Country Fire Authority v United Firefighters' Union of Australia
[2012] FWA 9022
•23 OCTOBER 2012
[2012] FWA 9022 |
|
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, 23 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] On 3 October 2012 I issued a decision in this matter [PR529815]. In that decision I made a number of findings concerning the construction of Clause 99.16.6 of the Agreement and set out principles for finalising guidelines for operational use of instructors to operate pursuant to Clause 99.16.6 of the Agreement.
[2] However, in that decision I provided that:
“I will provide the opportunity for the parties to finalise the guidelines consistent with my findings and also with the opportunity to provide further submission in respect to any aspect of the guidelines which I may have inadvertently failed to resolve or any unintended consequences I failed to identify. I will then make a final decision determining the guidelines as the resolution to the dispute.
The parties are requested to provide draft guidelines and any further submissions to FWA and each other by 10 October 2012. A hearing to deal with any oral argument will be held on Friday 12 October 2012 at 3:30pm.” 1
[3] The date of the hearing was moved to Monday 22 October at the request of the UFU. I considered the written submissions of the parties and also their supplementary oral submissions. I then indicated to the parties my views about these matters and provided the opportunity for any further submission. In this decision I refer to the issues by reference to changes proposed to the draft guidelines proposed by the CFA on 17 October 2012.
[4] At paragraph 62 I set out an objective that the guidelines should meet. At 63 of the decision in setting out my findings in respect to the content of the guidelines I stated that:
“In order to ensure that the Guidelines meet this objective I propose, subject to consideration of further submissions, that the guidelines should be based on those set out in the draft Chief Officer Instruction proposed by the CFA but they should be modified as follows...”
[5] It was my intention by these words, as I stated in paragraph 64, to:
“provide the opportunity for the parties to finalise the guidelines consistent with my findings and also with the opportunity to provide further submission in respect to any aspect of the guidelines which I may have inadvertently failed to resolve or any unintended consequences I failed to identify.”
[6] The CFA propose to add at the end of the objective the words: “Subject to the outcome of the review referred to in the note at conclusion of this document, it is considered that the following guidelines meet those objectives.” I agree that this addition is appropriate and consistent with my decision.
[7] The CFA did not delete the restriction “within the District” in the sections of the guidelines except in the section relating to minimum crewing. Having considered the submission this was not an unintended consequence or an oversight and the guidelines in this respect should be consistent with my decision.
[8] The CFA do not use the term “level 2 or 3 incidents” but instead use the term “level 2 or 3 incident or a level 1 incident which the Chief Officer considers will involve a protracted fire.” The CFA argue that Clause 99.16.6 refers to protracted fires and incidents and that the evidence of the Chief Officer was that a limited number of level 1 incidents can be protracted. My proposal was to address the evidence of the Chief Officer that some level 2 or 3 incidents are significant but not protracted and the desire of the CFA to have the guidelines cover both significant and protracted incidents. I also had regard to the evidence of the UFU witnesses. I considered my proposal best reflected my assessment of the mutual intention of the parties and was a preferable approach to protracted fires and incidents. After further consideration the CFA accepted that the guidelines should reflect my decision in this respect.
[9] The CFA do not include the provision that “the SDO shall advise the CFA’s Employee Relations Unit who in turn, will provide details to the UFU office.” The CFA argue that in some cases it may cause delay or be impractical for the CFA’s Employee Relations Unit to be the point of contact with the UFU office and that it may be more appropriate in some cases for the SDO to contact the UFU directly. Having considered the submission this was an unintended consequence. However, to ensure that the monitoring process for the purposes of the trial is satisfied the requirement for the SDO to notify the CFA’s Employee Relations Unit should be included in the guidelines.
[10] The CFA do not include the requirement to provide details, including time and location details, to the UFU in respect to use for level 2 and 3 incidents. Having considered the submission this was not an unintended consequence or an oversight and the guidelines in this respect should be consistent with my decision.
[11] The CFA do not include the word “evidence” in respect to the information to be provided to the UFU in respect to use for minimum crewing. The CFA propose that the following words meet this requirement: “the notification will include time and location details, and detail the steps that have been taken in order to satisfy the requirement of exhausting all practicable measures to fill the substantive vacancy...” I agree with the CFA submission that the word evidence is too vague in the circumstances and that the CFA words largely meet the intention of the decision. However, the wording should also include a requirement to provide details of “the nature of the operational requirement and/or the incident and advice as to the outcomes in respect to the steps taken to fill the vacancy”.
