United Firefighters Union of Australia v Country Fire Authority
[1996] IRCA 659
•24 Dec 1996
DECISION NO:659/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2787 of 1996
B E T W E E N :
UNITED FIREFIGHTERS UNION OF AUSTRALIA
Applicant
AND
COUNTRY FIRE AUTHORITY
Respondent
BEFORE: North J
PLACE: Melbourne
DATE: 24 December 1996
THE COURT ORDERS THAT:
Pending the hearing and determination of this proceeding or further order, the respondent by itself, its servants or agents, is restrained from:
(a)entering into individual employment agreements with members of the applicant performing the duties or appointed to the position of Operations Officer, including Graham Lay, Garry Weir, Neil Bumpstead, Glen Ravenhall, Paul King and Anthony Bearzatto or any other Operations Officers who have not yet signed an individual employment agreement with the respondent (the relevant Operations Officers);
(b)transferring or removing the relevant Operations Officers from their present duties or positions;
(c)according to the relevant Operations Officers terms and conditions of employment inferior to the terms and conditions of employment of Operations Officers employed by the respondent who have signed individual employment agreements with the respondent.
The applicant shall serve a copy of this order on each of the relevant Operations Officers by 5 pm on 27 December 1996.
Liberty is reserved to each of the relevant Operations Officers to apply to the Court for the discharge of the injunctions referred to in paragraph 1, so far as such injunction applies to that officer by giving 48 hours notice in writing to the applicant at 410 Brunswick Street, Fitzroy and the respondent at 8 Lakeside Drive, Burwood East.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2787 of 1996
B E T W E E N :
UNITED FIREFIGHTERS UNION OF AUSTRALIA
Applicant
AND
COUNTRY FIRE AUTHORITY
Respondent
BEFORE: North J
PLACE: Melbourne
DATE: 24 December 1996
EX TEMPORE REASONS FOR JUDGMENT
This is an application for an injunction under s 431 of the Act to restrain the respondent from contravening ss 334(1)(a), (1)(g), (2) and (3)(a) of the Act. The applicant is an organisation registered under the Workplace Relations Act 1996 (the Act). The respondent is a statutory body established under the Country Fire Authority Act.
On 25 November 1993, the applicant and respondent consented to the making of the Victorian Firefighting Industry Employees Interim Award 1993 by the Australian Industrial Relations Commission (the Commission). This award provided for a number of firefighter classifications, namely, Firefighter (Levels 1-3), Qualified Firefighter, Qualified Firefighter (with Leading Firefighter qualifications), Senior Firefighter, Leading Firefighter and Fire Officers Grades 1 & 2. In August 1996, as a consequence of a report by KPMG recommending a restructure of the organisation, the respondent created a number of new classifications not covered by the award. One such classification was that of Operations Officer.
The respondent seeks to have the conditions of employment of employees in this classification regulated by individual employment agreements. In response, on 29 October 1996, the applicant applied to the Commission for a variation of the award to cover the Operations Officer classification. By 20 December 1996, 28 appointments to this classification had been made, 20 of them from employees previously covered by classifications under the award.
The position of the respondent is that award regulation is not appropriate for the type of function performed by an Operations Officer. The relationship with the employer and the functions to be performed make it appropriate, so it is said, for the employment to be regulated by individual employment agreements.
The position of the applicant is that the conditions of employment of Operations Officers should be regulated by award.
It seems that seven members of the applicant have not signed individual employment agreements. They are performing the same functions as Operations Officers who have signed such agreements, but are being paid at the rate they were being paid prior to taking up the Operations Officer position. Further, they are not being paid a 4.5% availability allowance and a 10% flexibility allowance available under such agreement. They are also being denied salary packaging which significantly improves the pay of Operations Officers. The applicant said that the difference in pay between those Operations Officers who have signed individual employment agreements and those who have not is between $6,858 and $7,429 per annum in favour of those who have signed such agreements.
In the last few days, the respondent has sent to Operations Officers who have not signed individual employment agreements a letter in the following terms:
“I refer to the offer of an Operations Officer position made to you several weeks ago. It is my understanding that to date you have not accepted the position.
As you would appreciate there are consequential vacancies yet to be finalised depending upon your acceptance or otherwise of the position. It is the desire of the Chief Officer to finalise these appointments and consolidate the management structure within Regions/Areas as soon as is practicable. Given the time that has elapsed since you were offered the position, it is considered reasonable that you signify your acceptance or non acceptance of the position by 31 December 1996.
In the interim your existing substantive Fire Officer remuneration will be maintained at its current level whilst you are acting in the position of Operations Officer. Given the base rate of pay for Fire Officers was increased by the third $8 arbitrated safety net adjustment effective 11 October 1996, the remuneration you are currently receiving will be increased by that amount. You will commence to receive the $8 increase in the next pay which commences on 6 December 1996.
In the following pay you will receive back pay of the third $8 arbitrated safety net adjustment calculated from 11 October 1996 to 5 December 1996.
Given you took up the appointment of the new managerial role of Operations Officer prior to 4 December 1996, the Enterprise Bargaining Agreement (EBA) increases that are being paid to Firefighters and Fire Officers as from that date will not be paid to you.
Should you elect to accept the appointment offer by signing the Individual Employment Agreement (IEA), then the benefits of the IEA will become effective from your commencement date in the position.
Arising from the above changed circumstance, the remuneration schedule associated with your Individual Employment Agreement (IEA) for the position of Operations Officer will be increased to a total base rate of $47,245 p.a. A revised IEA will be prepared to reflect this change and forwarded to you by 20th December 1996.”
