Rainer Kiessling v Fire Rescue Victoria T/A FRV
[2023] FWC 2557
•13 OCTOBER 2023
| [2023] FWC 2557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Rainer Kiessling
v
Fire Rescue Victoria T/A FRV
(C2023/3219)
| COMMISSIONER BISSETT | MELBOURNE, 13 OCTOBER 2023 |
Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020
On 6 June 2023 Mr Rainer Kiessling (Applicant) made an application to the Commission under s.739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute pursuant to the dispute settling procedure of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (the Agreement). The Applicant is employed by Fire Rescue Victoria (FRV or the Respondent) as a Commander in regional Victoria seconded to the Country Fire Authority (CFA).
The Applicant commenced employment with FRV through a lateral entry process as provided for at clause 48 of the Agreement. The Applicant’s letter of employment says, in part that ‘in accepting this offer of employment, you agree to remain in the nominated position for an initial period of 3 years, commencing 26th April 2022’. The letter also specifies that the terms and conditions of the Applicant’s employment are set out in Division B of the Agreement and in applicable legislation. The letter clarifies that, in the event that the letter of employment is inconsistent with Division B of the Agreement, the terms and conditions in Division B apply, to the extent of any inconsistency.
The dispute relates to the operation of a number of clauses of the Agreement in circumstances where the Applicant accepted the letter of employment from FRV.
The application was subject to number of conferences where some matters were resolved but not those subject to the notification to the Commission. Following further consultation with the parties the questions the Applicant sought to have answered in arbitration were agreed. While FRV initially raised a jurisdictional objection to the arbitration proceedings (that the Applicant had not complied with the dispute settling procedure) this was withdrawn.
The Applicant represented himself and Mr Carrick from the Victorian Government Solicitor’s Office (VGSO) represented FRV pursuant to permission being granted.
A court book was prepared by my chambers and provided to the parties prior to the hearing. Relevant documents are referred to by reference to that court book.
By way of relevant background, the Applicant was appointed to a position of commander in District 5 (District 5 or Hamilton), a ‘hard to fill’ position. The Assistant Chief Fire Officer (ACFO) for District 5 was, at that time, ACFO Bourke and was the Applicant’s supervisor. In October 2022 the Applicant raised issues in relation to ‘act up’ (higher duties) opportunities with ACFO Bourke. Following on from that meeting and an escalation of matters (both hierarchically and in intensity) mediation occurred between the Applicant and ACFO Bourke.
As an outcome of the mediation, the mediator recommended that the Applicant be transferred. FRV accepted the recommendation and determined to transfer the Applicant to District 4 (District 4 or Casterton). Ultimately the Applicant’s consent to a permanent transfer to Casterton was sought but he refused. The Applicant did transfer to Casterton for a period of time but returned to Hamilton (ACFO Bourke being elsewhere).
REQUEST TO RE-OPEN
The application was heard by me on 20 September 2023. At the conclusion of the hearing I reserved my decision.
On 20 September 2023 at 6.21 pm (after I had reserved my decision) my chambers received correspondence from the Secretary of the United Firefighters' Union (UFU). That letter read:
I am informed that this matter was the subject of an arbitration hearing today before Bisset C. (sic)
I note that no formal notification was received by the UFU of this matter.
It is the UFU’s submission that, consistent with the judgement of the Full Bench in United Firefighters' Union of Australia v Mr Gavin Wright; Country Fire Authority[2020] FWCFB 3315 the UFU has “an unfettered right to participate in proceedings before the Commission” arising under the dispute resolution clause of the enterprise agreement.
The UFU wants to make submissions to the Commission in this proceeding and formally makes application to do so. We respectfully request that the Commission take no further steps to determine this proceeding until it has heard the submissions of the UFU.
Subsequently, I listed the UFU’s application for hearing on 25 September 2023. I issued directions to the UFU that, at that hearing, it was required to make submissions firstly as to why the Commission should re-open the matter given the decision was reserved and second, in relation to the substantive matter (in the event that I did re-open the matter). To assist the UFU it was provided with the Directions issued in relation to the hearing of the dispute, a copy of the court book and a further document tabled during the hearing.
In support of its application and in relation to the merits of the dispute the UFU filed a witness statement of Mr Jeremy Murphy, Industrial Officer with the UFU[1] and written submissions.
The usual grounds for an application to re-open a matter are that there is fresh, highly relevant evidence, there has been an inadvertent error, there has been a mistaken apprehension of the facts, or that there has been a mistaken apprehension of the law.[2]
In its submissions the UFU said that the circumstances by which it now came before the Commission were unusual in that there had been a failure in communication with the UFU (not attributable to the Commission) and, had the UFU been aware that the matter was proceeding, it would have appeared at the hearing to put its submissions at that time.
