Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 8490

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.

[2012] FWA 8490

FAIR WORK AUSTRALIA

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, 3 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] In April 2011 the Country Fire Authority (CFA) made an application (C2011/4118) to deal with a dispute concerning operational use of instructors pursuant to Clause 99.16 of the Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement). There were associated disputes concerning instructor pay progression pursuant to Clause 99.12 of the Agreement and the CFA sought United Firefighters’ Union of Australia (UFU) agreement to a document Operational Use of Instructors Business Rule and Senior Instructor Position Description. There were six conferences before FWA in respect to this matter, and an associated matter (C2011/5604), between May and August 2011. Progress was made but agreement was not reached between the parties on the guidelines or business rule for operational use of instructors. On 30 January 2012 the CFA lodged a further dispute notification which is the matter currently before me (C2012/2410).

[2] Attached to the dispute notification on 30 January 2012 was correspondence between the parties. Mr Skiba on behalf of the CFA wrote to the UFU on 23 December 2011. That correspondence stated that: “CFA believe the parties agree in principle to the content of the attached Business Rule with the exception of the following.” The CFA then set out its understanding of the differences between the parties as relating to two points. Firstly, that the UFU required UFU/CFA agreement prior to the use of an Operational Instructor whilst the CFA believed notification after the event is more appropriate. Secondly, that the UFU had concerns about the process to ensure that all other avenues to fill a vacancy had been exhausted whilst the CFA believed that the business rule adequately dealt with this.

[3] The UFU Secretary Peter Marshall responded to the CFA on 10 January 2012. That correspondence stated that:

“Following a meeting of the parties before FWA an agreement was reached between the parties where in the terms as reflected in the UFU prepared Business Rule the process for accessing the services of an instructor in other duties than those of their principle employment arrangements. We have advised that a representative of the UFU would be available to be contacted in the event that there was a need to use an instructor in the operational roles envisaged by the CFA. We have also advised that the UFU would not unreasonably withhold agreement to allow the use of instructors.”

[4] After two further attempts at conciliation I advised the parties on 22 May 2012 that I considered conciliation to be exhausted.

[5] The UFU notified of a jurisdictional objection. I issued directions on 12 June 2012. The position of the UFU at that time was that the dispute had been resolved at the conciliation conference at FWA on 31 August 2011 and that agreement was subsequently recorded in a version of the business rule provided by UFU to CFA on 2 September 2011. The UFU argued that FWA could not arbitrate to settle a dispute in circumstances where the matter had been resolved by agreement in a conciliation conducted in accordance with the disputes settlement clause of the Agreement. The parties in their submissions now agree that the parties have not to date reached agreement in relation to the guidelines referred to in Clause 99.16.6 of the Agreement.

[6] There is no dispute and I am satisfied that the dispute concerns the application and implementation of Clause 99.16 Operational Use of Instructors and that the provisions of the disputes resolution clause of the Agreement (Clause 15) have scope to deal with such a dispute and that the relevant provisions of the disputes resolution clause have been followed. Clause 15 of the Agreement is at Attachment 1 to this decision.

[7] Although the dispute specifically relates to the finalisation and implementation of guidelines for operational use contemplated by Clause 99.16.6 of the Agreement it is necessary to consider that provision in the context of Clause 99.16 as a whole. The clause is as follows.

“99.16. Operational Use of Instructors

99.16.1. The role of Instructors is the coordination, development/preparation and delivery of training consistent with their agreed position description. Instructors skills and experience may be utilised to mentor career staff or volunteers.

99.16.2. An Instructor will not:

(a) Perform operational response duties normally undertaken by Career Firefighters, Station Officers, Operations Officers, Operations Managers and/or volunteers.

(b) Be a Regional Duty Officer or perform Regional Duty Officer (RDO) activities.

99.16.3. Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used in a functional or specialist role within an Incident Management Team (IMT) at a type 2 or 3 incident and also be utilised for the following roles:

(a) Air Attack Supervisor

(b) Air Base Manager

(c) Air Observer

(d) Aircraft Officer

(e) Fire Investigator Wildfire/Structural

99.16.4. The Instructors must have the requisite qualifications and endorsement by the Chief Officer. When considering the requirement to utilise instructors in a functional or specialist role within an IMT, the Operations Manager should have regard to offering these operational opportunities to trained firefighters and Station Officers who require skills acquisition, skills maintenance, further experience and/or mentoring to become "endorsed" or maintain their skills.

99.16.5. For instructors who do not have 5 years operational experience, the parties agree to develop career opportunities and career paths (other than into operational firefighting). The parties will seek the assistance of FWA by way of conciliation to help to achieve this outcome.

