United Firefighters' Union of Australia v Country Fire Authority

[2013] FWC 7013

[2013] FWC 7013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Country Fire Authority
(C2013/4790)

Country Fire Authority
v
United Firefighters’ Union of Australia
(C2013/4950)

COMMISSIONER WILSON MELBOURNE, 16 SEPTEMBER 2013

Alleged dispute concerning an enterprise agreement.

[1] This decision concerns two applications pursuant to s.739 of the Fair Work Act 2009 (Act), made respectively by the United Firefighters’ Union of Australia (UFU) and the Country Fire Authority (CFA) for the Fair Work Commission (Commission) to deal with a dispute arising under an enterprise agreement. Each dispute relates to the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (AE881690) (Operational Staff Agreement). The respective disputes, which have been dealt with together by me, are;

• C2013/4790 - United Firefighters’ Union of Australia v Country Fire Authority: alleged dispute concerning clause 13 and clause 15 of the Operational Staff Agreement (lodged in the Commission 18 June 2013) (the UFU Application).



• C2013/4950 - Country Fire Authority T/A CFA v United Firefighters’ Union of Australia: alleged dispute concerning a grievance under clause 15 of the Operational Staff Agreement (lodged in the Commission 1 July 2013) (the CFA Application).

[2] The subject matter of the UFU Application is the following;

“4. What is the dispute about?

The UFU have been notified by members that the CFA have made decisions on changing or intending to change reporting lines, workload and resources. These decisions include the change to the line management of BASCs from Manager Community Safety to Operations Managers in Southern Metropolitan Region.

The UFU lodged a grievance on this matter as these changes or intended changes have not been the subject of consultation under the Agreement.

The CFA have refused to deal with dispute and have breached the dispute resolution procedure in relation to this grievance”. 1

[3] The subject of the CFA Application is the following (referred to in part only);

“4. What is the dispute about?

(1) The dispute is about the following related matters:

(a) whether, having regard to its form and content, the notified grievances as referred to in paragraph 4(5) below constitute the submission of a dispute or grievance under cl. l5.2.1 of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (Agreement).

(b) whether the submission of the notified grievances is an improper use the dispute resolution process under cl. 15 of the Agreement aimed at obstructing and frustrating the implementation of legitimate CFA management actions and decisions”. 2

[4] Each party asserts jurisdictional impediments about the other party’s application. In summary;

• the CFA submits about the UFU Application that it is incompetent and fails for want of jurisdiction for three reasons;



• the alleged dispute is not a dispute within the meaning of clause 15 of the Operational Staff Agreement;



• even if it were, the dispute did not exist at the time the application was made and was not progressed through the agreement’s dispute resolution procedure; and



• the UFU assertion that there has been a failure to consult is misconceived and without merit. 3



• the UFU submits about the CFA Application that;



• it is not a dispute that falls within the scope of the Agreement’s clause 15; and



• the CFA has failed to comply with the Agreement’s dispute resolution steps, which is a necessary condition for the Commission to have jurisdiction to determine the CFA’s Application.

SUBMISSIONS AND EVIDENCE

[5] At the core of the respective Applications are complaints about the sufficiency of consultation and adherence to the disputes resolution procedure.

[6] Several clauses of the Operational Staff Agreement are relevant to the consideration of what is required for consultation. These include Clauses 13 (Consultative Processes), 14 (Introduction of Change), 15 (Dispute Resolution) and 16 (Consultation Officer & Disputes Regarding Consultation and Change).

[7] Although the various elements of the requirement to consult are spread across several clauses, construction of the term and how it applies to the UFU and CFA notifications ultimately leads to the following interpretation:

• If the employer wishes to “implement significant change” (cl. 14), it must follow the provisions of cl. 13;



• So far as is relevant, under cl. 13 the employer is not able to implement proposals for change “without referral” to the Enterprise Bargaining Implementation Committee, or EBIC (cl. 13.3.5);



• EBIC is a demonstration of the parties commitment “to effective consultation and communication” and part of EBIC’s charter is “to facilitate the implementation of this agreement and ongoing workplace reform” (cl. 13.3.1);



• The aims of EBIC include these (cl. 13.3.6);



• “consult where provisions in this agreement require consultation”;



• “consider and make recommendations regarding issues arising under this agreement”; and



• provide “an opportunity to utilise employee knowledge and experience ... for improving communication and cooperation between the CFA and its employees”.



