Emergency Services Telecommunications Authority T/A Esta 000 v United Firefighters' Union of Australia

[2018] FWC 4351

[2018] FWC 4351[Note: An appeal pursuant to s.604 (C2018/4259) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Emergency Services Telecommunications Authority T/A ESTA 000
v
United Firefighters’ Union of Australia
(C2018/1895)

COMMISSIONER BISSETT DARWIN, 1 AUGUST 2018

Alleged dispute about any matters arising under an enterprise agreement – jurisdiction to deal with dispute – characterisation of dispute – training and rosters – capacity to require roster change on completion of training – roster change requirement not contrary to the provisions of the agreement.

[1] On 11 April 2018 Emergency Services Telecommunications Authority T/A ESTA 000 (ESTA) notified a dispute to the Fair Work Commission (Commission) pursuant s.739 of the Fair Work Act 2009 (FW Act) and in accordance with the dispute settlement procedure in the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 1 (Agreement).

[2] The dispute arises from a decision by ESTA to offer Fire Dispatcher (DP) training to Fire Call-takers (CT) at its Ballarat facility. To become a DP a CT must complete the required training program and a consolidation period during which they are mentored. Both components must be satisfactorily completed for a successful move to a DP role. The offer of training in this instance is such that, once the training period, including consolidation, is completed, the DP will be required to work a 4 day on/4 day off (4 on/4 off) roster. The rostering post training is relevant as Fire CTs broadly work a 4 on/4 off roster or a 4 day on/5 day off roster (4 on/5 off).

[3] In February 2018 ESTA commenced a consultation process with its employees in relation to its proposal to offer Fire DP training on the basis that applicants would need to agree to work a 4 on/4 off roster.

[4] On 5 March 2018 Mr Alex Williams, a United Firefighters’ Union of Australia (UFU) workplace delegate, notified ESTA of a dispute in relation to the requirement to work a 4on/4 off roster at the completion of training under clause 49 of the Agreement. The dispute was escalated within ESTA through steps 1, 2 and 3 of clause 49 of the Agreement where it failed to settle. As a result of this ESTA notified the dispute to the Commission.

[5] ESTA identified the dispute as being whether ESTA is prevented by the Agreement from offering Fire CTs at the Ballarat State Emergency Control Centre (BALSECC) the opportunity to undergo training as a Fire Dispatcher on the basis that the relevant dispatcher positions will be rostered on a 4 on/4 off basis.

[6] Conferences of the parties were held on 13 April 2018 and 4 May 2018. Following the last conference I requested, and the UFU provided, a more detailed exposition of what it said were the matters in dispute between the parties.

[7] On 9 May 2018 the UFU advised as follows:

What is the dispute about?

a. The failure by ESTA to increase the skill and competency levels of all employees and to provide equal opportunity for promotion and access to career path progression in accordance with sub-cl 8.1 of the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 (Agreement) by limiting access to the proposed Fire Dispatch Course(s) at Ballarat (the Course) to Fire Call-takers working a 4on/4off roster, or who agree to transition to a 4on/4off roster.

b. The failure by ESTA to allow employees to undertake the Course, in accordance with cl 20.3 of the agreement, that is, subject only to:

a. Training resource capacity;

b. ESTA’s assessment of the employee’s suitability based upon their current performance; and

c. The Employee’s availability for that training.

c. The failure by ESTA to select employees for the Course on an equitable basis, subject to the provisions of sub-cl 20.3, in accordance with sub-cl 20.4.

d. The failure by ESTA to follow the process prescribed by cl 27, including 27.5.2(a), in circumstances where it intends to carry out a substantial change in operations including by a substantial variation to shift rosters.

e. ESTA making an extra claim relating to the introduction of rostering changes during the life of the Agreement.

f. ESTA making an extra claim relating to the process of workplace reform during the life of the Agreement.