The UFU had been involved in earlier attempts to resolve the dispute (prior to notification to the Commission). After advising the Applicant that he should discontinue his application, and as it was not advised that the matter was nevertheless proceeding, the UFU ‘reasonably concluded’ that it was not proceeding. The UFU continued:
In circumstances where the UFU was entitled to be heard on the matter, but was deprived of that opportunity because it was not notified, leads to an nfair reslt. Consequently the Commission should with respect permit the matter to be reopend to hear from the UFU.[3] (sic)
Mr Murphy’s evidence is that the UFU then became aware that the matter had proceeded to conciliation in the Commission but again assumed the dispute would proceed no further than a conference.
The UFU argued that the application should be re-opened as there was no prejudice to either the Applicant or FRV in the Commission hearing from the UFU and it would not create a delay in the matter. Further, the UFU submits that, in two respects, it has new evidence in relation to two matters that are before the Commission.[4] The UFU did not otherwise address me on the factors (outlined above) relevant to its request that the Commission re-open the matter.
I would observe that the ‘new’ evidence in relation to the recognition of competencies[5] is already before the Commission. The evidence in relation to EMR training, while new, is information within the knowledge of FRV and it is unclear why it did not disclose this information at the hearing of the application.
The UFU clearly has a right to be heard in any dispute arising under the Agreement. This much is clear as enunciated by the Full Bench in Wright. However, with that right comes a responsibility on the UFU to maintain awareness of any matter in which it may have an interest being listed in the Commission. In this case the dispute was publicly listed in the Commission on three occasions.[6]
I have however decided to hear from the UFU as to the merits of the application of the Applicant. I reached this decision because the UFU does have fresh evidence not otherwise disclosed by FRV, re-opening the matter will not create any undue delay in deciding the matter and re-opening the matter is otherwise not prejudicial to the parties.
The UFU should not take this as a general right to have a case re-opened whenever it chooses. Its right to be heard is during the dispute resolution stage. Once a matter has been reserved that stage is complete. From that stage all that is left is for a decision to be delivered.
Following the hearing I granted FRV (on their request) a two day period in which it could file any written submissions in reply to that of the UFU.
THE MATTERS IN DISPUTE
On 28 July 2023, following consultation with the Applicant and FRV, I issued Directions in relation to evidence and submissions on the matters in dispute. The Directions set out the five questions that were referred for arbitration. Those questions are:
1. Under the dispute procedure, and in particular by virtue of clause 26.4 of the Agreement, is the Applicant entitled to be paid the temporary transfer allowance for that period he was working in District 4 (Casterton)?
2. Is FRV required to recognise the Applicant’s competencies pursuant to clause 48.7.2 of the Agreement and, if so, what is required under the Agreement to enable this to occur?
3. Does the Agreement, read in conjunction with the conditions of the lateral entry contract, prohibit the Applicant from applying for act up (higher duties) vacancies within the State? If not, is FRV required to confirm this right in writing to the Applicant?
4. Is the Applicant eligible to receive the EMR allowance in accordance with clauses 142.3, 146.12, 153.2 and Schedule 4?
5. Does clause 158 or any other provision of the Agreement prohibit FRV transferring the Applicant without his agreement?
JURISDICTION
The dispute settling procedure is found at clause 26 of the Agreement. The dispute settling procedure applies to all matters arising under ‘this Division’ of the Agreement, to all matters pertaining to the employment relationship, to matters pertaining to the relationship between the UFU and FRV and to the NES.
The dispute settling procedure contains a five-step process, each step of which must be complied with prior to moving to the next step. This is to be discerned from the phrase ‘if not settled at the [previous step], the matter shall…’.
The steps are as follows:
26.2.1 Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.
26.2.2 Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.
26.2.3 Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated industrial Representative of the employer for consultation.
26.2.4 Steps 1 – 3 must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible. Where in the circumstances, it is not practical for the dispute to be submitted to a position named within these steps, then the dispute will be submitted to an employer representative at the same level.
26.2.5 Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Workplace Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Workplace Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
26.2.6 Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWC. FWC may utilise all its powers in conciliation and arbitration to settle the dispute.
In this case the Applicant notified the dispute to the Commission. Step 5 of the dispute settling procedure suggests such a notification can only be made by the UFU or FRV. Neither the UFU nor FRV suggest that I am barred by the wording of clause 26.2.6 from dealing with an application in relation to a dispute notified by an individual who has otherwise complied with the dispute settling procedure. I am satisfied that the application is properly before me and that the requirements of the dispute settling procedure have been complied with.
