Timothy Wells v Country Fire Authority Victoria
[2019] FWC 2622
•17 APRIL 2019
| [2019] FWC 2622 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Gavin Wright; David Harris; Shane Bailey; Timothy Wells
v
Country Fire Authority Victoria
(C2018/151; C2018/161; C2018/501; C2018/817)
COMMISSIONER WILSON | MELBOURNE, 17 APRIL 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6); applications dismissed; satisfied disputes at an end].
[1] This decision deals with four applications before the Commission to deal with alleged disputes arising under the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (the 2010 Agreement). 1 Each matter concerns allegations pertaining to the proposed introduction by the Country Fire Australia of Operations Officers positions working a 10/14 roster.
[2] Originally six matters were lodged with the Commission however, two of those applications were discontinued. The matters in totality are as follows:
1. C2017/7075 – Trevor Roberts v Country Fire Authority: lodged 21 December 2017 however, discontinued 9 April 2019
2. C2018/151 – Gavin Wright v Country Fire Authority: lodged 10 January 2018
3. C2018/161 – David Harris v Country Fire Authority: lodged 10 January 2018
4. C2018/501 – Shane Bailey v Country Fire Authority: lodged 31 January 2018
5. C2018/817 – Timothy Wells v Country Fire Authority: lodged 16 February 2018
6. C2018/1384 – Travis Harris v Country Fire Authority: lodged 15 March 2018 however, discontinued 4 May 2018
[3] The applications made by Mr Roberts, Mr Wright and Mr David Harris were the subject of several conciliation conferences before me, held on 17 January and 3 February 2018. After the conclusion of the conference on 3 February 2018 the Applicants (Mr Roberts, Mr Wright and Mr David Harris) each sought that the matters be listed for arbitration and directions were issued by me for that purpose on 21 February 2018. In particular, the three Applicants were required to file material by 28 February 2018 and the matters were indicated for arbitration before me on 3 and 4 April 2018.
[4] The initial Applicants generally complied with the directions for the provision of material to assist their case, with Mr David Harris providing material on behalf of himself and the other two applicants on 28 February 2018.
[5] Following a further conference held by me on 15 March 2018 in relation to the further applications by Messrs Wells and Bailey, which were the most recent of the applications, the February directions were set aside with an indication on the part of the Commission that it was disposed to hear all matters together. As a consequence of that indication fresh directions were issued with potential hearing dates of 23 and 24 April 2018. As a result of the amended directions, further material was provided on behalf of a number of those Applicants who had not filed during February.
[6] On 12 April 2018 The Country Fire Authority (CFA) wrote to me requesting an adjournment to the forthcoming arbitration in order to explore a resolution to the claims put forward. The CFA indicated that it had the support of the UFU in such regard as well as believing that the Applicants’ would also support the request. The telephone conversation between my Associate and the UFU representative on 13 April 2018 confirmed the UFUs disposition to the CFAs request for an adjournment, however subsequent communication from a number of the Applicants’ indicated that they opposed an adjournment although some did indicate a preparedness to participate in conciliation, but not at the cost of losing the arbitration dates. As a consequence of the lack of consensus between all concerned about whether the matter should be adjourned I determined that it would be appropriate to list the matter for a mention hearing and such was held on 16 April 2018.
[7] Prior to the mention hearing, on 16 April 2018 at 12:58 PM, Mr Koletsis for the CFA wrote to the Commission as well as to the other parties indicating that the CFA had received advice from the UFU that the union did not support the implementation of the 10/14 Operational Officer positions which then lead to a decision by his organisation that it would not be seeking to implement the creation of these positions at this time. His correspondence noted “that the relief sought by the applicants is confined to the way in which the 10/14 role is to be implemented (including the mandatory qualifications for that role) and/or the impact of that implementation”.
[8] Shortly before the Mention Hearing, at 1:57 PM, Gina Moore for the UFU communicated that the union’s view was that “the existing disputes currently before the Commission no longer have utility”. Her communication also reiterated that she supported the proposal for the vacation of the hearing dates.