Relief sought

a. For the Course to be offered to all Fire Call-takers with satisfactory current performance and who are available to undertake the training, subject to ESTA’s training resource capacity.

b. For new Fire Dispatch positions to be offered to all qualified employees, regardless of the roster worked by those employees.

c. That any proposal by ESTA to introduce rostering changes proceeds in accordance with cl 27, including by agreement with the majority (50%+1) of Employees affected.

Status quo

The status quo allows for training to proceed if offered to all employees.

The status quo enables the operation of the Ballarat Centre conformably with its operations over the entirety of its existence.

Further directions

It is acknowledged that not all aspects of the dispute referred to above have been through the three steps prescribed by cl 49.1.4 to 49.1.6 of the Agreement.  Accordingly, we request that the matter be listed for a directions hearing to enable the parties to be heard on the appropriate directions to be made in order to progress the dispute...

[8] On receipt of this information ESTA also requested that the matter be listed for Directions.

[9] A Mention and Directions hearing (Mention) in relation to further programming of the dispute was conducted before me on 17 May 2018. At that Mention the UFU acknowledged that its characterisation of the dispute extended beyond that as notified initially by Mr Williams but said that it was content for that broader dispute to be referred to arbitration if there was no objection to that course of action by ESTA or the Commission.

[10] ESTA indicated that it was prepared to proceed with the dispute as articulated in the UFU email of 9 May 2018 on the basis that it was just a different articulation of the dispute as notified by Mr Williams and as notified by ESTA to the Commission.

[11] The scope of the dispute to be arbitrated is not agreed by the parties.

Urgency

[12] ESTA seeks to have the new Fire DPs trained and operational prior to the commencement of the fire season which typically commences at the beginning of December. To achieve this timeframe ESTA wish to commence the expressions of interest and selection for training in early August. It therefore seeks an urgent consideration by the Commission of the dispute.

[13] For this reason, the reasons for my decision are brief. In reaching my decision I have taken into account all of the evidence and submissions put to me.

History

[14] Call-takers and DPs at Ballarat (and other State Emergency Communications Centres at Tally Ho and the World Trade Centre) initially commence work specialising in one service (their primary service). Call-takers and DPs who train in an additional service (secondary service) receive a higher rate of pay. Employees skilled in more than one service are referred to as “Multi-skilled employees”. Multi-skilled employees work in their primary service but are required to spend time in the secondary service to maintain skills in that area.

[15] Prior to the current Agreement, fire call-taking and dispatching was broken down into the two fire services – MFB and CFA. The Agreement merged this into one service (fire) but employees who were skilled in both services continue to have the two previous services recognised for salary purposes.

[16] Prior to 2016 Fire CTs and DPs at Ballarat worked a 4 day on/5 day off (4 on/5 off) roster. All other employees in Ballarat (and in the other two centres) worked (and continue to work) a 4 on/4 off roster.

[17] In 2016, pursuant to clause 27.5 of the Agreement, ESTA sought to change the roster of Fire CTs and DPs in Ballarat to a 4 on/4 off roster. The affected employees were consulted in accordance with the Agreement. They subsequently voted in accordance with the procedures laid down in the Agreement not to move to the 4 on/4 off roster. A number of the employees involved in that consultation process remain on the 4 on/5 off roster.

[18] Since the vote to reject the roster change ESTA has not recruited any new Fire CTs at Ballarat. Further, a number of Fire CTs who were on the 4 on/5 off roster requested to move to a 4 on/4 off roster and a number of CTs who had a primary service other than fire have become multi-skilled employees with fire as their secondary service.

[19] In 2017 ESTA conducted a consultation process with its employees in relation to its proposal to offer Fire DP training in 2017 on the basis that the relevant Fire DP positions will be rostered on a 4 on/4 off basis (that is, on the same terms as the 2018 training). Some issues were raised by individuals in that consultation process that were apparently resolved. No broader issues were raised by the UFU. The training proceeded and DPs who completed the 2017 training program moved on to a 4 on/4 off roster.