Further, I am satisfied that each of the matters before the Commission for resolution arise pursuant to the Agreement and/or the employment relationship between the Applicant and FRV.
I am therefore satisfied that the Commission has jurisdiction to hear and determine the matters in dispute.
EVIDENCE, SUBMISSIONS AND CONSIDERATION
Question 1Under the dispute procedure, and in particular by virtue of clause 26.4 of the Agreement, is the Applicant entitled to be paid the temporary transfer allowance for that period he was working in District 4 (Casterton)?
The Applicant was based in Hamilton and initially lived there in rented accommodation with his family. Following mediation with his supervisor, and on the recommendation of the mediator, the Applicant was transferred to Casterton. During the period he was working in Casterton the family was required to vacate their accommodation in Hamilton and needed to find new accommodation. In so doing the Applicant moved his family to Ballarat as there was no suitable accommodation available in Hamilton, Casterton or surrounding areas. While Casterton is not a great distance from Hamilton it is much further away from Ballarat.
The Applicant submits that, when working in Casterton, he was on a temporary transfer from Hamilton and subject to the provisions of clause 155 and schedule 4 of the Agreement. He was not permanently transferred to Casterton and has rejected a permanent transfer on six separate occasions.
The Applicant also submits that he remains in dispute with FRV pursuant to clause 26 (the dispute settling procedure) of the Agreement. Clause 26.4 provides that the ‘status quo must apply’ in relation to the ‘existing situation or practice that applied immediately prior to the subject matter of the grievance or dispute occurring.’ The Applicant says he cannot be permanently transferred to Casterton without his agreement and hence could only have been temporarily transferred. On the question of the nature of the transfer he remains in dispute. Therefore the Applicant says he remains entitled to the provisions of clause 155 and schedule 4.
To the extent that FRV says that the Applicant’s relocation to Ballarat (from Hamilton) – that resulted in expenses under the Accommodation Agreement – was voluntary, the Applicant says that is not a relevant consideration and that his choice of where to live is for him to make.
The Applicant submits that his expenses were approved by an Authorised Officer. In an email of 24 November 2022 Deputy Commissioner Bruce emailed the Applicant (upon the Applicant indicating he would accept ‘a transfer to District 4 until these matters are resolved’[7]) and said that ‘[a]ward conditions will apply while you are working in District 4’.[8]
FRV submits that the Applicant is not entitled to any allowance as the expenses incurred by the Applicant’s appointment to Casterton were caused by his decision to relocate his family to Ballarat.
FRV submits that the Applicant’s claim for accommodation and meals while based in Casterton should be rejected because:
· The Applicant nominated District 5 as his preference on joining FRV.
· Casterton is approximately 54 kilometres from Hamilton where the Applicant was renting accommodation for his family and is an easy commute from Hamilton.
· FRV proposed a transfer to Casterton following the mediation as it was the Applicant’s second choice when applying to enter FRV and it was close to Hamilton where the Applicant was residing with his family.
· FRV did not require or force the Applicant to relocate his family to Casterton.
· The Applicant could have remained residing in Hamilton while working in Casterton with minimal inconvenience. The minimal distance between them would not have prevented the Applicant fulfilling his responsibilities in Casterton.
· It was the Applicant’s decision to relocate his family to Ballarat.
Further, FRV submits that:
· Reimbursements are limited to ‘reasonable’ out of pocket expenses and, in circumstances were the Applicant decided to move his family almost three hours away from his workplace, the expenses are not reasonable.
· The intention of the Accommodation Agreement is to cater for legitimate additional costs where an employee is required to move for a temporary transfer. It is not a licence for an employee to choose to move hundreds of kilometres from their normal and temporary places of work.
· The deeming of an expense as ‘necessary’ under the Accommodation Agreement is predicated on the requirement that such expenses “would not have been incurred in the ordinary circumstances of travel to and from the employee’s home and normal duty location”.
· The Applicant did not obtain prior approval before incurring the claimed expenses.
· No Authorised Officer (as defined) ensured or determined the expenses were necessary or reasonable in the circumstances.
The UFU submits that, prima facie, as the Applicant did return to his substantive location (of Hamilton) following the transfer to Casterton, and given that FRV did not have the right to permanently transfer the Applicant, the transfer was, by definition, temporary. Therefore the Applicant is entitled to the relevant transfer allowances.
Consideration
Clause 155 of the Agreement states:
155. TEMPORARY TRANSFER
Any employee covered by this Division who agrees to be temporarily transferred shall be paid such salary and terms and conditions of employment in accordance with this Division. In all cases the employees normal work location shall be deemed not to have changed.