99.16.6. Notwithstanding the above provisions, the parties agree in principle for instructors who have completed a CFA recruit course to be utilised operationally. In this context, the parties will develop guidelines which must be agreed between the parties for such use within 3 months. To avoid any doubt the instructors that are referred to above who may be used for operational purposes must be instructors who at the time of their appointment as instructor were already appointed to one of the CFA firefighting ranks referred to in clause 11 above. Such guidelines will include the use of operational instructors at protracted fires and incidents and other fire incidents on a case by case basis as agreed by the parties.

99.16.7. Given the inherent dangers of firefighting and the need to ensure safety of all CFA employees and volunteers, Instructors will be under the command of the Chief Officer.”

[8] I had the benefit of submissions from the CFA and the UFU and evidence from Chief Officer Ferguson 1 for the CFA and from Senior Station Officer James Kefalas2 for the UFU.

[9] After a long period of conciliation the positions of the parties in respect to the appropriate guidelines to be implemented for operational use of instructors pursuant to Clause 99.16.6 were confirmed. The CFA seeks that the dispute be resolved by the implementation of the guidelines it seeks. 3 The UFU for its part seeks different guidelines.4

[10] The significant differences between the CFA and UFU proposed guidelines are as follows:

ISSUE	CFA GUIDELINES	UFU GUIDELINES
Operationally trained instructors may be used at fires and incidents provided that firefighters and station officers are not available to perform such roles. Extent of search for available firefighters.	Firefighters and station officers within the District.	No reference to within the District.
Type of fires and other incidents to which instructors may be deployed.	Deployed to significant and protracted fires and incidents	Deployed to protracted fires and incidents.
Conditions for operational use	Conditions only apply to where instructors are deployed to maintain minimum staffing.	Conditions apply for all operational use
Extension beyond protracted fire or incident must be agreed between the parties
The State Duty Officer must first demonstrate that the vacancy management process has been applied and overtime and relief options fully investigated and there is no practical solution utilising other career firefighters.	Genuine need must be demonstrated
All practicable measures must have been exhausted to fill the vacancy including overtime and relief.	All avenues, including recall on overtime, must be exhausted
Evidence has been provided to UFU that all other avenues have been exhausted
Secondment from another fire service must be considered
Operational use for functional role in fire danger period must be advised to UFU
Provision for higher duties where qualified to do so	Instructor will operate at substantive operational rank
Guidelines may be varied at any time by the Chief Officer

Is there jurisdiction for FWA to determine the dispute where the parties have not agreed to private arbitration?

[11] There are a large number of provisions in the Agreement where there is a requirement for a matter to be determined or determined by agreement between the UFU and the CFA during the life of the Agreement. Clause 15 Disputes Resolution of the Agreement is very expansive in its scope. It provides for matters to be settled by FWA by conciliation and if necessary arbitration including:

“15.1.1. all matters for which express provision is made in this agreement; and

15.1.2. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and

15.1.3. all matters pertaining to the relationship between the CFA and UFU, whether or not express provision for any such matter is made in this agreement, and

15.1.4. all matters arising under the National Employment Standards.”

[12] Looking at the context of the Agreement as a whole there are some circumstances where the Agreement explicitly precludes FWA from arbitrating a matter except by mutual consent. For example:

• The adjacent sub-clause to the subject of this dispute, Clause 99.16.5, only provides for conciliation not arbitration of a dispute concerning development of career paths “other than into operational firefighting”.

“99.16.5. For instructors who do not have 5 years operational experience, the parties agree to develop career opportunities and career paths (other than into operational firefighting). The parties will seek the assistance of FWA by way of conciliation to help to achieve this outcome.”

• Clause 88.18 provides that “employees covered by this agreement cannot be directed to perform EMR in any situation other than in response to a defined type of Priority O case.” FWA could not arbitrate to direct employees to perform EMR in other cases. However, FWA could arbitrate a dispute about whether or not a particular situation was a “defined type of Priority O case.”

[13] There are other circumstances where the requirement for agreement or for the matter to be determined is specified but there is no specific mention of how disputes about the matter is resolved. In some of those contexts it would create significant and obvious operational difficulties for an emergency firefighting service if the disputes resolution provision was not able to be utilised in the absence of agreement. For example:

• Clause 88.12 provides that training for emergency medical response (EMR) will be “conducted at an agreed location”. Failure to reach agreement would have the obvious consequence that training in emergency medical response could not proceed. This would have an obvious detrimental effect on the community given that there is clear evidence that the performance of EMR by firefighters has saved lives.