[20] The consultation process in relation to the same proposal for 2018 has given rise to the current dispute.

[21] There is no disagreement that there are CTs who have fire as their primary service and who work a 4 on/5 off roster who may wish to participate in Fire DP training but who do not wish to move to the 4 on/4 off roster.

Characterisation of the dispute

[22] The dispute notified by ESTA to the Commission reflects the dispute raised by Mr Williams in the workplace.

[23] The UFU has sought to extend the dispute beyond those boundaries. Whilst ESTA was prepared to accept the broader dispute, it did so on the basis that it was no more than a different articulation of the dispute in that the UFU sought to invoke additional clauses of the Agreement it said ESTA’s proposal breached.

[24] The UFU says that it understood that ESTA had accepted its broadening of the dispute. As I comprehend it, the dispute, on the UFU’s formulation, is not confined to the basis on which Fire DP training is offered (that is, that the successful Fire DPs will work a 4 on/4 off roster) but rather whether ESTA can, as it has done, alter what the UFU says is the standard roster for Fire CT and DPs of 4 on/5 off through a process engaged in since 2016.

[25] During the hearing ESTA made it clear that it did not accept the broadening of the dispute as now articulated by the UFU; that the newly articulated dispute had not been subject to the mandatory initial steps in the dispute settlement procedure; and the Commission did not have the power to deal with the dispute as now put by the UFU.

[26] I do not accept the characterisation of the dispute as put by the UFU. There is no doubt that the dispute as notified by Mr Williams was in relation to the 2018 Fire DP training and whether the offer of training on the grounds the Fire DPs worked a 4 on/4 off roster breached the provisions of clauses 8.1, 20.3 and 20.4 of the Agreement. This was identified in Mr Williams’ email to Ms Clare Anderson of ESTA on 5 March 2018 and as then escalated by him under the dispute settlement procedure to Mr Ben Piper of ESTA and finally Mr Ari Cassarchis of ESTA.

[27] In notifying the dispute to the Commission ESTA said in its application that “The dispute refers to ESTA’s decision, made after a period of consultation, to offer a Fire Dispatch training course on the basis of a 4 days on 4 days off roster… A dispute has been lodged by a BALSECC Fire employee contending that by offering the Fire Dispatch course on a 4 days on 4 days off roster ESTA is in breach of” clauses 8.1 and 20.4 of the Agreement.

[28] I am satisfied however that the clauses under the Agreement that it is now said operate as a bar to ESTA offering the training as it has may be broadened to clauses 8.1, 20.3, 20.4 and 27 of the Agreement.

[29] Whilst I accept that a dispute can evolve over time, and change its shape and its character as it moves through the dispute settlement procedure including conciliation before the Commission, there is no evidence that this is the case in the matter before me. Mr Williams’ articulation of the dispute did not alter as he moved it through the internal steps of the dispute settlement procedure and the dispute notified to the Commission reflected this. The dispute would still be as it was notified by Mr Williams had ESTA not sought to bring the matter before the Commission. The dispute notified by ESTA was that articulated by Mr Williams. This was the dispute subject to conciliation. Nothing occurred, save the UFU providing an email (as sought by the Commission) as to its views of the dispute. The UFU has not sought to engage with ESTA about the broader dispute it now seeks to have decided by the Commission. Further, the UFU indicated it would consent to arbitration on the broader dispute subject to any objection. ESTA have objected to the broadening of the dispute.

[30] For these reasons, I am satisfied that the dispute before me is whether ESTA is acting contrary to the Agreement in offering Fire DP training on the basis that successful DPs are required to work a 4 on/4 off roster.

Jurisdiction

[31] I am satisfied that the requirements of the dispute settlement procedure of the Agreement have been satisfied such that the Commission now has jurisdiction to deal with the dispute.

[32] The dispute was initially raised by Mr Williams at the workplace level. He escalated the dispute through the required internal processes.