• What is “consultation” is an expansive and not a narrow construct - “the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision”.



• Pursuant to clause 16, “[w]here there is a dispute regarding consultation, before referring the matter to FWA either party may notify the Consultation Officer”, in which case certain procedures specific to clause 16 are triggered.

[8] Central to the UFU Application is whether decisions have been taken by the CFA without consultation, with the obligation for consultation arising because of the requirement in paragraph 13.3.5 that “[n]o proposals for change arising from this agreement shall be implemented without referral to the Enterprise Bargaining Implementation Committee”.

[9] The complaints of both parties about the lack of adherence to the disputes resolution procedure relate to the process by which grievances have been formed and expressed to each other, and the attention to which each party has paid to the processes and dispute escalation steps set out in sub-clause 15.2.

[10] Written submissions were received from each party and evidence was received from the following;

• Mr Peter Lockwood (CFA Officer-in-Charge, Traralgon Fire Station);



• Mr John Tipping (CFA Senior Wildfire Instructor);



• Ms Michelle Baldini (UFU Industrial Officer); and



• Ms Fran Boyd (CFA Executive Director, People and Culture).

[11] Mr Lockwood’s evidence referred to the effects of the CFA’s proposed restructure on regional directors and operations managers noting that under the CFA’s restructure plan they “will merge into one single classification”. 4 His evidence referred to consequential work/life balance concerns; the work that operational managers do and the frequency of Operations Officer/Operations Manager consultative meetings. Mr Lockwood believes consultation concerning Operations Officers should be done through a particular consultative process for Operations Officers and Operations Managers set out in Clause 123 of the Operational Staff Agreement. He believes the short consultation and implementation timeframes suggest the matter is a “done deal”. 5

[12] Mr Tipping was concerned the formation of a new senior instructor role might be operationally at the expense of those positions occupied by instructors 6 and that as a result instructor positions would have an additional workload7; that instructors will supervise volunteers and sessional instructors and that changes will be made to instructor administrative arrangements. His evidence also referred to the process of providing comments and feedback to the CFA about decisions and expressed frustration about what he saw as a sham consultation process.8

[13] Ms Baldini gave evidence about the way in which the UFU dispute had formed and progressed. Her statements introduced a significant amount of correspondence on the subject between the parties between November 2012 and August 2013.

[14] Ms Boyd’s evidence went to the structure and governance of the CFA; the process of organisational change being undertaken in the CFA which surrounds a strategy entitled “creating a future together”. 9 Ms Boyd’s evidence included the following;

“33. It was not until July 2013 that the various ideas and strategies for change had been properly developed and conceptualised by the Project Team to a stage where it was considered that they could be put forward as definite proposals for change.

34. On 1 July 2013, the Project Team presented their ideas and strategies to the Executive Leadership Team about how to make the CF A more efficient and effective in terms of service delivery. The proposed changes included:

(a) consolidating support services activities and combining similar functions and resources);

(b) transferring responsibility for support services from Fire & Emergency Management to the relevant support directorates to free F&EM up to focus on service delivery;

(c) allocating resources by workload not location;

(d) moving from eight to five regions, with no change to districts; and

(e) creating new Assistant Chief Officer executive roles to lead the regions to ensure a very clear line of command and control.

35. The Executive Leadership Team thought that the ideas of the Project Team could work and decided that the next step would be to communicate the proposed changes to staff and other relevant parties and commence the process of consultation with them”. 10

[15] Ms Boyd’s evidence included that the Executive Leadership Team met with the CFA’s Senior Leadership Team on 10 July and briefed them about the proposed changes and subsequently notified staff of the proposed changes through a CEO blog and video.

[16] Ms Boyd’s evidence is that no firm decision had been made about what proposals for change the CFA would support, or how it intended to implement them until 11 July 2013, or shortly before. I accept that evidence. Ms Boyd was resolute in her oral evidence, repeatedly denying propositions that decisions had been made at an earlier time. The documentary evidence supported her evidence. Ms Boyd submitted an options document considered by the CFA’s Executive Leadership Team in May 2013 showing selection of the preferred option meant the CFA would “commence implementation of new structure before 2013/14 fire season and phase the implementation over the season”. 11 The option was still unformed at that point, which the information within the document supports. The fact that consideration was being given by the CFA to alternatives for change is not inconsistent with a finding that no firm decisions had been made in May, or until July.