• Clause 24 provides that “policy that is dealt with elsewhere in the agreement may only be varied by agreement”. Clause 89.1 defines policy in respect to appliances as being covered by Clause 24. Failure to reach agreement could have the obvious consequence that new firefighting equipment may not be able to be deployed.



• Clause 90.1 provides that the “the employer shall provide at each station/location such amenities as agreed between the union and employer.” In certain limited circumstances failure to reach agreement could compromise the health and safety of employees or prevent capital works from being completed.

[14] Clauses which require a matter to be developed and agreed during the life of the Agreement vary. For example, Clause 19 provides for that “within the first six months of this agreement, the parties will develop an Employee Code of Conduct.” However, there are provisions about what occurs “until that code of conduct is agreed” and what occurs “once the code of conduct has been developed and agreed.” This contrasts with Clause 99.16.6 where the term “must” is used and where there is an agreement in principle outlined and an identification of matters which will be included and there are no provisions about what occurs before and after.

[15] The lack of consistency in the treatment of “reserved matters” in the Agreement is further illustrated by the following examples:

• Clause 91 where “the parties have agreed to a template plan and guidelines for new integrated fire station design. That document is the Integrated Fire Station Design Guidelines 2004 or its replacement as agreed between the parties.” In this case there is a clearly identified position prior to any change. There is no timeline specified for introduction of any changed guidelines.



• Clause 92 provides that “the CFA will use its best endeavours to develop within the first 6 months of this agreement guidelines for the design and specification of appliances and equipment...”



• Clause 95.4 provides that “the parties agree to determine within 3 months the minimum operational Station Officer modules/skills required for a Leading Firefighter to...perform higher duties...”



• Clause 95.5 provides that “the parties agree to review Station Officer relief requirements...”



• Clause 98 provides that “during the first six months of this agreement the parties will meet to decide on the appropriate levels of remuneration... when employees covered by the agreement are on relieving duties or project work in locations other than fire stations....”



• Clause 102.5.5 provides that “the Consultative Committee will consult regarding the development of business rules to apply to the RDO/SDO function by mid 2011, including the development of business rules to improve workload distribution within and across Regions. Should there be no resolution of this matter, it will be referred to the FWA for conciliation, and if necessary, arbitration.”

[16] I am satisfied that the provisions of Clause 99.16.6 must be read in the context of the other provisions of Clause 99.16 and Clause 99 as a whole. Reserved matters are not dealt with consistently in the Agreement as a whole. However, I am satisfied that the context of the industrial practice of the parties and consideration of the provisions of the Agreement as a whole, establishes that reserved matters are able to be resolved by utilising the disputes settlement procedure unless there is specific provision to the contrary or if the context of the particular provision makes it clear that the use of the disputes settlement procedure is constrained. A significant number of reserved matters under this Agreement have been resolved in this manner.

[17] The primary submission of the UFU is that the following words prevent FWA from arbitrating where the parties have not agreed on the guidelines.

“Notwithstanding the above provisions, the parties agree in principle for instructors who have completed a CFA recruit course to be utilised operationally. In this context, the parties will develop guidelines which must be agreed between the parties for such use within 3 months.”

UFU argue that if FWA were to arbitrate the matter in the current circumstances it would be determining a matter contrary to the express terms of the Agreement. It is clear that Section 739 of the Act prevents FWA from determining a dispute in a manner which is inconsistent with the terms of the Agreement.

[18] I have carefully considered the submissions of the parties in respect to this matter. In my view the words:

“the parties will develop guidelines which must be agreed between the parties for such use within 3 months.” (emphasis added)

should be distinguished from words such as “when guidelines are agreed between the parties” or “if guidelines are agreed between the parties” or “only where guidelines are agreed between the parties.” Such alternative words would suggest that unless agreement is reached the provision would not be able to operate.

[19] Furthermore the first sentence specifies that the parties have agreed in principle for operational instructors to be utilised operationally. This strongly suggests that the second sentence is about how to translate the in principle agreement into something which can operate. In context therefore the imperative word “must” is about the guidelines being finalised for use within three months. In this context if the parties cannot reach agreement on the guidelines within three months then the provision is able to operate by the use of the disputes settlement procedure to resolve any differences.

[20] The UFU argue that the use of the word must is about the reaching of agreement and indicates that the provision does not operate unless there is agreement, in other words the disputes settlement procedure cannot be used to impose an agreement. In my view this is not consistent with the context. If this was what was meant then the approach used elsewhere in the Agreement to exclude FWA arbitration would be used. If this was what was meant then why would the timeframe of 3 months be present? Also if this was what was meant why would there be an agreement in principle if there was no capacity to bring that agreement into operation during the life of the Agreement if agreement on the detail was not then reached. Both parties would have known that failure to reach agreement in three months was quite likely given the history of other reserved matters in previous Agreements.

