between the parties on a more productive footing.

[12] I will adopt, with some amendments, proposals put forward by the CFA, which were based upon issues I raised during the hearing yesterday. The variations that I will make are to order 1(a), which will now read:

“A consolidated log claims in the form of a draft enterprise agreement which outlines the outcomes sought”

[13] With a similar amendment to order 2(a).

[14] The adjournment date will be to 2.15 p.m. on 26 March 2014. It follows from my reasons and order that the application to dismiss the CFA’s application on the basis of no reasonable prospect of success must fail. Accordingly, it is dismissed. I will issue the order and these reasons as quickly as I can.

DEPUTY PRESIDENT

Appearances:

J. Bourke Senior Counsel with T. Jacobs of Counsel on behalf of the Country Fire Authority.

M. Harding of Counsel for the United Firefighters’ Union of Australia.

Hearing details:

2014.

Melbourne:

February, 19 and 20.

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