[17] Part of the material provided by the CFA were Minutes from the CFA’s Executive Leadership Team which showed that on 20 May 2013 options for change were under consideration.

[18] An email from Ms Baldini to Mr Cordova and Mr Ferguson dated 14 May 2013 shows that the UFU had some knowledge at least of an impending restructure. This is broadly consistent with the timing of the briefing given to the Executive Leadership Team in May. In her email, Ms Baldini refers to the grievance that forms part of the UFU notification in this matter and says;

“The grievance as stated originally includes CFA recently changing or intending to change reporting lines, workload and locations of resources without following the required processes under the Enterprise Agreement.

This includes changing the reporting of BASCs from Manager Community Safety to Operations Managers and possible reduction of regions with changes to regional commanders”. 12(emphasis added)

[19] While this supports the union’s position that significant change was being contemplated by the CFA prior to July 2013 it does not demonstrate proposals for change had been decided by the CFA before 11 July 2013. At best, it demonstrates that ideas were being worked on and that knowledge of that work had made its way to the UFU. Within the context of the employee relations of the CFA this is unremarkable. It can be expected that managers work on ideas for change, short of having made decisions, and that fact itself makes its way to interested employees well before ideas move to options, and options move to proposals for change. Under the Agreement, the obligation to consult arises before proposals for change are implemented, since “[n]o proposals for change arising from this agreement shall be implemented without referral to the Enterprise Bargaining Implementation Committee.”

[20] Within the context of the Operational Staff Agreement, the requirement to commence consultation (which is separate and distinct to the desirability of commencing consultation) is the point at which “proposals for change” have been formed and are considered for implementation, at which time there is an obligation to refer such proposals to EBIC prior to implementation (cl. 13.3.5). Consultation is triggered at the point at which the employer wishes “to implement significant change”, which stems from the obligation contained in clause 14 to follow the consultative process in clause 13.

[21] On the basis of the evidence before me, I am not satisfied the CFA had either made decisions about proposals for change that it wanted to implement, or had decided to implement significant change at any point materially before 11 July 2013.

Changes to the line management of certain administrative employees

[22] The UFU’s Application the UFU also refers to anticipated changes to the line management of certain administrative employees, referred to as BASCs, or Brigade Administrative Support Coordinator. The matter arose for the UFU following advice in April 2013 from the Regional Direct of the Southern Metropolitan Region that BASCs in that region would no longer report to the Manager of Community Safety, but would instead report to the Operations Manager 13. The CFA response to the union at the time was that these positions worked under another enterprise agreement, the CFA Professional, Technical and Administrative Agreement. The evidence does not make clear how changes to the work of these people impacts, if at all, on the work of those employees engaged under the Operations Staff Agreement.

[23] There is insufficient evidence before me in these proceedings to form a view that the changes notified by the CFA amount to the implementation of significant change in relation to the work or reporting arrangements of employees engaged under the Operational Staff Agreement.

The filling of certain instructor positions in 2 districts workload of instructors;

[24] Although the UFU Application did not refer to a dispute about the filling of certain instructor positions or the workload of instructors, material was provided to me that would indicate this is one of the issues about which the UFU believes there has been insufficient consultation. The fact there is a dispute over the issue is asserted in Ms Baldini’s statement. 14

[25] There is limited evidence before the Commission on the subject (mainly in the form of Mr Tipping’s statement). Ms Baldini’s evidence refers to the issue in the context of “the Instructor Districts 15 and 16 grievance”, which is also how it is characterised in correspondence from the union to the CFA and attached to the CFA Application. 15 Mr Tipping’s evidence is about the dispute being in the context of workloads for instructors.

[26] Overall, however, there is insufficient evidence before me to form a view that the changes notified by the CFA amount to the implementation of significant change for employees engaged under the Operational Staff Agreement .

CHRONOLOGY OF THE GRIEVANCES

[27] I take into account the following chronology and development of the grievances that are before me;

• On 10 April 2013, Peter Marshall, UFU Branch Secretary, wrote to P. Schmidt (CFA Regional Director, Southern Metropolitan Region) advising in part;




“It has come to our attention that the CFA have recently changed or intend to change reporting lines, workload and location of resources including changes to the line management of BASCs from Manager Community Safety to Operations Managers in Southern Metropolitan Region.