[21] The evidence of Mr Kefalas for the UFU establishes that many of the provisions of Clause 99.16 have been in earlier collective agreements involving the parties but that Clause 99.16.6 is a new and additional provision in the current Agreement. I am satisfied that the parties intended that the addition of Clause 99.16.6 was significant and that the parties intended that it would result in something new and additional to the earlier provisions in respect to operational use of instructors.

[22] The evidence of Mr Kefalas is that during negotiations Clause 99.16.6 went through a number of stages of development. In the first stage there was no “agreement in principle” but only an agreement that “the parties will agree to develop within 3 months guidelines for operational use of instructors.” In the second stage there was an addition that “such guidelines will include the use of operational instructors at protracted fires and incidents and other fire incidents on a case by case basis as agreed by the parties.” Then in the final version the in principle agreement was included followed by the words “in this context, the parties will develop guidelines which must be agreed between the parties for such use within 3 months.” 5

[23] In my view the history of the development of the clause during the negotiations suggests a strengthening of the mutual commitment that guidelines for operational use must be implemented. It does not support the contention of the UFU that the development of the provisions strengthened the requirement that operational use would not occur during the life of the Agreement in the event that the parties could not reach agreement. Of course the evidence of the various drafts used in the lead up to the Agreement is not strictly relevant as it cannot be evidence of the mutual intention of the parties given that it is the final agreement which counts. We do not know what was in the mind of the parties which led to the changes in drafting in the lead up to the final agreement. It may be that an agreement to change other provisions, such as the provisions in respect to wage increases and career progression for instructors, may have led the parties to agree to change the words in this particular provision. It is idle speculation. I am satisfied that the history of the various drafts of the clause during negotiation do not assist in the proper interpretation of the clause which was finally agreed.

[24] In my view, read in context, the parties intended that by including Clause 99.16.6 instructors who have completed a CFA recruit course would be utilised operationally once guidelines had been finalised. The clause records that the parties “will develop guidelines” and that those guidelines “must be agreed” for such use within three months. The use of the term must rather than the term will or may is significant. In context the use of the word must denotes a requirement that the task be completed. It is not a statement that the parties will endeavour to do something or that something will not occur unless both parties agree to it. The term “for such use” is a clear reference to the ability for instructors to be utilised operationally. In context it reinforces the requirement that the task be completed so that it can be implemented within three months. The clause provides that the in principle agreement will be converted into a practice through the guidelines which must be developed and agreed for such use within three months. If the disputes settlement procedure cannot be utilised the clause cannot be operative because otherwise there is no guarantee that the task will be completed.

[25] I am not satisfied that the words can be read in context as providing that in the absence of agreement between the UFU and the CFA Clause 99.16.6 will not be implemented during the life of the Agreement. If this was the intention of the parties then the term would have provided a specific limitation on the disputes settlement process as occurs in the immediately preceding sub-clause 99.16.5 or would have utilised different words which clearly indicate that implementation would not occur if agreement was not reached such as “when guidelines are agreed” or “if guidelines are agreed”. The evidence of the UFU concerning the context does not alter this conclusion. I accept that the UFU regarded the addition of Clause 99.16.6 as a significant concession and as a significant departure from historical practice which prevented instructors from being utilised operationally except for the limited circumstances set out in Clause 99.16.3 and in response to incidents at the Fiskville training ground as set out in Clause 99.21. That historical practice had been regulated for a number of years in previous agreements. The other significant change in Clause 99 in the present Agreement was the introduction of an enhanced career path for instructors.

[26] The construction I have adopted is consistent with the ordinary language and it should be preferred because it will enable the clause to serve a real purpose and have substantive operation. 6

[27] It is common in agreements, and especially in this Agreement, for provisions to include a promise to finalise matters which have been agreed in principle during the life of the Agreement. A promise to negotiate a matter is an enforceable provision where there is a disputes settlement term of the agreement which is wide in its scope as in the present circumstances. In settling such a dispute FWA might, depending upon the circumstances, determine a process for negotiation where there has been a refusal to negotiate but where there has been an inability to finalise a matter because of disagreement over the content of the guidelines then FWA can resolve the dispute by settling the dispute over the content of the guidelines.

[28] I am satisfied that read in context the provisions of Clause 99.16.6 and Clause 15 allow FWA to arbitrate the dispute over the content of the guidelines for operational use of instructors.