Both parties agree that the allowances relevant to a temporary transfer are found in Schedule 4 - Personal Expenses and Accommodation Agreement to the Agreement (the Accommodation Agreement). The relevant clauses in the Accommodation Agreement are:
2. GENERAL PRINCIPLES
2.1 This Expenses and Accommodation Agreement sets out the procedures relating to accommodation and personal expenses and for employees covered under the terms of the Fire Fighting Industry Award and Division B of the Agreement, when required to work away from their normal work location as authorised by Fire Rescue Victoria.
2.2 Fire Rescue Victoria will reimburse an employee for actual and reasonable out of pocket expenses incurred by the employee in the course of his or her authorised Duties.
2.3 An expense will be deemed necessary if it was incurred in the course of an employee's authorised duties and would not have been incurred in the ordinary circumstances of travel to and from the employee's home and normal duty location.
2.4 Wherever practical, employees are required to obtain approval before incurring travel, personal and out of pocket expenses.
2.5 The Authorised Officer must ensure all expenses were required and reasonable in the circumstances.
The Applicant relocated his family to Ballarat in early April 2023.[9]
It is not disputed that Deputy Commissioner Bruce is an Authorised Officer for the purposes of clause 2.5 of the Accommodation Agreement.
I do not consider that the email from Deputy Commissioner Bruce[10] provides the Applicant with ‘approval’ for the expenses that he has incurred and claimed in relation to his temporary relocation to Casterton. The email from the Deputy Commissioner does no more than state that the Applicant will be entitled to the [Agreement] conditions that apply to a temporary transfer. The Agreement conditions to which the Applicant claims he is entitled have several requirements. These are that the expenses are ‘reasonable out of pocket expenses’ (clause 2.2); that the expenses ‘would not have been incurred in the ordinary circumstances of travel to and from’ the Applicant’s home (clause 2.3) and that, if practical, ‘approval’ was sought prior to incurring the expenses (clause 2.4). While the email of the Deputy Commissioner appears on its face to approve the allowances payable I consider that all he did was confirm that, where the requirements are met, the Applicant could access the allowances.
The UFU, when asked as to the application of these requirements, provided little assistance.
On the evidence before me it is not possible to conclude that the expenses incurred by the Applicant were not ‘reasonable’ in the circumstances. FRV’s assertions as to the availability of suitable accommodation in Hamilton, Casterton or surrounding areas are just that – assertions with no evidentiary base. The most contemporaneous record of the Applicant’s circumstances are contained in an email from the Applicant to ACFO John Jugum.[11] The Applicant’s residential tenancy in Hamilton ended and his family needs could best be met in Ballarat. The Applicant did not need the approval of FRV to relocate his family but, in any event, the Applicant did advise FRV of the relocation.
While it might be arguable that it was not impractical for the Applicant to obtain approval prior to incurring the temporary transfer expenses, this transfer was not one that occurred within the ordinary course of events as they would generally unfold. In this case a substantial amount of correspondence between the Applicant and FRV was exchanged in relation to FRV’s attempts to permanently transfer the Applicant to Casterton in circumstances where he did not wish to transfer on a permanent basis.[12] The issue of whether FRV could permanently transfer the Applicant then became a formal dispute between the parties, but it appears that FRV gave little thought to any accommodation requirements of the Applicant whilst that matter was being resolved or on having been advised that he had relocated his family to Ballarat. The Applicant did advise ACFO Jugum of the need to relocate his family to Ballarat (and the reasons) and that he would have to incur the relevant costs of, and hence make a claim for, the Accommodation Allowance. It is not apparent if ACFO Jugum is an ‘Authorised Officer’ for the purposes of approving the allowance or if he replied to this email. It may be that, having advised ACFO Jugum that the costs would be incurred and not having been advised otherwise, the Applicant assumed there was no barrier to claiming the allowances.
I acknowledge that the Applicant did not unequivocally seek prior approval for his accommodation expenses. However, where the Applicant understood he had approval from the Deputy Commissioner, where the basis of the move to Casterton has been in dispute since it occurred and where he notified his ACFO of the expenses he would incur, I do not consider it was otherwise practical (or reasonable) for the Applicant to further seek some other approval in relation to his expenses.
As the Applicant claims no more than accommodation and meals in relation to the transfer it would appear that such expenses were reasonable.
I am therefore satisfied, taking into account the particular circumstances of this case, that the Applicant is entitled to receive the expenses claimed by him in relation to the temporary transfer for the period he was living in Ballarat and travelling to Casterton. This entitlement does not arise under the dispute settling procedure but rather by virtue of the entitlement under clauses 155 and Schedule 4 to the Agreement.