The CFA has not followed the required processes under the CFA & UFU Operational Staff Agreement 2010.

Accordingly the UFU submits a grievance on behalf of its members pursuant to Clause 15 of the Agreement”. 16

• On 24 April 2013, Mr Greg Meredith (Employee Relations Project Officer) responded to Mr Marshall. He asked three questions of Mr Marshall about the earlier UFU correspondence as follows;




“The questions that arise from this notification are:

1. The terms and conditions of BASC staff are specified in the Professional, Technical and Administrative Agreement 2011" [the PTA Agreement]. Therefore CFA is entitled to enquire how it is that a grievance concerning these staff is sought to be brought via the Operational Staff Agreement?

2. In addition, clause 68.4.8 of the PTA Agreement specifically refers to the reporting relationship for these staff to be "ultimately through to the Chief Officer" and provides that this “may need to reflect regional circumstance". CFA advises that both of these provisions have been met. Therefore, on what basis is a grievance claimed to be brought pursuant to the Operational Agreement?

3. In these circumstances CFA is entitled to know on whose behalf this grievance is lodged and on what basis?

CFA will be better able to provide a response to the matter upon receipt of the further details I have requested”. 17

• On 3 May 2013, Ms Baldini wrote to Mr E Ferguson, Chief Officer with the CFA. In her correspondence, Ms Baldini alleged the CFA had not sought to follow the dispute resolution process as required and had not adequately responded to the union’s grievance at step 1. She referred the matter to him as the next senior officer, under step 2 of the Operational Staff Agreement. She said:




“We struggle to see how the CFA cannot comprehend that changing of line management to Operations Managers will fall within the realm of the Operational Staff Agreement as the Operations Managers fall under the Operational Staff Agreement not the PTA Agreement.

The grievance notified is not limited to this change of line management, but also includes workloads and location of resources that effect employees under the Operational Staff Agreement.

The dispute has been lodged under the Operational Staff Agreement and the UFU does not accept the CFA's attempt to relocate the dispute under another agreement”. 18

• On 6 May 2013, Mr Ferguson wrote back to Ms Baldini, saying he had referred the union’s grievance to Mr Cordova, Executive Manager Employee Relations, and asked that any further contact from the union be with Mr Cordova. Ms Baldini responded to Mr Ferguson the same day saying, in part;




“Unfortunately your response is inconsistent with the requirements under the Operational Staff Agreement for the matter to be submitted to the appropriate senior officer, which is in this case yourself. To refer this matter to Peter Cordova would be skipping steps 2 and 3 and this is not agreed to by the UFU”. 19

• On 7 May 2013, Mr Cordova wrote to Ms Baldini. His email said he had been authorised to deal with the matter and sought further particulars. Mr Cordova indicated the CFA would not be in a position to respond until the grievance had been substantiated and that after receipt of the further and better particulars the CFA would give further consideration to the matter. 20



• On 14 May 2013, Ms Baldini replied to both Mr Cordova & Mr Ferguson, saying in part;




“I refer to Mr Cordova's response below which again has not addressed the issue that the CFA are not following the dispute resolution process and are instead attempting to skip steps 2 and 3 and refer this matter to step 4.

The UFU did not ignore a response for further and better particular and we dispute that the original grievance does not substantiate the basis of the grievance.

The grievance as stated originally includes CFA recently changing or intending to change reporting lines, workload and locations of resources without following the required processes under the Enterprise Agreement.

This includes changing the reporting of BASCs from Manager Community Safety to Operations Managers and possible reduction of regions with changes to regional commanders.

The UFU does not agree that the CFA does not have enough information to deal with this grievance in accordance with the dispute resolution process.

Further, we do not agree that you are entitled to choose to skip steps of the dispute resolution process, or that you can 'determine reporting lines' without following the consultation process under the Enterprise Agreement”. 21

• On 16 May 2013, Ms Baldini wrote to Mr Cordova advising of a grievance regarding the filling of instructor positions in Districts 15 and 16. 22



• On 17 May 2013, Mr Cordova replied to Ms Baldini, indicating the CFA’s views had not changed from his correspondence of 7 May.