What does the clause specify concerning the scope of the guidelines and in particular what is the meaning of: “Such guidelines will include the use of operational instructors at protracted fires and incidents and other fire incidents on a case by case basis as agreed by the parties”?

[29] Read in context it is not in contention that the guidelines will result in operational instructors being able to be used operationally in a wider range of situations than specified in Clause 99.16.3 but not so widely as to be able to be utilised without limitation. It cannot be without limitation otherwise the terms 99.16.1 and 99.16.2 which define the role of the instructors and limit their work to instruction would be meaningless.

[30] Operational use provided for by the guidelines contemplated by Clause 99.16.6 must be wider than Clause 99.16.3 or otherwise the words notwithstanding the above provisions with which 99.16.6 begins would be meaningless. Also 99.16.4 read in context provides that operational firefighters can be utilised for the purposes set out in Clause 99.16.3 provided that opportunities for other suitable firefighters are not compromised. In context therefore the new provision in the Agreement, 99.16.6, is not about the creation of guidelines for the uses in Clause 99.16.3. The uses in Clause 99.16.3 existed in earlier agreements and read in context Clause 99.16.4 allows instructors to be used for these purposes provided that the condition in Clause 99.16.4 is observed.

[31] The uses in 99.16.3 are described as operational opportunities in 99.16.4. There was evidence and some submissions from the UFU that the functions in Clause 99.16.3 were generally conducted remote from the actual fire ground and this was distinguishable from what was contemplated by the term operational use in Clause 99.16.6. I accept this evidence. The Chief Officer gave evidence that not all of the specialist and functional roles covered by Clause 99.16.3 were management roles which involved supervision or coordination of other personnel. I accept this evidence.

[32] The evidence established that generally protracted fires and incidents were type 2 or 3 incidents. However, the Chief Officer gave evidence that in limited circumstances a type 1 fire or incident could be sufficiently serious and complex in its consequences to be protracted. It is also clear that the term use at protracted fires and incidents is also broader than the term a functional or specialist role within an Incident Management Team (IMT) at a type 2 or 3 incident in that it is not limited by the words functional or specialist role in an IMT. Some type 2 and 3 incidents are not protracted but are significant.

[33] The UFU argue that the term protracted fires and incidents and other fire incidentsmust be read as restricting the use of operationally experienced instructors to particular fires and incidents only after they have been agreed with the UFU on a case by case basis. The CFA argue that the provision such guidelines will include implies that the guidelines may include provision for use beyond the type of instance specified.

[34] The UFU argue that the words such guidelines will includeshould be read as restricting operational use to the matters of the same or similar kind as the matters expressly identified. They argue that maintenance of minimum staffing is not similar to responding to particular types of fire incidents. The UFU propose the guidelines limit the operational use of instructors operationally to protracted fires and incidents and other fire incidents where agreed between the parties. The UFU also argues that if there is no requirement for prior notification or agreement then Clause 99.16.6 could operate to completely override the restriction on operational use provided for in 99.16.2. It would leave the words in 99.16.2 with no work to do. They argue that it is intended that there be limits to operational use and the guidelines arising from Clause 99.16.6 would define those limits.

[35] The CFA argue that read in context Clause 99.16.6 provides for guidelines for instructors to be utilised operationally to be finalised and the nature of those guidelines is not limited to a particular sort of operational use. The CFA therefore propose that the guidelines cover both significant and protracted fires, not just protracted fires. The CFA also propose that the guidelines include the use of operationally experienced instructors for fire station crewing to maintain minimum staffing where all practical measures to fill the vacancy have been exhausted including overtime and relief and where such use would not result in the cancellation of training.

[36] The UFU argue that the words on a case by case basis as agreed by the parties cannot be satisfied by the provision in the guidelines which had been proposed by CFA that notification of each instance of the use of operational instructors will be provided to the UFU Office on a case by case basis at the earliest opportunity. The CFA had excluded use for significant and protracted fires and incidents from this requirement and only provided for such notification where instructors are used to ensure minimum staffing. The UFU argue that the wordson a case by case basis as agreed by the parties means that guidelines must provide for prior notification including the provision of information which demonstrates that all other alternatives have been explored and exhausted. The UFU argues that this applies to both protracted fires and incidents and also to use for other fire incidents. The Chief Officer Directive now proposed by CFA does not include any notification to the UFU.