Question 2Is FRV required to recognise the Applicant’s competencies pursuant to clause 48.7.2 of the Agreement and, if so, what is required under the Agreement to enable this to occur?
The Applicant submits that clause 48.7 of the Agreement requires FRV to undertake a recognition of prior learning (RPL) process in relation to the competencies of lateral entry employees. He submits that despite ‘numerous indications’ that it would do so, FRV has failed to conduct the RPL process.
The Applicant submits that the RPL process is an essential part of onboarding for lateral entry employees to capture current competencies and ensure lateral entry commanders have the requisite skills and qualifications necessary to do their job.
Further, the Applicant submits that some of the qualifications and competencies that need to be subject to RPL before they are formally recognised are directly related to allowances that he would otherwise be entitled to under the Agreement.
The Applicant says that he provided his basic training record as requested to FRV Promotions in November 2021. On 10 May 2022 he was advised (along with other lateral entrants) that ACFO Christian Thorley would conduct an RPL process but this has not yet occurred.
The Applicant acknowledges the evidence given in these proceedings that a draft policy in relation to an RPL process, as it applies to lateral entry employees, is pending approval. He says that if this policy is approved and implemented within a reasonable timeframe that would resolve this matter.
FRV called evidence from ACFO Thorley. His evidence was to the effect that the policy referred to by the Applicant is, in his understanding, due to go the Consultative Committee for final sign off in the next four to eight weeks (noting that the Consultative Committee process is not a matter within his control).
The UFU submits that clause 48.7.2 requires that there be a process by which competencies are recognised and that this process needs to be determined through the clause 21 consultative committee. This process is currently underway and it is hoped that process will be finalised in the near future.
Consideration
Given the view expressed by the Applicant and the evidence of ACFO Thorley I am satisfied that, as long as the approval process is not unduly delayed, this issue is resolved.
In reaching this conclusion I would observe that the grammar in clause 48.7 of the Agreement requires attention. If it is subject to dispute in its current form a great deal of interpretation as to its meaning would be required. I would also observe that the clause fails to provide any timeline for the recognition of competencies, stripping it of effect.
Clauses 48.6 and 48.7 of the Agreement relate to the filling of ‘career firefighter’ vacant position through lateral entry – that is by recruitment at above entry level. This is how the Applicant (and other commanders in the ‘lateral entry cohort’ occupying difficult to fill positions) came to join FRV in 2022. Clauses 48.6.1 to 48.6.3 set out the requirements to be fulfilled prior to a consideration of lateral entry. Clause 48.7 of the Agreement goes to the recognition of competencies and, reading through the very poor drafting, provides that a lateral entrant will have [their] competencies recognised by FRV for all purposes and that such recognition will be subject to consultation through the consultation process set out in clause 21.
Employees at the rank of commander need to complete an Advanced Diploma of Firefighting Management. FRV is the only registered training organisation that delivers the full qualification.
I accept the evidence of ACFO Thorley that those commanders who have joined FRV via the lateral entry process need to enrol in the Advanced Diploma, be credited with completed relevant qualifications and competencies that align with the Advanced Diploma, have the gap between these qualifications and competencies determined and then be assessed through the RPL process in relation to their non-aligned competencies. This process will then reveal what, if any, training is required for lateral entrants to enable them to complete the requirements for the Advanced Diploma qualification.
I also accept the evidence of ACFO Thorley as to matters that have created barriers to this process being finalised and that the process to be used is due to return to the consultative committee for finalisation in the near future.
It is clear from clause 48.7.2 that the Applicant is entitled to have his competencies recognised and that FRV is obliged to facilitate this. In this respect that answer to the question is clear.
The Applicant commenced his employment with FRV in April 2022. Some 18 months later the process by which his competencies can be recognised is not yet finalised. I note however that this is imminent.
The Applicant accepts that the process has now substantially advanced and has welcomed this.
In the circumstances where it is anticipated the process for recognition will be finalised within the coming weeks and where it appears that there is recognition by FRV of the need to finalise that process there is little more to be said except that, having finalised a process, FRV should take all necessary steps to then implement that process without delay.
Question 3Does the Agreement, read in conjunction with the conditions of the lateral entry contract, prohibit the Applicant from applying for act up (higher duties) vacancies within the State? If not, is FRV required to confirm this right in writing to the Applicant?