• On 20 May 2013, Ms Baldini responded to Mr Cordova, however the terms of the attachment to that correspondence were not provided to the Commission. 23



• On 3 June 2013, Mr Cordova wrote to Mr Marshall, the UFU Secretary, advising that the CFA did not consider the grievance notifications were substantive disputes within the meaning of the Agreement’s disputes clause; that it considered the UFU to be misusing the dispute resolution clause; invited the provision of further and better particulars for the CFA’s review, or the withdrawal of the notification; and, critically, indicating the CFA considered a dispute, within the meaning of the Agreement, will have arisen if the UFU did not provide additional particulars or withdraw its notifications. 24



• On 6 June 2013, Ms Baldini wrote to Mr Cordova saying the UFU has “on multiple occasions sought to provide details of the grievance”, but without providing further information about the grievance. 25



• On 18 June 2013, the UFU filed its Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure.



• On 1 July 2013, the CFA filed its Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure.



• On 11 July 2013, the CFA’s Chief Executive, Mr Mick Bourke communicated with staff and others through a CEO blog, advising of proposals for change in several respects. 26

RELEVANT LEGISLATIVE AND AGREEMENT PROVISIONS

[28] The UFU and CFA notifications seek for the Commission to deal with a dispute pursuant to s.739 of the Act. That section allows for disputes to be dealt with, in conjunction with s.738, an enterprise agreement includes a term that provides a procedure for dealing with disputes that “requires or allows the FWC to deal with a dispute”.

[29] I have previously referred to the operation of the consultation and dispute resolution clauses. The way the parties have dealt with this matter means that clause 16 is not relevant to this analysis (since that clause provides an optional process, that was not triggered, for resolution of disputes about consultation). In addition to my earlier discussion, the following parts of clauses 13 (Consultative Processes); 14 (Introduction of Change) and 15 (Dispute Resolution) are relevant to consideration of the Applications.

[30] Clause 13 sets out the Operational Staff Agreement’s consultative process. While not all of the clause is directly relevant to the issues that require decision in this matter, the process defines consultation in the following way;

“13.1. Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.”

[31] Other parts of the clause establish a Consultative Committee (cl. 13.2) and an Enterprise Bargaining Implementation Committee (EBIC) (cl. 13.3).

[32] Clause 14 provides the following about the implementation of change:

“14. INTRODUCTION OF CHANGE

Where the employer wishes to implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement, the provisions of clause 13 will apply.”

[33] Clause 15 provides a comprehensive dispute resolution process and is reproduced by me in full;

“15. DISPUTE RESOLUTION

15.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:

15.1.1. all matters for which express provision is made in this agreement; and

15.1.2. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and

15.1.3. all matters pertaining to the relationship between the CFA and UFU, whether or not express provision for any such matter is made in this agreement, and

15.1.4. all matters arising under the National Employment Standards.

The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.

15.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:

15.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee’s immediate supervisor.

15.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.

15.2.3. 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.

15.2.4. 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.

15.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee 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.

15.2.6. 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 FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.

15.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge.

15.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 15.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring.

No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.

15.5. This clause shall not apply to a dispute on a Health and Safety issue.

15.6. A dispute may be submitted, notified or referred under this clause by the UFU.

15.7. A decision of FWA under this clause may be appealed. A dispute is not resolved until any such appeal is determined.”

[34] Paragraph 15.2.6 is the fifth step in the dispute resolution procedure and it is a term that “requires or allows the FWC to deal with a dispute” in the manner prescribed by s.739. While the interaction of s.739 and clause 15 confers the necessary general power on the Commission to deal with each Application, the circumstances and specifics of each will be determinative of whether the Commission is authorised or required to deal with each matter.

[35] Paragraph 15.2.6 does not require or allow all matters to be referred to the tribunal; rather it empowers the Commission to deal with certain matters only, being those “not settled following progression through the disputes procedure”.

[36] The disputes procedure in sub-clause 15.2 (of which paragraph 15.2.6 is a part) is within the context set out at the start of the subclause. Specifically, the context of the subclause is “[t]o ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance” (emphasis added).

[37] Significantly, the disputes procedure shall be followed for the purposes of ensuring effective consultation and with the objective of achieving satisfactory resolution.