[37] The UFU argues that it has been long established that those who are designated as relievers can be directed to work at a particular station to maintain minimum staffing. Those who are not designated as relievers can be requested but cannot be directed to perform relief work, commonly through overtime, to maintain minimum staffing. 7 The UFU argues that to require an instructor to maintain minimum staffing would be contrary to this long standing approach. The CFA argue that the traditional approach to relievers is a policy in respect to coverage for leave and other planned absences whereas in the current situation we are dealing with short term unplanned situations. CFA also argue that Clause 99.16.6 is a new provision and is not bound by past custom and practice, even if such custom and practice was accepted as relevant in this case. The Agreement prevails over any particular custom and practice.

Conclusions regarding the scope of the guidelines.

[38] Clause 99.16 is a sub-section of Clause 99 which provides for the terms and conditions particular to instructors.

[39] Clause 99.16.1 makes it clear that the role of instructors is about training. Clause 99.16.2 provides that instructors will not perform operational response duties. Clauses 99.16.3 and 99.16.6 are exceptions to this rule.

[40] Clause 99.16.3 provides for instructors to perform certain operational response duties including within an Incident Management Team (IMT) at a type 2 or 3 incident. Type 2 or 3 incidents are generally protracted fire incidents and require resources beyond the use of local or initial response resources. However, protracted fire incidents can in limited circumstances include type 1 incidents. Furthermore, operational roles at protracted fire incidents are broader than functional or specialist role within an Incident Management Team (IMT) at a type 2 or 3 incident. It is clear that Clause 99.16.6 provides for broader operational use than that provided for in Clause 99.16.3. This is made clear by the words at the commencement of Clause 99.16.6: Notwithstanding the above provisions, the parties agree in principle for instructors who have completed a CFA recruit course to be utilised operationally. The words “use of operational instructors at protracted fires and incidents and other fire incidents” is an example of what the guidelines will include and it is also clearly intended to further broaden the guidelines beyond what is provided for in Clause 99.16.3 and to provide for operational use at a particular fire station or district level.

[41] I am satisfied that read in context the wordson a case by case basis as agreed by the parties is restricted to other fire instances and is not intended to apply to protracted fires and incidents. The context suggests that the guidelines will provide for operational use, additional to that provided for by Clause 99.16.3, at protracted fires and incidents generally where this is required operationally and where use of other firefighting resources has been fully exhausted. The context suggests that the guidelines will provide for broader use at other fire incidents only on a case by case basis as agreed by the parties. The CFA in their proposed guidelines have provided that operational use for protracted fires and incidents does not require any provisions for notification or approval of the UFU. The UFU in their proposed guidelines require such approval.

[42] The CFA in their proposed guidelines broaden protracted fires and incidents to significant or protracted fires and incidents. The UFU oppose such broadening. I consider that the term “protracted fires and incidents” is shorthand for type 2 or 3 incidents. I accept the evidence that there are limited number of type 1 incidents which are protracted and a limited number of type 2 and 3 incidents which are significant but not protracted.

[43] I am satisfied that the wording does not restrict the guidelines for operational use to protracted fires and incidents and other fire incidents.The words “such guidelines will include” must have some work to do.

[44] However, I do not accept the argument of the CFA that the first two sentences:

“Notwithstanding the above provisions, the parties agree in principle for instructors who have completed a CFA recruit course to be utilised operationally. In this context, the parties will develop guidelines which must be agreed between the parties for such use within 3 months.”

mean that the scope of the guidelines is not restricted in any way by the example given in the last sentence.

[45] Both parties refer to the provision in Clause 99.16.7 in support of their position. That clause provides:

“Given the inherent dangers of firefighting and the need to ensure safety of all CFA employees and volunteers, Instructors will be under the command of the Chief Officer.”

The UFU says that this provision suggests that operational use will not extend to relief for minimum staffing given that if a firefighter is part of minimum staffing they would logically be under the command of the officer in charge of the particular station or district. The CFA says that this provision suggests that the operational use will extend beyond a narrow range of roles and will include work at the fireground generally. I am satisfied that read in context Clause 99.16.7 suggests that work at the fireground will be involved and also that operational use will not be commonplace.

[46] I am satisfied that the words mean that the guidelines will at a minimum extend operational use to include the use of operational instructors at protracted fires and incidents and other fire incidents on a case by case basis as agreed by the parties. I accept that the guidelines could extend further. However, given Clause 99.16.1 and 99.16.2 operational use of instructors is clearly intended to be the exception rather than the rule. The extension of operational use of instructors is to be approached conservatively. In this context the example given is designed to suggest the nature of the limits to be placed upon the extension of operational use.

[47] The words “as agreed between the parties” in the example given conveys that it is the intention for the parties to reach agreement on the guidelines and also that given that operational use is the exception rather than the rule a careful and consultative approach must be utilised. I read the example as restricting the type of other examples of operational use which could be included in the guidelines but it does not limit it to the specific example. Therefore it cannot mean that any other examples must only operate with prior approval of the parties on a case by case basis. In other words I do not accept that there can be no other types of operational use except where the parties give prior approval in each case.