[33] Having not received a favourable response, and the status quo having been invoked in accordance with the dispute settlement procedure of the Agreement, ESTA then sought to have the dispute dealt with by the Commission. The dispute was subject to conciliation where it failed to settle.

Interpretation of the Agreement

[34] The principles relevant to interpreting an agreement are well known to the parties and are not repeated here, save to say they are set out in the decision in Australian Manufacturing Workers’ Union v Berri Pty Ltd 2 and the cases cited therein.

[35] I am satisfied that there is ambiguity and uncertainty in the Agreement and in the application of clauses 8.1, 20.3, 20.4 and 27 in relation to the dispute before me.

Evidence, submissions and findings

[36] Evidence was given by Ms Clare Anderson for ESTA. Ms Anderson is the Executive Manager of Operations – Ballarat and Fire Services. She has overarching responsibility for ESTA’s State Emergency Communications Centre at Ballarat and for fire services operations at Ballarat and Tally Ho in Burwood East.

[37] Evidence was given for the UFU by Mr Michael Rennie, a Fire CT working a 4 on/5 off roster; Mr Natthawut Westcott, a Fire CT working a 4 on/5 off roster; Ms Kelsey Fraser, a Fire CT working a 4 on/5 off roster; Mr James Withum an Assistant Team Leader qualified in CT and DP for police and fire services; Mr David Marshall, an Assistant Team Leader qualified in both fire and police CT and DP; and Mr Alex Williams, a Fire CT and DP. Mr James Woodyatt, a Senior Station Officer with the CFA, provided a written statement but was not required for cross-examination. Whilst his evidence has been admitted I would observe that it is of very little value in determining the dispute before me.

[38] There are some non-controversial matters arising from the evidence which I do not intend to traverse unless necessary. There are, however, other matters which require some findings to be made.

Health and safety implications of the 4 on/4 off roster

[39] A number of witnesses for the UFU indicated that the 4 on/4 off roster does not provide enough recovery time for them and/or that the 4 on/5 off roster does provide adequate time to recover.

[40] Whilst I appreciate that the 4 on/5 off roster provides more immediate time off for recovery, none of the evidence before me could be considered expert evidence such that any definitive conclusion could be drawn as to the likely health effects of a 4 on/4 off roster compared to a 4 on/5 off roster. I appreciate that there is a real preference for the 4 on/5 off roster and that employees working that roster have developed life patterns around that roster.

[41] Whilst the views of employees are a relevant consideration, the expressed views as to health effects and/or adequate recovery times are the subjective views of the witnesses only and cannot be accorded more weight than that.

Career paths

[42] I accept the evidence of the Fire CT’s currently working a 4 on/5 off roster that they see promotion to a Fire DP as the career path for them. It is an obvious move should they wish to progress from being a Fire CT.

[43] This is even more so for the current Fire CTs working the 4 on/5 off roster. All are multi-skilled (being skilled in both MFB and CFA, recognised for the purposes of the Agreement for those employed prior to the commencement of the Agreement) and in SES. This makes them a “Call-taker Level 4” – the highest pay point for a CT. Whilst I accept, given the provisions of the Agreement and over-lapping salary ranges, that Fire CTs on Level 4 would move to a Fire DP position with no immediate increase in salary this does not detract from the fact that it is a career path for them.

[44] That CTs currently working a 4 on/5 off roster seek a career path does not, however, dictate that the career path must be or can only be offered on a 4 on/5 off roster basis.

Standard roster

[45] Much time was taken in the hearing of the dispute on the question of what the “standard” roster is for employees who work as Fire CTs or DPs.

[46] For a number of reasons I do not consider that there is a “standard” roster for Fire CTs (or Fire DPs). Firstly, there is no roster specified in the Agreement such that any reliance could be placed on the Agreement to assist in the resolution of what the “standard” roster might be.