[9] In the course of the mention hearing, Mr Koletsis of the CFA confirmed that it was his organisation's intention to withdraw the 10/14 Operations Officer positions for the foreseeable future and that advertising for the positions would also be withdrawn. 2 Further, Counsel for the CFA Mr C O'Grady QC drew the Commission's attention to the ramifications of the CFA’s decision, namely that with the withdrawal of the positions in question there would be no dispute before the Commission.3 At the conclusion of the Mention Hearing, I requested the CFA to confirm its position in writing to each of the Applicants in the following days and that I would set aside the directions given in the matter so far and that I would not press the filing of the CFA and UFU submissions which otherwise would be required particularly on the basis that if the advertisements had been withdrawn I did not think there was a proper basis for me to request that the documents be filed. Having set aside the directions and the forthcoming arbitration dates I indicated to the parties that if there were to be discontinuance of the applications then such would be “strictly on the basis that the discontinuance does not affect your right to re agitate the dispute in the future if you believe that a new dispute about the same subject comes up” and that liberty to apply would be given “to any party in the event that the matters are not discontinued, in which case the Commission would proceed to determine whether or not they can survive”.4
[10] On 20 April 2018, Mr David Harris wrote to the Commission advising that he and Messrs Roberts, Wright, Harris, Bailey, Wells did not wish to discontinue their applications. As a consequence the Commission wrote to the parties giving further directions regarding the applications. In particular it requested the CFA to confirm through correspondence to each Applicant the organisation's intention to withdraw the advertisements; give liberty to the Applicants to seek reinstatement of the hearings in the event that the CFA did not write to them in the manner directed; and give liberty to the CFA and the UFU to seek dismissal of the applications pursuant to s.587(1) of the Fair Work Act 2009 (the Act).
[11] On 27 April 2018 confirmation was received from the CFA that the organisation had written to each of the Applicants. The correspondence provided to each of the Applicants was in the following form;
“Dear,
RE: 10/14 OO Positions Grievance
CFA wishes to confirm the position it put to the parties, during the teleconference convened by the Fair Work Commission, on Monday, 16 April 2018.
Following discussions between the UFU and the CFA it has been agreed that CFA will withdraw from the process of establishment of the 10/14 Operations Officer positions. Accordingly we write to confirm that CFA will withdraw the advertised positions and provide notification to the field that no further recruitment activity will proceed for them.
Should CFA decide to introduce these positions again at some time in the future it will do so following further consultation with the UFU and will take into account the matters raised by your grievance.
Given that the basis of your grievance was the selection criteria for these positions and that the positions are now not going ahead we advise you that your grievance now has no basis. We consider the dispute resolution process in this matter has now concluded.
Yours sincerely,”
[12] After receiving this confirmation from the CFA my Associate communicated with each of the Applicants and invited Notices of Discontinuance from each person. While a discontinuance was received from Mr Travis Harris in respect of his application, C2018/1384, discontinuances were not received from any of the other Applicants.
[13] More recently my Associate, in conformity with the Commission's practice to periodically close long-standing files, has communicated with each of the remaining Applicants seeking to elicit a Notice of Discontinuance so that the files may be closed. Responses were received from Mr Wright, Mr David Harris and Mr Wells who each requested that their application remain open and that there be further conciliation proceedings. Further Mr Travis Harris made a similar request even though, having filed a Notice of Discontinuance with the Commission on 4 May 2018, his application may not be progressed any further.
[14] In response to these approaches from the Applicants my Chambers communicated with the parties to the effect that based on the correspondence received I accepted that that these matters were not at an end. That was an incorrect communication on my part for which I take full responsibility and which arose from a failure to appreciate the full circumstances of the file.
[15] After reviewing the files, and the matters set out in the chronology, I was lead to the conclusion that with the CFA having withdrawn the advertising that precipitated the disputes in each case, there is likely no live dispute before the Commission and accordingly there would be no reasonable prospect of success for the matters if they were to remain open.
[16] After forming this view I advised parties in the form of a Statement issued 3 April 2019 that I had formed the view that each of the remaining applications would likely not have a reasonable prospect of success if they were to remain the subject of proceedings before the Commission and that I was considering dismissing each of the remaining applications pursuant to s.587(1)(c) of the Act given the applications have no reasonable prospects of success.