[48] The example does however regulate the nature of the guidelines in case of specific fire incidents other than protracted fires and incidents so that operational use at other fire incidents require agreement of the parties on a case by case basis.

[49] The CFA draws attention to Clause 99.2.7:

“The parties agree that any positions over and above the current Chart in Schedule 1 will not be at the expense of career Firefighter and Station Officer numbers. Should Firefighter or Station Officer numbers increase as contemplated above they will not be at the expense of career instructor numbers.”

[50] The CFA argues that this clause supports the concept that the work of instructors should not be at the expense of jobs for career firefighters but that at the same time increases in firefighter numbers should not be at the expense of career instructor numbers. I agree with the CFA that Clause 99.2.7 does not prevent operational use of firefighters. I am also satisfied that Clause 99.2.7 read in conjunction with other provisions of the Agreement and Clause 99.16 in particular suggests that the guidelines for operational use of instructors should not compromise the career opportunities, qualifications, and job security of operational firefighters.

[51] The Agreement at Clause 18.1 provides a standard term about employees working to their skill and competence. This clause is “subject to other terms” of the Agreement. I agree with the CFA that this suggests that operational use of instructors should not be restricted more than is required by the other terms of the Agreement.

Other merit considerations.

[52] I have earlier found that the disputes settlement clause can be utilised to resolve any differences about the guidelines.

[53] I consider it would be inappropriate and inconsistent with a conservative approach to allow the resolution of a dispute about operational use of instructors to interfere with a longstanding practice in respect to the provision of relief to maintain minimum staffing. If I considered that the guidelines were effectively requiring instructors to operate as relievers on a compulsory basis undermining the established practice as set out in the decision of Commissioner Hingley I would not on a merit basis determine such an outcome in the absence of agreement. There was no evidence before me that suggested that operational use of instructors was essential for the delivery of an effective fire service in Victoria. The CFA has been able to effectively provide fire services and maintain minimum staffing required for that service for many years without operational use of instructors. It is not suggested that anything has changed which would prevent this situation from continuing.

[54] Chief Officer Ferguson says that “the capacity to use instructors in the way proposed, and subject to the conditions proposed, would enable the operations of the CFA to run more efficiently, and the flexibility involved would contribute to the better performance by the CFA of its statutory functions.” 8 I consider that this must be taken into account in determining the appropriate guidelines based on the merits however it does not suggest that operational use is required for the CFA to operate effectively.

[55] However, in my view Clause 99.16 is not about a requirement for non-relieving firefighters to act as relievers. Clause 99.16 is about the duties of instructors and the extent to which those duties can include operational use. The duties of instructors in this respect are defined by Clause 99.16.1 and 99.16.2 as modified by the exceptions provided for in 99.16.3 and 99.16.6. In this sense it is no different from the requirements in Schedule 2 of the Agreement which specify the duties of State based relievers as including relief at fire stations as required (i.e. to maintain minimum staffing) and also operational relief as required (i.e. to provide additional support at fires and incidents). Any capacity to allow instructors to be allocated on a short term basis to perform operational work including maintenance of minimum staffing does not establish a precedent for non-reliever operational firefighters allocated to a roster at a particular station to be directed to work as a reliever to maintain minimum staffing elsewhere.

[56] I accept that extension of operational use to maintain minimum staffing is strongly opposed by the UFU unless there is prior approval of the UFU. The UFU want this safeguard to ensure that all other avenues to fill the position are exhausted and also to protect the long standing practice that those who are not designated as relievers can be requested but cannot be directed to perform overtime to maintain minimum staffing. I accept the argument of the CFA that Clause 99.16.6 is a new provision and is not bound by past custom and practice and that the Agreement prevails over any particular custom and practice. However, for the reasons outlined earlier extension of the guidelines to cover operational use to maintain minimum staffing must be approached cautiously and conservatively.

[57] Chief Officer Ferguson gave evidence of the advantages that would accrue to CFA operations if instructors are able to provide short term assistance in cases where minimum staffing is not able to be maintained after other normal avenues are exhausted. Appliances can only be operated safely with the minimum staffing complement. Where minimum staffing is not available this may result in a station effectively reverting to volunteer only response which may affect response times and effectiveness. 9 Chief Officer Ferguson also gave evidence that skills currency and maintenance for instructors will be enhanced by operational use.