[12] The CFA have deleted the words in the guidelines that specified the steps which would be taken to fill the vacancy by alternative means in respect to operational use for minimum crewing. The CFA regard this as being covered by the words “all practical measures must first have been exhausted to fill the relevant vacancy with substantive Firefighters and Station Officers; this includes overtime and relief.” I deal with this matter later when considering the UFU proposal concerning an appendix to specify the vacancy filling process.
[13] The UFU submits that the proposals in paragraph 63 do not accord with the objectives in paragraph 62, or the reasoning process in the balance of the decision.
[14] The UFU argues that inclusion of operational use to maintain minimum staffing in the manner contemplated in paragraph 63 of the decision:
- Is not contemplated by the example given in Clause 99.16.6 and therefore it is not apparent why operational use to maintain minimum staffing is included in the decision.
- Does not place realistic limits which are consistent with a cautious or conservative approach. Without the requirement for UFU agreement the UFU argue that it is difficult to ensure that the objective is complied with.
- Is not consistent with the requirement for agreement in respect to other fire incidents in the example given in Clause 99.16.6 if this is the basis for the inclusion of minimum crewing.
- Is not consistent with the words protracted fires and incidents as minimum manning is not necessarily associated with such incidents.
- Is not consistent with the findings at paragraph 29 and 46 of the decision.
- If the “other fire incidents” example does not apply then there is no requirement at all to reach agreement between the parties. The requirement of the CFA to advise the UFU is not consistent with this and to the extent that the decision interprets the clause as allowing the CFA an unfettered discretion to use instructors at fire stations then the UFU would have no protection based on the terms of the Enterprise Agreement itself.
[15] I have found in my earlier decision that Clause 99.16.6 does not restrict operational use to the example given. Minimum staffing is not covered by the example about a fire or other incident given in Clause 99.16.6. On merit I have decided that operational use for minimum staffing should be included based on the evidence of the Chief Officer to which I referred. However, I have decided both as a matter of merit and as a matter of the proper construction of Clause 99.16 and 99.16.6 in particular that operational use for this purpose must be restricted and must be approached conservatively and cautiously. For this reason I have provided that other options to fill the vacancy must be exhausted, that the UFU must be advised in all cases and must be advised prior to use except where this would compromise operational requirements, that the guidelines for use can only be altered by agreement or otherwise consistent with the Agreement processes, and that operational use pursuant to the guidelines should operate on a trial basis and be reviewed to ensure that the objectives are being met at the end of the trial period. The submission of the UFU does not convince me to reconsider my earlier decision in respect to operational use for the purposes of minimum staffing on a restricted and conditional basis for a trial period.
[16] The UFU propose that at the end of the trial and until the guidelines to apply after the end of the trial are resolved, operational use shall not occur. The UFU regard this as the status quo which existed prior to the trial.
[17] 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. The very nature of the trial is that the status quo does not apply during the trial period. Although I specified a trial period to 1 April 2012 it was not my intention that the trial period should end until the outcome of its review was known.
[18] The matters raised by the UFU have satisfied me that following provision in my decision requires some clarification:
“The guidelines should operate on a trial basis during the period from 15 October 2012 to 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 and if this has been the case what modifications to the guidelines should be implemented to avoid recurrence. The parties should 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 to consider an application to modify the guidelines pursuant to this dispute and Clause 15 Disputes Settlement procedure.” 2
My intention was that if either party sought changes to the guidelines because they believe, taking into account the evidence from the trial, that the guidelines have not operated consistent with the objective, then if agreement on modifications to the guidelines could not be reached then these matters would be determined pursuant to this dispute and Clause 15 Disputes Settlement procedure based upon an application by either party to relist this matter. My intention was that this process would lead to the finalisation of the guidelines pursuant to the process set out in Clause 99.16.6 of the Agreement and that after that the guidelines would become the policy which the CFA would apply to the operational use of instructors. It was also my intention that this process would be completed quickly and certainly by no later than May 2013. I do not accept the UFU proposal that the guidelines should not operate during this period, however, I do accept that the trial process and timeline as outlined below should be included in the guidelines as follows.
“These guidelines will operate on a trial basis during the period from 30 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.”
[19] The UFU also include in the guidelines a provision that they are “policy that is dealt with elsewhere in this agreement and may only be varied by agreement” in accordance with clause 24 of the Agreement. To the extent that it is necessary I have dealt with the issue of variation to the guidelines when finalised in the preceding paragraph.