[47] Secondly, Fire CTs and DPs who have fire as their primary service work a 4 on/4 off roster, a 4 on/5 off roster or some individual (alternative) roster. Each of the three “types” of rosters is worked on a full-time or part-time basis. The individual rosters are just that, tailored around an individual’s needs following a request and consultation with ESTA management. Any CT or DP who does not have fire as their primary service works a 4 on/4 off roster or an individual arrangement.

[48] Thirdly, in 2016 ESTA management consulted with the affected employees who worked a 4 on/5 off roster in accordance with clauses 27.1.4 and 27.5 of the Agreement to alter the roster of those affected employees to a 4 on/4 off roster. The affected employees voted not to alter the roster they worked.

[49] It should be noted that the process set out in clauses 27.1.4 and 27.5 are not specified to apply to “standard” rosters but rather to “substantial variations to shift rosters, total working hours, total number of working days”. It is not disputed that the change sought by the 2016 consultation would result in a substantial change. Rather, I observe that there is no mention of the need to consult in relation to a change to the “standard” roster.

[50] In the process of undertaking the consultation in 2016 ESTA management issued information to the affected staff. On 17 October 2016 Ms Anderson issued a “Consultation FAQs” in which she said, in response to the question “What’s going to happen to us if we vote no?”:

•  At a minimum, we will increase our local focus on multiskilling police staff into Fire

•  We cannot continue to appoint new staff into roles that we know are on less effective and efficient rosters – in both calltaking and dispatch

•  The [sic] is no appetite or budget for redundancies this financial year – regardless of next steps, there is a job here for everyone

•  There is no plan to shut Ballarat down

•  We will look at bringing additional Fire calltaking staff on to meet out minimums over summer, but we will appoint them on fixed term contracts

•  Given the broader deliverables of the Concept of Operations project in terms of defining facilities and workforce requirements, we can’t predict ways in which we may introduce efficiencies in the future

[51] This response was reiterated to the affected staff on 4 November 2016 with an added note that “five fire calltakers” had been engaged on a fixed term basis commencing shortly thereafter.

[52] In accordance with this advice and following the rejection of the 4 on/4 off roster proposal, ESTA management accepted requests from a number of employees who currently worked a 4 on/5 off roster to voluntarily move to a 4 on/4 off roster. Management also consulted with respect to Fire DP training on a 4 on/4 off roster basis in 2017 and, following that consultation, proceeded with Fire DPs on a 4 on/4 off roster.

[53] Finally, a review of the actual rosters worked by all ESTA employees engaged in Fire CT and DP indicates that there is no “standard” roster. The number of variables including the type of roster worked and whether “fire” is a primary or secondary service and how those on individual rosters might be characterised means that the numbers can be considered in a number of ways to support a variety of positions with no definitive answer being found. In any event, I consider such an exercise futile given the question before me.
[54] These matters, combined, weigh against a finding of the existence of a “standard” roster.

The operational needs of the business

[55] Ms Anderson gave evidence that training as a DP is only offered if it meets the operational needs of the business. That is, DP training is not offered on an ongoing basis but courses are advertised as a foreseeable need to do so emerges.

[56] Ms Anderson says that the current operational need is for Fire DPs working a 4 on/4 off roster and that there is no operational need for Fire DPs working a 4 on/5 off roster.

[57] I accept that it is the operational preference of ESTA to have its employees working a 4 on/4 off roster. I accept that the roster is easier to manage if employees work an even split roster as opposed to a 4 on/5 off roster.

[58] I also accept that ESTA has not taken any action to require a person working a 4 on/5 off roster to alter their roster in their existing role although, obviously, it now seeks to have any person seeking promotion to the Fire DP role to accept that it is subject to working a 4 on/4 off roster.

The clauses in the Agreement

Clause 8.1 of the Agreement

[59] Clause 8 of the Agreement states as follows:

8. Equal Employment Opportunity I Harassment

8.1 ESTA is committed to the principles of Equal Opportunity in employment and its actions in this regard will be governed by the spirit and the intent of the relevant Federal and State legislation. ESTA is also committed to increasing the skill and competency levels of all Employees and to providing equal opportunity for promotion and access to career path progression.