[58] Chief Officer Ferguson gave evidence that the UFU proposal for CFA to contact the UFU prior to a decision for operational use being made is unworkable, impractical and would amount to an effective veto. Chief Officer Ferguson suggested that the constraints this would place on his authority would be inconsistent with his obligations under the CFA Act. Mr Kefalas gave evidence that the UFU would not unreasonably withhold approval and that the UFU was available and responsive as evidenced by the successful operation of other clauses in the Agreement which require approval of the UFU on a case by case basis.

[59] I consider that the parameters for the guidelines I propose are consistent with the Agreement. The powers of the Chief Officer and the CFA include the power to enter into collective agreements with the workforce. Such agreements are consistent with many of the other objectives of the CFA. The guidelines are pursuant to the Agreement which has been freely entered into by the Chief Officer and the CFA.

What guidelines are appropriate?

[60] Clause 99.16.3 makes operational use of instructors subject to the condition “provided that Firefighters and Station Officers are not available to perform such roles.” I am satisfied that this restriction should also operate in respect to the extension of operational use contemplated by Clause 99.16.6 and that this should be included in any guidelines. The CFA have accepted this in their guidelines except that they provide that there is only a requirement to exhaust available alternatives in the “district” whilst the UFU propose that it should apply to the whole State. The UFU also require that opportunities for secondment from another fire service should also be exhausted. I find it difficult to see how the requirement to exhaust secondment opportunities can be an implied part of the guidelines or a practical proposition on the merits.

[61] I am satisfied that the requirement to establish that firefighters and station officers are not available to perform such roles should not be confined to the district. Depending upon the particular situation it may be appropriate to fill a role from outside the district. The evidence established that this was current practice. However, I believe the guidelines should make it clear that the requirement to seek to fill the role from firefighters and station officers outside the district should only be where this is practical and does not compromise the operational requirement.

[62] Having regard to the proper interpretation of Clause 99.16.6 in context, the other requirements of the Agreement including Clause 99.16.3 and 99.2.7 in particular, and the various merit considerations raised by the parties, I am satisfied that the guidelines should have the following objective.

“Guidelines for operational use of instructors are separate from the 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 protection of 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 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 is on a voluntary basis is maintained.



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

[63] 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:

• The objective I propose should be inserted.



• 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.



• The restriction to “within district” should be modified where it appears to add a requirement to seek to fill the role from firefighters and station officers outside the district using the normal processes where this is practical and does not compromise the operational requirement.



• The expression “significant or protracted fires and incidents” should be replaced with “level 2 or 3 incidents.” Although this is a marginal extension in one respect and a marginal restriction in another respect of the term “protracted fires and incidents” in the example given in Clause 99.16.6 it removes ambiguity and uncertainty since protracted fire is not defined but level 2 and level 3 incidents are clearly defined.



• In respect to all operational use by operational instructors there should be an additional requirement as in the earlier CFA proposal 10 that “notification of the use of operational instructors will be provided to the UFU Office on a case by case basis at the earliest opportunity. The SDO shall advise the CFA’s Employee Relations Unit who in turn, will provide details to the UFU office. This notification will include time and location details.” This provision will ensure that the trial and the review of the trial are effective.



• In respect to operational use by operational instructors to maintain minimum staffing there should be an additional requirement that “except where it would compromise operational requirements the UFU Office is to be advised on a case by case basis prior to instructors being utilised for this purpose. Where it would compromise operational requirements the UFU is to be advised at the earliest opportunity. Evidence is to be provided to UFU that all other practicable avenues to fill the vacancy have been exhausted.” This provision will ensure that the trial and the review of the trial are effective. It is also consistent with my conclusion that the extension of operational use for this purpose and beyond the scope of the example in Clause 99.16.6 must be approached cautiously and conservatively.



• There is only a capacity to vary the guidelines either by agreement between the UFU and the CFA or consistent with the disputes settlement procedure.

[64] 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.

[65] 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.

COMMISSIONER

Appearances:

Mr T Jacobs for the CFA.

Mr T Dixon for the UFU.

Hearing details:

2012

Melbourne

September 28

 1   Exhibit CFA 1.

 2   Exhibit UFU 1.

 3   Exhibit CFA 4.

 4   Exhibit UFU 2, Attachment 2.

 5   Exhibit UFU 1, paragraph 19 and Attachments JK3, JK4, and JK 5.

 6   Catholic Regional Office Sydenham v IEUA[2011] FWAFB 2784 at paragraph 41.

 7   Re United Firefighters Union of Australia [Print P4498], per Hingley C.

 8   Exhibit CFA 1, paragraph 23.

 9   Exhibit CFA 1, paragraph 26.

 10   Exhibit UFU 2, Attachment 1.

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