[20] The UFU propose the inclusion in the guidelines of an “approved list” of eligible operational instructors. That list would include evidence of skills maintenance as per Clause 99.19 of the Agreement. The UFU propose that only operational instructors who have volunteered by providing an expression of interest can be recalled for operational duties on station. The proposal for operational use to operate on a voluntary basis was not argued before me in the proceedings. I am not convinced by the submission that I should modify the guidelines to include such a provision. It might be argued that this is to ensure consistency with the objective that:
The integrity of the system whereby adequate reliever resources are employed consistent with the Agreement and that otherwise rostering for relief is on a voluntary basis is maintained.
This is a matter which in my view is best considered in the review of the trial. I consider that the requirement to have the appropriate skills and qualifications is already adequately dealt with in the guidelines and in the Agreement.
[21] The UFU propose the inclusion of a recall process as an appendix to the guidelines as the process to be followed to ensure that all practical measures to fill a vacancy have been completed. The UFU propose that this is the process is to be followed except where it can be demonstrated to the UFU that due to urgency and public and firefighter safety it is not practicable in the circumstances to do so. In the proceedings there was not much difference in the evidence of the UFU and the CFA in respect to the process followed for seeking to fill vacancies. Although there are aspects of the UFU proposal which are clearly inappropriate, I consider that specifying the currently utilised vacancy management process would be appropriate and would be of assistance to the UFU and the CFA in avoiding disputes in a situation where decisions are being made to meet operational needs within tight time constraints. However, I have decided that if I am unable to finalise this within the timeframe I now establish for the finalisation of the guidelines then this will not be included and the matter will be further considered as part of the trial. It would not be appropriate for me to determine the vacancy management process as part of this dispute. The CFA agreed that the provision from the earlier draft should be included in the guidelines. This should apply to the process of establishing whether or not there are other practicable measures to fill the substantive vacancy for minimum staffing purposes and also for level 2 and 3 incidents. The parties should attempt to supplement this with a statement of the steps to be taken in the vacancy management process.
[22] The UFU propose the inclusion of provisions for SDO approval to utilise instructors operationally for level 2 or 3 incidents. Given the appropriate authority is clear within the CFAs systems and given the requirement that the UFU be notified which I have included in the guidelines, I do not consider that this addition is necessary for the purposes of the trial.
[23] The UFU propose the inclusion in respect to level 2 or 3 incidents that advice to the UFU at the earliest opportunity means that “CFA must notify the UFU prior to the use of Operational Instructors unless it would compromise public and firefighting safety to do so.” Having considered the submission this was not an unintended consequence or an oversight and I consider that the issue of whether or not the CFA notifies the UFU at the earliest opportunity is a matter best considered in the review of the trial.
[24] The UFU propose some additional details in respect of entitlements. The parties agreed to modify the third dot point under Application to include the word “shall” instead of “may” in the third sentence and to modify the first sentence to make reference to the requirements under the appropriate part(s) of the Agreement.
[25] The UFU raised a concern about the second dot point under the heading General in the guidelines. However, this was not a matter which was in contention in the proceedings and it is clearly directed at and is consistent with Clause 99.16.3 and 99.16.4 of the Agreement.
[26] The UFU object to the document being a Chief Officer Directive. I consider that the document should be headed “Guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement.” However, if the CFA wish to issue this attached to a Chief Officer Directive I see nothing inappropriate in this course of action.
[27] The CFA is to prepare a revised version of the guidelines to reflect this decision by noon on 24 October 2012. Where the UFU believes that the CFA document does not reflect this decision they should show their proposed variations in tracked changes by close of business on 25 October 2012, together with any explanatory comments. The parties are encouraged to confer to narrow any differences. The parties may provide any comments on the remaining issues by 4pm on 26 October 2012. A brief hearing to finalise the guidelines will be held at 9am on Monday 29 October 2012. A decision will then be issued to publish the guidelines to be utilised for the purposes of the trial. The commencement date for the operation of the trial will be varied to start from 30 October 2012.
COMMISSIONER
Appearances:
Mr T Jacobs for the CFA.
Mr T Dixon for the UFU.
Hearing details:
2012
Melbourne
October 22
1 PR529815 at paragraphs 64 and 65.
2 PR529815 at paragraph 63 second dot point.
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