8.2 ESTA will not tolerate discriminatory behaviour, harassment or bullying and appropriate action will be taken if they are found to occur. Comprehensive policies and procedures are in place and will be maintained to address these issues and provide appropriate protection for Employees.

[60] The UFU submits that the second sentence of clause 8.1 (“ESTA is also committed… to providing equal opportunity for promotion and access to career path progression”) places a positive obligation on ESTA to provide access to training on an equal basis. It submits that “equal opportunity” as used in the second sentence is to be given a broader meaning than “Equal Opportunity” as used in the first sentence which is clearly, by its capitalisation, a reference to the legislative requirements. It submits that its interpretation of the second sentence is supported by the use of the phrase “ESTA is also…” which suggests an additional obligation to that contained in the first sentence.

[61] The UFU submits that its interpretation of clause 8.1 is to be preferred to that advanced by ESTA as it gives all of the words some work to do. It further submits that the clause is not just aspirational but creates a positive obligation on ESTA.

[62] On its interpretation the UFU submits that, by only offering Fire DP training to those prepared to work a 4 on /4 off roster, ESTA is not proving equal opportunity to all of those who wish to undertake the training as it is, in effect, denying access to training to those who wish to work a 4 on/5 off roster as a Fire DP. It says that the clause is breached if a condition of access to training is giving up a condition or benefit the employee is otherwise entitled to.

[63] ESTA submits that the term “equal opportunity” as used in the second sentence of clause 8.1 should not be read any more broadly than “Equal Opportunity” as used in the first sentence. In support of its proposition ESTA submits that the clause heading makes it clear that the clause is about the legislative obligations on ESTA and the clause is no more than a statement of commitment to those. ESTA submits that there is no warrant to read the clause more broadly.

[64] In any event, ESTA submits that the Fire DP training subject to this dispute is being offered to anyone who has the necessary skills and qualifications to undertake the training. The offer of training is not restricted or denied to CTs who work a particular roster at the moment but is open to anyone, including CTs with fire as their secondary service. The offer of the training does not alter any existing CTs 4 on/5 off roster as a CT.

[65] I am not convinced that the offering of Fire DP training on the basis of a 4 on/4 off roster is not allowed by virtue of the operation of clause 8.1 of the Agreement.

[66] I accept that, to participate in the training, an employee must be willing to move to a 4 on/4 off roster on successful completion of the training and consolidation but no employee is being forced to undertake the training. It is not a condition of employment that an employee becomes a Fire DP although I do accept that it is the more obvious career path.

[67] I reach this conclusion because of the voluntary nature of the training on offer. A Fire CT working a 4 on/5 off roster applying for any other position in ESTA would need to accept the position on the basis on which it is offered. For example a Fire CT seeking to transfer to Fire CT work at Tally Ho would be required to work a 4 on/4 off roster. Whilst Tally Ho might offer better access to promotion and career paths (I do not state this as a fact) it could not be said that being required to work a 4 on/4 off roster if a Fire CT voluntarily sought to transfer to Tally Ho would be a breach of clause 8.1 of the Agreement.

[68] I do accept that clause 8.1 of the Agreement places a positive obligation on ESTA but I do not accept that this means that an employee can dictate, absent a provision that allows otherwise, the nature of the promotional opportunities offered by ESTA.

Clauses 20.3 and 20.4 of the Agreement

[69] Clause 20 of the Agreement provides as follows:

20. Employee Development

20.1 The skills required and tasks undertaken to provide a 24 hour emergency service are of a specialist nature. The retention and motivation of competent, committed and trained Employees is essential for the viable operation of the service.

20.2 ESTA is committed to the maintenance of comprehensive performance, development and review programs which provide position descriptions for each classification and regular consultation on such issues as performance criteria and measurement and training and development requirements. Employees will be notified in writing of successful completion of training programs and resultant accreditation.

