Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 9261

[2012] FWA 9261 [Note: An appeal pursuant to s.604 (C2013/5359) was lodged against this decision - refer to Full Bench decision dated 6 November 2013 [[2013] FWCFB 8165] for result of appeal.]

FAIR WORK COMMISSION

FURTHER DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Country Fire Authority
v
United Firefighters' Union of Australia
(C2012/2410)

COMMISSIONER ROE MELBOURNE, 29 OCTOBER 2012

Alleged dispute concerning the finalisation of guidelines to enable the operational use of instructors. Clause 99.16 Operational Use of Instructors and Clause 15, Dispute Resolution, of Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010.

[1] Following the decisions issued on 3 October 2012 and 23 October 2012 the CFA provided draft guidelines which reflected the decisions and the UFU provided comments on those guidelines. A further hearing was held to finalise the guidelines for the purposes of the trial on 29 October 2012.

[2] I noted that the words in the second last sentence of paragraph 21 of the decision of 23 October 2012 [PR530503] “and also for level 2 and 3 incidents” had been included in error. Neither party suggested this be incorporated in the guidelines.

[3] There were two remaining differences. One of these was resolved by agreement and to my satisfaction during the proceedings on 29 October 2012. The remaining issue was the inclusion of the detailed steps of the CFA Vacancy Management Process in the guidelines in respect to operational use of instructors for minimum staffing purposes. My decision in respect to this matter is set out at paragraph 21 of the decision of 23 October 2012 [PR530503].

[4] I was unable to document the CFA Vacancy Management Process at this time. The guidelines provide that the State Duty Officer must demonstrate that this process has been applied prior to operational use for minimum staffing purposes. This is in the context of the opening sentence of that part of the guidelines which provide that all practical measures to fill the vacancy have been exhausted. The parties clearly understand what the vacancy management process is as they apply it successfully on a daily basis. The trial will reveal if there are any real issues around this.

[5] In partial resolution of the dispute I have determined the guidelines which will operate pursuant to Clause 99.16.6 for the purposes of the trial. Those guidelines are Attachment A to this decision.

[6] I have decided that the dispute in this matter which is before me is not settled until the guidelines are finalised and that will be after the review of the guidelines at the end of the trial period are completed.

[7] In partial resolution of the dispute I have also determined that the guidelines will operate on a trial basis during the period from 30 October 2012 until 1 April 2013. The guidelines shall be reviewed at the end of the trial period to identify if there have been any instances where they have not operated consistent with the objective (set out in the guidelines) and if this has been the case what modifications to the guidelines should be implemented to avoid recurrence. The parties shall meet to review the trial in the first two weeks of April 2013. If agreement cannot be reached then any modification to the guidelines will be determined at a hearing convened at the request of either party pursuant to this dispute (C2012/2410) and Clause 15 Disputes Settlement procedure. The trial guidelines shall continue to operate whilst the dispute is being determined. The objective is to finalise the guidelines pursuant to Clause 99.16.6 of the Agreement by May 2013. Thereafter the guidelines would become the policy, subject only to amendments agreed or resolved consistent with the Agreement, which the CFA would apply to the operational use of instructors pursuant to the Agreement.

COMMISSIONER

Appearances:

Mr T Jacobs for the CFA.

Mr T Dixon for the UFU.

Hearing details:

2012

Melbourne

October 29

Printed by authority of the Commonwealth Government Printer

<Price code C, PR530823>

Attachment A

Guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement

PURPOSE & APPLICATION

Provides direction when considering the operational use of Instructors

OBJECTIVES

Guidelines for the operational use of instructors are separate from provisions for operational use for the purpose of mentoring of other firefighters as part of the instructional role as provided for in clause 99.15 and Clause 99.16.1 and for the purpose of the skills maintenance and development of instructors as provided for in clause 99.19 and for the purpose of the Fiskville training facility as provided for in Clause 99.21. Guidelines for other operational use pursuant to Clause 99.16 should ensure that operational use of instructors must not compromise the following objectives:

● The primary role of instructors is in training

● Operational use should not compromise the training responsibilities of instructors

● All other practical alternatives to meet an operational need should be exhausted including the redeployment and recall of other firefighters and the use of overtime prior to the operational use of instructors

● The integrity of the system whereby adequate reliever resources are employed consistent with the Agreement and that otherwise rostering for relief on a voluntary basis is maintained

● The career opportunities, qualifications and job security of operational firefighters and instructors are not diminished or compromised

Subject to the outcome of the review referred to in note at conclusion of this document, it is considered that the following guidelines meet those objectives.

DEFINITIONS

Instructor – External Appointment means an appointed Instructor who does not hold a CFA operational rank.

Operational Instructor meansan appointed or seconded Instructor who at the time of their appointment to the Instructor role held a CFA operational rank and has completed a CFA recruit course.

