CPSU, the Community and Public Sector Union v Victorian State Emergency Services

[2011] FWA 6291

[2011] FWA 6291

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Workplace Relations Act 1996
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)

CPSU, the Community and Public Sector Union
v
Victorian State Emergency Services
(C2011/5477 and C2011/5430)

VICTORIAN STATE EMERGENCY SERVICE AUTHORITY AGREEMENT 2006

State and Territory government administration
COMMISSIONER SMITH	MELBOURNE, 13 SEPTEMBER 2011

Alleged dispute concerning the downgrading of classifications, the introduction of casual employment, the introduction of psychometric testing, and consultation.

[1] The following decision, now edited, was issued during proceedings conducted on 1 September 2011.

[2] I will deal with C2011/5430 and C2011/5477, and to that extent those matters are joined. The issue in dispute appears to me to be the proper application of clause 9 of the Victorian State Emergency Service Authority Agreement 2006 [AG847293]. Clause 9 provides that the employer will consult with the employees where the employer is considering a restructure of the workplace, the introduction of new technology, or changes to existing work practices.

[3] The CPSU submits that there are three decisions made by the State Emergency Service which attract the operation of clause 9. Those decisions are:

• the introduction of psychometric testing;



• the changing of the regional training positions from VPS 4 to VPS 3;



• the introduction of casual employment in an area that has been undertaken traditionally by permanent employees; and



• a change to the reporting lines.

[4] The CPSU submits that the tribunal should halt all of the proposed changes until there has been consultation in accordance with clause 9 of the agreement.

[5] It is submitted by the State Emergency Service that the statements made by the CPSU are not in the form of evidence; that it has not seen a copy of any proposed order from which submissions could be made, and that the proposition appears to be broad and uncertain. It is submitted by the SES that the agreement was certified under s.170LW and extended and varied in 2009, and that the dispute has not been properly characterised. It is further submitted that if consideration is given to an interim order, there must be at least a serious issue to be tried and there must be the balance of convenience which favours the granting of the order.

[6] It is drawn to my attention that clause 9.5.1 under the extended and varied agreement deals with minor change and that is to be contrasted with clause 9.1 which deals with major change, and that the matters over which there is said to be a dispute about the operation of clause 9 more properly falls under clause 9.5.1 and not 9.1. It is further submitted that there is an issue as to whether or not the matter affects current employees. To the extent that power exists, it is submitted that the power to make an interim order may be affected by the referral of powers from the State to the Commonwealth, no doubt having regard to the considerations raised in Re: AEU.

[7] It appears to me that I should have further material to assist in the understanding of the factual matrix of the issues which are said to be relevant to the obligation to consult. I direct the parties to confer and seek to agree upon the factual circumstances of each of the matters which are the subject of the notification. To the extent that they don’t agree on the factual circumstances, then a separate document from each party can be lodged outlining their views. This material should be lodged by close of business on 11 September. Having received that material, I will then advise the parties of further proceedings.

COMMISSIONER

Appearances:

J Reid for the CPSU, the Community and Public Sector Union.

C Molnar Solicitor on behalf of the Victorian State Emergency Service Authority.

Hearing details:

2011.
Melbourne:
September, 1.

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<Price code A, AG847293  PR514563>