20.3 Employees are entitled to undertake training to qualify or progress towards qualifying for advancement to a higher classification covered by this Agreement, subject to training resource capacity, ESTA's assessment of the Employee's suitability (i.e. their current performance would need to be satisfactory and they would need to meet prescribed entry level requirements) and the Employee's availability. An Employee's temporary unavailability, because of operational or other reasons, will only impact on the timing of the training. Such training will occur in paid time and at ESTA's expense.

20.4 Selection for training will be on an equitable basis, subject to the provisions of sub clause 20.3 above…

[70] The UFU submits that the offering of Fire DP training on the basis that Fire DP must be worked on a 4 on/4 off roster offends clauses 20.3 and 20.4.

[71] The UFU submits that clause 20.3 creates an entitlement for employees to undertake training and to progress only limited by training capacity, suitability and availability. Further, it says clause 20.4 requires that training selection be on an equitable basis, not referable or limited to legislative requirements. It submits that the approach of ESTA to the Fire DP training is not equitable as it imposes conditions on the training.

[72] ESTA submits that clause 20.3 can only operate within the operational needs of the business and that, operationally, ESTA has determined that it does not require Fire DPs working a 4 on/5 off roster but does require Fire DPs working a 4 on/4 off roster. ESTA agrees that the entitlement does exist to undertake training but says this is only to the extent that it is operationally required.

[73] With respect to clause 20.4, ESTA submits that it is a relevant consideration only at the point of selection for training and, at this current point in time, there is no selection process.

[74] I am not convinced that clauses 20.3 or 20.4 operate to prohibit ESTA offering Fire DP training on a 4 on/4 off roster basis. The offer of Fire DP positions on a 4 on/4 off roster does not limit in any way employee access to the training. It does not remove the entitlement to undertake training, all other requirements being met. That the promotional opportunity exists within a specific framework of hours and days of duty does not limit an employee’s entitlement to access the training for such an opportunity.

[75] This is not to seek to down play the impact of the choice confronting Fire CTs working a 4 on/5 off roster but it is not necessarily different to an employee working a non-standard or alternative roster. There are at times choices that might need to be made. Different employees will react in different ways at different times to the choices before them but this does not make the terms of promotion contrary to a provision that provides an entitlement to access to training necessary for that promotion.

[76] Clause 20.4 is an adjunct to clause 20.3 but is referable to the selection for training. My reasoning with respect to clause 20.3 is apposite.

[77] For these reason I do not consider the offer of Fire DP training on the basis that, once successfully completed, the employee will work at 4 on/4 off roster to be contrary to the provisions of clauses 20.3 and 20.4 of the Agreement.

Clause 27.5 of the Agreement

[78] Clause 27 of the Agreement relevantly states:

27. Workplace Reform

27.1 Where ESTA intends to carry out a substantial change in operations, including:

27.1.1…

27.1.4 substantial variations to shift rosters, total working hours, total number of working days…

27.5 The following process will apply for any:

27.5.1 substantial variation to shift rosters, total working hours, total number of working days; and

27.5.2 changes to rest breaks (for the avoidance of doubt this clause does not apply to changes in the timing of rest breaks when unplanned or out of the ordinary operational events necessitate it):

(a) Variation will be by agreement with the majority (50%+1) of Employees affected.

(b) Any proposed variation must give regard to the conditions contained in Clause 12 – Hours of Work and be discussed between the parties, with a view to reaching agreement, prior to being put to a vote.

(c) The process for conducting, returning and counting the ballots shall be agreed between the parties to this Agreement for each ballot…

[79] The UFU submits that in 2016 ESTA commenced a process to introduce change in the 4 on/5 off roster of fire employees and that this change is substantial.