APPROVED ACTIVITIES

Instructor – External Appointment

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a level 2 or 3 incident; in addition to the following;

● Air Attack Supervisor (AAS)

● Air Base Manager

● Air Observer

● Aircraft Officer

● Fire Investigator wildfire and / or structural

For an instructor to undertake any of the roles identified above, they must hold the requisite qualifications and relevant endorsement from the Chief Officer.

Operational Instructors

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a Level 2 or 3 incident.

In addition, where there is a Level 2 or 3 incident and Firefighters and Station Officers are not available to perform the required roles relating to the incident, Operational Instructors may be deployed to perform those roles (which can include specialist response activities) provided that:

a) Doing so does not result in them being unable to carry out scheduled training or in the cancellation or postponing of scheduled training; and

b) They hold the requisite qualifications and relevant endorsement from the Chief Officer applicable to the performance of the role.

Notification of the use of Operational Instructors for this purpose will be provided to the UFU Office by the CFA on a case by case basis at the earliest opportunity and the notification will indicate the time and location details of the incident and the nature of the incident, and the CFA officer who gives such notification to the UFU Office shall also ensure that the CFA'S Employee Relations Unit is informed as soon as practicable of the notification given to the UFU Office.

Operational use for fire station crewing – Operational Instructors Only

Operational Instructors may be deployed to a fire station to maintain minimum staffing subject to the following conditions;

● All practicable measures must have first been exhausted to fill the relevant vacancy with substantive Firefighters and Station Officers; this includes overtime and relief. Where it is practical and it does not compromise operational requirements, those measures are to include filling the relevant vacancy through relief from outside the relevant district. In particular for the State Duty Officer to approve the use of Operational Instructors for this purpose, the following must first be demonstrated:

○ The vacancy management process used to fill a vacancy with career Firefighters and Station Officers has been applied,

○ Overtime and relief provisions have been fully investigated,

○ No practical solution has identified available career Firefighters or Station Officers to be used for this work.

● Approval must be provided by the State Duty Officer (SDO) to utilise Operational Instructors for this purpose.

● When a decision is made to use an Operational Instructor for station crewing, the CFA will notify the UFU office prior to instructors being used for that purpose except where it would compromise operational requirements (in which case the notification will be given at the earliest opportunity).The notification will include time and location details, the nature of the operational requirement and/or incident, detail the steps that have been taken in order to satisfy the requirement of exhausting all practicable measures to fill the substantive vacancy mentioned in the first dot point including advice as to the outcomes of taking those steps. The CFA officer who gives such notification to the UFU Office shall also ensure that the CFA'S Employee Relations Unit is informed as soon as practicable of the notification given to the UFU Office.

● The use of an Operational Instructor for this purpose should not directly result in the cancellation of a planned / programmed training session. This includes the time off duty / rest period required following their shift.

Application

● The availability of an Operational Instructor must consider the hours of work already performed.

● Any Operational Instructor undertaking these duties will be provided with a rest period as required prior to returning to normal duties.

● Any Operational Instructor shall be paid overtime where applicable in accordance with the provisions in the Agreement. This time cannot be accumulated and later taken as time in lieu. The instructor shall receive any other allowances or entitlements as provided for in their terms and conditions of employment when undertaking these authorised duties.

● The instructor will operate at their substantive operational rank when undertaking these duties.

Higher Duties or Relief to Operations Officer Positions – Operational Instructors Only

● Operational Instructors who are qualified to do so, are able to provide relief to an Operations Officer position, provided there is no Operations Officer or Station Officers able to perform the role.

● Operational Instructors at Fiskville where qualified to do so, are able to provide relief to those Operations Officer positions at Fiskville in the first instance.

GENERAL

● Instructors are able to participate in any after action review or operational debrief.

● Any planned or proposed use of an instructor to perform a functional role through the fire danger period as defined by a districts preparedness planning, must be discussed with, and be agreeable to the Operations Manager, MTD and the Instructor concerned.

Operation and Review

These guidelines will operate on a trial basis during the period 15 October 2012 to 1 April 2013 in accordance with the Decision of Commissioner Roe in CFA v UFUA[2012] FWA 8490. In accordance with that decision the guidelines shall be reviewed at the end of the trial period to identify if there have been any instances where they have not operated consistent with the objective and if this has been the case what modifications to the guidelines should be implemented to avoid recurrence. The parties shall meet to review the trial in the first two weeks of April 2013. If agreement cannot be reached then any modification to the guidelines will be determined at a hearing convened at the request of either party pursuant to this dispute (C2012/2410) and Clause 15 Disputes Settlement Procedure. The trial guidelines shall continue to operate whilst the dispute is being determined. The objective is to finalise the guidelines pursuant to Clause 99.16.6 of the Agreement by May 2013. Thereafter the guidelines would become the policy, subject only to amendments agreed or resolved consistent with the Agreement, which the CFA would apply to the operational use of instructors pursuant to the Agreement.

Dated 30 October 2012