The application for variation to the award in the Commission is presently adjourned so that the President can determine whether to grant an application under s 107 of the Act. The parties are unable to say when these proceedings will resume, or when they will be completed. The deadline of 31 December 1996 imposed by the respondent in the above letter gives rise to the urgency of this application. It has been heard on Christmas Eve. In those circumstances, the views I have formed are necessarily not final views. They are preliminary views formed for the purpose of considering the interlocutory application in rushed circumstances.
SERIOUS ISSUE TO BE TRIED
It is first necessary to consider whether the applicant has demonstrated a serious issue to be tried. I will confine consideration to s 334(1)(g) at present.
The respondent submitted that there was no relevant injury or alteration because each of the seven agreed, when applying for the appointment as Operations Officer, to sign an individual employment agreement. There is no injury or alteration of position to the prejudice of the seven - they have simply failed to satisfy a condition required to obtain the appointment.
I am not concerned, at the present stage of proceedings, to make a final determination of this question. However, I am satisfied that there are serious issues to be tried. It is arguable that the seven who have not signed an individual employment agreement are being paid significantly less than the salary of an Operations Officer and are not being accorded the conditions applicable to Operations Officers because they want their salaries and conditions governed by award and not individual employment agreements. Further, the requirement to sign an individual employment agreement as a prerequisite to retaining an appointment by way of promotion is to alter the position of the employee to the employee’s prejudice, or to injure the employee in the employee’s employment. The alteration and injury arguably flow from the fact that the requirement to sign an individual employment agreement was not previously a requirement for promotion. Finally, the consequence of signing an individual employment agreement is said by the applicant, in practical terms, to deny the employee the assistance of the applicant in negotiating terms and conditions of employment. This is also arguably an injury to the employees in their employment, and an alteration of their position to their prejudice.
The respondent argued that there was no serious issue to be tried on the question of whether the seven employees were dissatisfied with the condition that they must sign the individual employment agreement resulting in the de facto exclusion of the applicant as their representative. On this issue, there is a conflict of evidence. Affidavits filed on behalf of the applicant suggest that the seven employees do not wish to sign individual employment agreements and wish to have the applicant negotiate terms and conditions on their behalf. Affidavits filed on behalf of the respondent suggest that most of the employees do wish to sign such agreements. I am not in the position to determine which version is correct. For the purposes of this application, however, the evidence of dissatisfaction is sufficient to raise a serious issue to be tried.
I am therefore satisfied that there is a serious issue to be tried in relation to all the elements of s 334(1)(g) of the Act in respect of all the Operations Officers employed by the respondent who have not yet signed individual employment agreements, including Graham Lay, Garry Weir, Neil Bumpstead, Glen Ravenhall, Paul King and Anthony Bearzatto. In the light of this finding, it is not necessary to deal with the claims made under s 334(1)(a), (2) or (3A).
DISCRETION
The respondent addressed only one argument on the question of the exercise of discretion. Apparently, the Commission has recently been asked to make an interim award in the terms of the individual employment agreements. The applicant has also sought orders from the Commission that Operations Officers not be transferred to other duties because of their refusal to enter into individual employment agreements. The respondent submitted that the Court should not make the orders sought in this application when such a matter had been agitated in the Commission. However, the issue before the Court is an alleged contravention of s 334 of the Act. This issue is not before the Commission. There is no basis in this case to refuse the orders on the ground that an industrial dispute and the regulation of the terms and conditions of employment is being dealt with by the Commission.
A matter of concern is that the injunction sought would prevent the respondent from entering into any individual employment agreements with the Operations Officers who have not yet signed such agreements. Some of those officers may hereafter wish to do so. I raised with counsel various ways of accommodating this problem. In the end, the most appropriate way is to reserve liberty to apply to those officers to have the Court discharge the injunction in relation to them.
ORDERS
I therefore make the following orders:-
Pending the hearing and determination of this proceeding or further order, the respondent by itself, its servants or agents, is restrained from:
(a)entering into individual employment agreements with members of the applicant performing the duties or appointed to the position of Operations Officer, including Graham Lay, Garry Weir, Neil Bumpstead, Glen Ravenhall, Paul King and Anthony Bearzatto or any other Operations Officers who have not yet signed an individual employment agreement with the respondent (the relevant Operations Officers);
(b)transferring or removing the relevant Operations Officers from their present duties or positions;
(c)according to the relevant Operations Officers terms and conditions of employment inferior to the terms and conditions of employment of Operations Officers employed by the respondent who have signed individual employment agreements with the respondent.
The applicant shall serve a copy of this order on each of the relevant Operations Officers by 5 pm on 27 December 1996.
Liberty is reserved to each of the relevant Operations Officers to apply to the Court for the discharge of the injunctions referred to in paragraph 1, so far as such injunction applies to that officer by giving 48 hours notice in writing to the applicant at 410 Brunswick Street, Fitzroy and the respondent at 8 Lakeside Drive, Burwood East.
I certify that this and the preceding
seven (7) pages are a true copy of the reasons
for judgment of his Honour Justice North.
Associate:
Dated: 12 February 1997
APPEARANCES
Counsel appearing for the applicant: M. Bromberg
Solicitors for the applicant: Maurice Blackburn & Co
Counsel appearing for the respondent: L. Kaufman, and later S. Wood
Solicitors for the respondent: Freehill Hollingdale & Page
Date of hearing: 24 December 1996
Date of judgment: 24 December 1996
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