[80] The UFU says that it is clear from the evidence of Ms Anderson that it is the intention of ESTA to move Fire CT and Fire DP employees from a 4 on/5 off roster to a 4 on/4 off roster by a process of attrition (which is not used pejoratively) by effectively grandfathering existing employees and not employing further Fire CT or DP employees on the 4 on/5 off roster. The UFU submits that a change from the 4 on/5 off to 4 on/4 off roster does result in a substantial change in the number of working days of employees and rest breaks. Further, it says that whether this is being done individually (as in the offering of places on courses that then require Fire DPs to work a 4 on/4 off roster) or collectively as was attempted in 2016 does not change the character of the intention of ESTA.

[81] The UFU submits that any intention of ESTA to alter rosters, total hours or number of working days, even if it is being done by a process of attrition, must be subject to the procedures set out in clause 27.5 of the Agreement.

[82] The UFU submits that the provisions of clause 27.5 require ESTA to consult every time it takes some step which relates to the implementation or further implementation of the strategy it has embarked upon since 2016.

[83] The UFU agree that clause 27.5 is only relevant if the dispute before the Commission is one characterised as relating to the strategy that it says has been implemented since 2016, through a process of attrition, to replace the 4 on/5 off roster with a 4 on/4 off roster.

[84] ESTA submits that a consideration of clause 27.5 is only necessary if the broader dispute as articulated by the UFU is accepted by the Commission as the dispute to be determined. ESTA maintain that the dispute before the Commission is no more than the basis on which the 2018 Fire DP training is offered. To the extent that the UFU says the dispute is about the strategy it claims has been adopted by ESTA since 2016, it submits that is not the dispute before the Commission and therefore clause 27.5 is not a relevant consideration.

[85] ESTA importantly seeks to distinguish between a decision made by management to implement some wholesale change in rosters etc. and an option being given to employees to participate in training and move into a Fire DP on a 4 on/4 off roster. ESTA submits that it is not forcing some change on employees in contravention of the provisions of clause 27 of the Agreement.

[86] As to the question of whether the offering of the Fire DP training is a “back door” method of ESTA achieving what it seeks, that is, a move of Fire DPs to a 4 on/4 off roster, ESTA submits that this will not be known until such time as the employees apply for and are accepted onto the training course. It could be, it submits, that all CT staff who apply for and/or are accepted into the training already work a 4 on/4 off roster in which case the existing balance between staff on the 4 on/4 off and 4 on/5 off roster will not change.

[87] I have characterised the dispute above as being in relation to the basis on which ESTA have offered Fire DP training in 2018. I do not repeat the reasons for having reached that conclusion here, they are adequately outlined above.

[88] In those circumstances I do not consider that clause 27.5 of the Agreement impedes the offer of training for Fire DP as offered by ESTA. In reaching this conclusion I have taken into account that I do not consider there to be a “standard” roster for Fire CT and Fire DP employees such that any change can be identified to that which is “standard” and that the positions on offer are what ESTA has determined operationally it requires to have filled.

Conclusion

[89] In reaching my conclusion I have taken into account all of those matters set out above. I have also taken into account that the Fire DP training is open to all employees who otherwise meet the criteria and are selected for the training. It is not apparent that there is any impediment to any CT applying for or being accepted for training as a Fire DP because of the position they occupy or the roster they work.

[90] I am aware of the implications of this decision for Fire CTs who work a 4 on/5 off roster who do not wish to work a 4 on/4 off roster.

[91] For all of the reasons set out above I therefore determine that the offering of Fire DP training on a 4 on/4 off roster as detailed in the advice to staff on 19 February 2018 is not contrary to the provisions of the Agreement.

COMMISSIONER

Appearances:

B. Avalone,of counsel, for Emergency Services Telecommunications Authority T/A ESTA 000.

E. White and J. McKenna, of counsel, for United Firefighters’ Union of Australia.

Hearing details:

2018.

Melbourne:

July 17, 18 19.

<PR609254>

 1   AE418496.

 2 (2017) 268 IR 285.

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