[17] The Statement directed all parties including the Applicants, the UFU and the CFA to provide written submissions on the matters outlined in the Statement by no later than 4:00 PM 12 April 2019. Submissions were not received from any of the Applicants, only the UFU and CFA.
[18] On 9 April 2019, a Notice of Discontinuance was received from Mr Roberts C2017/7075 withdrawing his matter.
[19] On 12 April 2019 the UFU provided written submissions that the original disputes raised by the Applicants in their originating applications were at an end the moment that the CFA withdrew advertisement for the 10/14 Operations Officers position. 5 The UFU conceded that:
“12. Since that time the UFU has consulted with the CFA with respect to a new 10/14 Commander Fireground Operations Role Statement. That consultation occurred through various forums, including the Operations Officer/Operations Manager Sub-Committee and the Enterprise Bargaining Implementation Committee. It is a different role to that advertised by the CFA in December 2017, with different eligibility criteria. This new role was subsequently advertised by the CFA on 4 April 2019. Whilst this new role may give rise to a dispute between the applicants and the CFA, any such dispute would not relate to the previous advertised roles which is the subject of the applications. This, it is submitted, is entirely consistent with the observations recorded at in the Statement at [18].” 6
[20] The UFU submitted that the applications should be withdrawn as they have no reasonable proposed of success.
[21] The same day CFA also submitted written submissions confirming that the CFA withdrew the advertisements of the 10/14 Operations Officer which was the subject of the applications with there now being a fresh proposal to create 10/14 Commander positions which was currently under consultation. As such, the dispute as to the 10/14 Operations Officer positions was at an end. 7
[22] In dealing with disputes such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 8 The Commission’s power to exercise a power of private arbitration therefore derives from whether an enterprise agreement’s settlement procedure “requires or allows” the Commission to deal with the dispute.9
[23] The dispute resolution procedure at clause 15.2.6 of the 2010 Agreement provides that “Step 5 if the matter is not settled following progression through the disputes procedure it may be referred by the union of the employer to the FWA. FWA may utilise all its power in conciliation and arbitration to settle the dispute”. The Commission’s power to arbitrate a dispute under the 2010 Agreement is therefore predicated on there being a dispute between the parties. Given that the ‘dispute’ is no longer live the Commission no longer has the power to arbitrate the matter.
[24] As a result, I am satisfied that based on the evidence before the Commission that the dispute pertaining to the 10/14 Operations Officer advertisement which was the subject of the six applications is at an end and therefore the Commission no longer has the power to arbitrate the dispute in accordance with clause 15.2.6. Accordingly, I am satisfied that the applications have no reasonable prospect of success and should be dismissed pursuant to s.587(1)(c) of the Act.
[25] It is noted however, that while the dispute as to the 10/14 Operations Roster is at an end that this does not prevent the parties from making fresh applications regarding the new 10/14 Commander position should a dispute arise as to these positions. Both the UFU and CFA submit that the 10/14 Commander position is a new position which has involved modified selection criteria. As such, should these new roles give rise to a dispute between the Applicants and the CFA in the future, such dispute may be the subject of a new application or applications by the Applicant(s) granted they are made in accordance with the dispute resolution procedure at clause 15 of the 2010 Agreement.
[26] Accordingly, the following applications are dismissed for no reasonable prospect of success. Orders to this effect will be issued simultaneously:
1. C2018/151 – Gavin Wright v Country Fire Authority
2. C2018/161 – David Harris v Country Fire Authority
3. C2018/501 – Shane Bailey v Country Fire Authority
4. C2018/817 – Timothy Wells v Country Fire Authority
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR707110>
1 AE881690.
2 Transcript, PN29-30.
3 Ibid, PN58-59.
4 Ibid, PN116-119.
5 United Firefighters Union – Victoria Branch Submissions, dated 12 April 2019, [11].
6 Ibid.
7 Country Fire Authority Submissions, dated 12 April 2019, [6] – [8].
8 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].
9 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.
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