The Applicant submits that at no stage during the lateral entry recruitment process was he advised that he would be denied career advancement opportunities. He says that he specifically asked a question about this in the information sessions and was not advised of any restriction being placed on employees acting up or seeking promotion in circumstances such as his. While acknowledging that his letter of offer specifies that he is ‘accepting a Commander position for three years’ the Applicant submits that it does not say that he would not be able to act up or seek promotion during this period.
The Applicant says that he was advised by ACFO Bourke on 4 October 2022 that the ACFO would not provide access to any district based act up opportunities within District 5 and would not support him acting up elsewhere.
The Applicant submits that FRV did not impose any restrictions on acting up in the letter of employment and did not impose such a restriction until 4 October 2022. That the restriction is now imposed on the lateral entry commanders is inconsistent with the letter of employment and the conditions afforded to the rest of the workforce.
FRV submits that the Agreement, read in conjunction with the letter of employment does not ‘expressly or implicitly entitle the Applicant to apply for act up (higher duties) vacancies, either within or outside his District.’
The UFU submits that ‘the Applicant would normally have the right to apply for higher duties. However, this is subject to the operational requirements in particular the requirement to meet safe staffing requirements in his substantive role.’[13]
Consideration
The evidence before me does not support a conclusion that the Applicant is barred, by virtue of the terms of the Agreement or his letter of employment, from seeking to apply for higher duties either within or outside District 4. Further, there is nothing to stop the Applicant applying for promotion.
I do not have any applicable policy or guidelines related to the operation of applying for higher duties. However, it seems to not be in dispute that, prior to applying for higher duties an FRV employee is required to be granted approval for such an application by their supervisor.
It would appear however that the Applicant has agreed, by virtue of his letter of employment, to remain at Hamilton for a period of three years. I say no more on whether there is some conflict between the letter of employment and the Agreement as neither the Applicant, FRV nor the UFU provided substantial arguments on this question.
I am not satisfied, on the basis of the material before me, that the Applicant is prohibited by anything in the Agreement or the letter of employment from applying for act up (higher duties) opportunities within the State.
There is, however, no obligation on FRV to advise the Applicant of this in writing.
Question 4Is the Applicant entitled to receive the EMR allowance in accordance with clauses 142.3, 146.12 and Schedule 4?
The Applicant submits that clause 142.3 of the Agreement specifies that an allowance of $2.30 per hour is available when an employee is available to be rostered for Emergency Medical Response (EMR) duties. By clause 153.2 of the Agreement the Applicant is entitled to receive the EMR allowance.
In May 2022 the Applicant wrote to the Acting Commander and sought the EMR allowance. He was advised that a backlog of training meant that the Applicant (and others in his situation) would have to wait for the necessary training.
After some further delays the Applicant wrote to the Acting Deputy Commissioner in February 2023, again seeking approval of the EMR allowance. In rejecting the Applicant’s request, the Acting Deputy Commission advised in writing that:
I have had our industrial relations team look at this matter given that the clauses in the agreement are from some time back and were relevant to the introduction of EMR into the then CFA.
The advice I have got is that clause 146 which specifically refers to introduction of EMR trial into CFA some time ago and as this trial has been completed and EMR now fully implemented, the clause is considered to be no longer relevant.
This means we need to refer to the conditions within clause 142 which limits the payment of the EMR allowance to a person who;
·Is required by FRV to respond operationally to Priority O case;
·Is available to be rostered to respond to such cases;
·Is directed by FRV to perform EMR
As Commanders who are seconded to CFA do not meet this criteria, the payment of the EMR allowance to those without the specific training (to the required FRV skills and competencies) will not occur.
FRV is committed to providing the opportunity for all staff to gain the skills regardless of if they are actively involved in delivering the EMR program and as such there will still remain an opportunity to undertake such training and subsequently receive the allowance in line with other Commanders working within CFA. Access to this training is limited as you have experienced as it is targeted at the Firefighters who are providing the service to the community on a daily basis however, when there is capacity to undertake further training, you are encouraged to apply for the course.[14]
[underlining added]
FRV submits that clauses 142.3, 146.12 and 153.2 of the Agreement must be read in context. The EMR training specified is provided to ‘operational firefighters’ who attend accident scenes and other emergencies involving a ‘limited subset of Priority O cases’ as defined in the Agreement. The training delivers a specialist qualification.
FRV submits that the Applicant has not undertaken the training and hence is not eligible for the allowance. Further, FRV says the Applicant, as a Commander, will not be required to undertake the training as ‘Commanders in his position are not required to perform EMR.’ FRV says that the CFA is not a responder service to EMR calls and the Applicant therefore is not, and cannot, be rostered for EMR.
The FRV did agree that
…there are some commanders who historically hold that EMR qualification, who have undertaken effectively that course some time ago, who continue to receive an EMR allowance, even in circumstances where potentially they are not required to apply that skillset.[15]
FRV said that these commanders are being paid the allowance ‘for historical reasons’ and that they will continue to receive the allowance even though, like the Applicant, they would not be required to answer an EMR call. This is because FRV doesn’t ‘take stuff away once people have got it’[16] although there are some exceptions to this.
In any event FRV says that clauses 142.3 and 146.12 ‘must be read from a practical and not theoretical perspective’. As the Applicant cannot be called upon to respond to an EMR call he cannot be eligible for the allowance.
The UFU submits that a qualification allowance can only be payable when the qualification is held. This, it says, ‘means it does apply to commanders where they have gone through the ranks and obtained and maintained an EMR qualification from their recruits course onward and subsequently maintained it.’[17]
As to the Applicant’s claim, the UFU submits that the Applicant is not able to be ‘available’ to perform EMR duties as he is not qualified to perform such duties as he has not received the necessary training.
The UFU submits that clause 146.12.1 needs to be understood in context. The clause came about as part of a trial of the operation of emergency medical services (EMS) and the EMR allowance and, to the extent that trial is complete, clause 146.12.1 needs to be understood in that context.
In any event, and separate to this dispute the UFU says that it has reached an agreement with FRV that lateral entry commanders (including the Applicant) be provided with EMR training by end of March 2024 and they would then become eligible for the EMR allowance. FRV did not dispute this apparent change in position although, in its written submissions, remained silent on the matter.
Consideration
Clause 153 of the Agreement deals with allowances/higher duties/reimbursements although a review of the contents of the clause indicates that it deals with ‘reimbursement of expenses’ as they apply to the Fire Rescue Commissioner and Deputy Fire Rescue Commissioner where these exceed entitlements in the Division of the Agreement, telephone and internet costs reimbursement and the EMR allowance only.
Clause 153.2 is specific to the EMR allowance. It says:
153.2 All employees under this section will receive the allowance specified in clause 142.3 and Schedule 4.
Clause 142 relates to EMR and clause 142.3 of the Agreement relevantly provides:
142.3 Every employee covered by this Division will be paid an amount of $2.30 per hour worked when available to be rostered for EMR duties. The allowance will also be paid for any and all periods where an employee is on leave or absent from the workplace. At an employee’s election, this allowance shall be reduced to $0.95 per hour and will become an all-purpose allowance and will form part of the employee’s base wages/salary for the purpose of calculating superannuation contributions. The amount shall be incorporated in addition to the amounts set out at clause 144 (added to the amounts).
It is clear from clause 142.3 that, to be eligible to receive the EMR allowance an employee must be available to be rostered for EMR duties.
Clause 146 of the Agreement is in relation to allowances. Clause 146.12 is specific to an EMR First Responder and provides, at clause 146.12.1:
146.12.1 Employees who both elect to make themselves available to undertake First Responder – EMS Training and also to perform First Responder – EMS duties (on completion of such training) whenever required, will be paid an allowance in accordance with Schedule 4 Allowances for each and all hours worked.
Clause 146.12.1 suggests a variation on clause 142.3 as it indicates that an employee who elects to make themselves available for First Responder – EMS training and, on completion of the training, EMS duties, is entitled to the EMR allowance. That is, clause 146.12.1 appears to broaden the eligibility for the allowance not just to those available to undertake the duties but to those who elect to participate in training for such duties prior to being available to undertake the duties.
However, clause 146.12.1 must be read in the context of the remainder of clause 146.12. Although apparently contradictory to clause 146.12.1, clause 146.12.3 provides that only those who have completed the training and are required by FRV to participate in a trial of First Responder – EMS will receive the allowance and it will only be at the completion of the trial that all employees who made the election will be eligible for the allowance. Read as a whole, clause 146.12 strongly suggests that eligibility for payment of the allowance under that clause related to elections made for EMS training and duties in relation to a trial occurring in relation to the EMR First Responder. This view of clause 146.12.1 coincides with the advice in the correspondence from the Acting Deputy Commissioner. If it is the case that clause 146.12.1 was only relevant to the trial (and it would appear so) its application could be made less opaque or, if it is no longer of relevance, be removed from the next agreement.
When clause 146 is seen as described above, clause 142 appears to relate to payment of the allowance of $2.30 per hour in light of the full operation of EMR (that is, not in a trial phase). I would observe however that the language (EMS and EMR and no mention of the limited scope of clause 146.12.1) does little to clarify the relationship between clauses 142 and 146.12.
It would appear that, until training is complete, the Applicant is not able to be available to undertake EMR duties and hence is not eligible for the EMR allowance.
To the extent that FRV suggests that an employee at commander level is not and cannot be available to be rostered for such duty, I observe that there is nothing in the Agreement that suggests that is the case. If it is the case, there are commanders in receipt of the allowance even though they cannot make themselves available for such work. If it is suggested that only the Applicant and other lateral entry commanders are the subset of commanders who cannot be available to be rostered for such duty, and should be denied training, the Agreement does not state this.
It would appear that there are contradictory approaches to this allowance between FRV and the UFU. FRV says the allowance is payable only on availability to undertake the duties while the UFU suggests that the allowance is payable if the training is completed, regardless of availability. These circumstances are not the same.
I note that an agreement has been reached between FRV and the UFU to provide training for lateral entry commanders prior to the end of March 2024. The Applicant, as a lateral entry commander, should have access to this training.
Any failure to provide the training as has been advised to the Commission may result in a further dispute in relation to this provision.
To the extent that the training is made available, the Applicant will then be eligible for the allowance as there is no other provision in the Agreement that presents a barrier to commanders receiving the allowance. Having received the training the Applicant will be entitled to, and should receive, the allowance if he makes himself available for EMR duties.
Question 5Does clause 158 or any other provision of the Agreement prohibit FRV transferring the Applicant without his agreement?
The Applicant, FRV and the UFU are in agreement that FRV cannot permanently transfer an employee covered by Part C of the Agreement without the employee’s agreement. Clause 158 of the Agreement states:
An employee covered by part C of this Division will not be transferred to permanently work at another location within a district or external to a district without the agreement of the employee.
There is nothing ambiguous about this clause and, in these circumstances, it is astounding that FRV attempted to permanently transfer the Applicant to Casterton without his agreement.
CONCLUSION
In summary, the questions the Commission was asked to resolve, taking into account concessions and agreements reached during the hearing (as set out above), are answered as follows:
Under the dispute procedure, and in particular by virtue of clause 26.4 of the Agreement, is the Applicant entitled to be paid the temporary transfer allowance for that period he was working in District 4 (Casterton)?
Answer: yes, although not by virtue of the operation of the dispute settlement procedure.
Is FRV required to recognise the Applicant’s competencies pursuant to clause 48.7.2 of the Agreement and, if so, what is required under the Agreement to enable this to occur?
Answer: yes. In addition it is noted that a process for that recognition is currently being finalised in accordance with clause 21 of the Agreement.
Does the Agreement, read in conjunction with the conditions of the lateral entry contract, prohibit the Applicant from applying for act up (higher duties) vacancies within the State? If not, is FRV required to confirm this right in writing to the Applicant?
Answer: no. There is nothing in the Agreement to prohibit the Applicant from applying to act up. There is no requirement on FRV to confirm this in writing to the Applicant.
Is the Applicant eligible to receive the EMR allowance in accordance with clauses 142.3, 146.12, 153.2 and Schedule 4?
Answer: no. The Applicant will be eligible for the allowance when training is completed (to be delivered by end of March 2024) and he makes himself available for EMR duties.
Does clause 158 or any other provision of the Agreement prohibit FRV transferring the Applicant without his Agreement?
Answer: yes.
COMMISSIONER
Appearances:
R Kiessling on his own behalf
M Carrick of the Victorian Government Solicitor’s Office for the Respondent with N Koletsis of FRV
D Langmead of counsel for the UFU with J Murphy of the UFU
Hearing details:
2023.
Melbourne:
September 20, 25.
Final written submissions:
Respondent, 27 September 2023
[1] Exhibit UFU 1
[2] Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]
[3] Submissions of the UFU [6]
[4] See the Witness Statement of Jeremy Murphy (Exhibit UFU 1), [22] – [23]
[5] Exhibit UFU 1, [22]
[6] The matter was listed for an initial conference on 22 June 2023, was listed again for Mention/Directions on 28 July 2023 and was listed for hearing on 20 September 2023. The names of the parties and the date, time and method of the listed events (although not whether it was a conference, hearing or otherwise) were available on the Commission website.
[7] Court Book (CB) page 49
[8] CB page 51
[9] See Submissions of the Applicant CB page 33 and appendix 13, CB page 75
[10] CB page 51
[11] Submissions of the Applicant, appendix 13, CB page 75
[12] Submissions of the Applicant, appendix 6-15, CB pages 59-80
[13] Submissions of the UFU, page 3
[14] Submissions of the Applicant, appendix 62, CB page 187
[15] Transcript PN537
[16] Transcript PN557
[17] Submissions of the UFU, page 3
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