[38] This context leads to the construction that under the Step 5 set out in paragraph 15.2.6, a referral to the Fair Work Commission may only be AFTER the matter has not settled AND it has progressed through the disputes procedure. Even then, referral to the Commission is not automatic, merely that a party MAY refer the dispute.

CONSIDERATION OF EACH APPLICATION

The UFU Application

[39] The UFU Application concerns an apprehension that it has not been consulted about decisions made or expected to be made. As it was argued before me, the notification extends to three subjects, namely; an issue associated with restructuring of the workplace; changes to the line management of certain administrative employees; and the filling of certain instructor positions in two districts.

[40] Despite how the application was argued, the Commission’s jurisdiction to deal with the dispute is only to the extent permitted by the Operational Staff Agreement. The basis of the application to the Commission was that, on 18 June 2013, the UFU had formed the view that the CFA had failed to consult about specified matters, or refused to deal with the issues said to be in dispute, and had thereby breached the disputes procedure.

[41] The chronology of the matters referred to above demonstrates that the subject matter of the UFU Application was first brought to the attention of the CFA on 10 April 2013. There is not a material difference between the characterisation of the subject matter in April, and the characterisation set out in the UFU’s Dispute Application form June 2013;

• Subject matter as stated by UFU on 10 April 2013




“... the CFA have recently changed or intend to change reporting lines, workload and location of resources including changes to the line management of BASCs from Manager Community Safety to Operations Managers in Southern Metropolitan Region. ...”

• Subject matter as stated in UFU Dispute Application on 18 June 2013




“... the CFA have made decisions on changing or intending to change reporting lines, workload and resources. These decisions include the change to the line management of BASCs from Manager Community Safety to Operations Managers in Southern Metropolitan Region. ...”

[42] At one level the terms of the subject matter are expansive and not particularised. It is possible actual changes or intended changes to “reporting lines, workload and resources” could mean many things in an authority as large as the CFA, with 58,000 volunteers, 1,700 employees and 820 paid firefighters engaged across 1,216 brigades in 20 districts and 8 regions. 27

[43] At another level, the terms of the subject matter of the dispute are narrow, since the only specifics contained are an allegation that there has been a change of line management arrangements for one type of employee in one region.

[44] In the chronology and material before me, it is evident the CFA was concerned about the lack of particularity within the UFU grievance raised from April 2013, and attempted to raise that concern with the UFU. They asked for further and better particulars on at least four occasions - 24 April, 7 May, 17 May and 3 June 2013. Such information was not forthcoming from the UFU. Instead, the UFU replied;

• On 3 May 2013, in reply to the CFA’s request of 24 April - They struggled “to see how the CFA cannot comprehend” changes to the line management arrangements for certain staff would not impact on operations staff, and that the grievance “is not limited to this change of line management, but also includes workloads and location of resources that effect employees under the Operational Staff Agreement”, without providing any further information;  28



• On 14 May 2013, in reply to the CFA’s request of 7 May - that “[t]he UFU did not ignore a response for further and better particular and we dispute that the original grievance does not substantiate the basis of the grievance”; however no further information was provided;  29



• 20 May 2013 - While the evidence records a reply was made by the UFU to the CFA dated 20 May 2013, a copy of this correspondence has not been provided to the Commission; 30



• On 6 June, in reply to the CFA correspondence of 3 June - it was said “[t]he UFU has on multiple occasions sought to provide details of the grievance. The grievance relates to the employment relationship and the UFU also have concerns about consultation regarding these changes. The CFA have not accepted these details.” Again, no further information was provided by the UFU.  31

[45] It is submitted by the UFU that since the lodgement of the Application, the dispute has expanded to include the decisions of the CFA to restructure its operations.

[46] In considering this proposition, I note the content of the grievance raised in April 2013 is not materially different from the UFU Application lodged in June. The only meaningful particulars in either relate to the BASC staff, however it did not emerge in the proceedings how this change amounted to significant change for employees working under the Operational Staff Agreement. The other reference in the notification, to actual changes or intended changes to “reporting lines, workload and resources” is too broad within the context of the CFA to have meaning.

[47] While it can be argued the subject matter of the dispute may have expanded since the UFU Application lodged in June, as a result of the CFA’s proposals for change, the absence of any further and better particulars from the UFU at any time prior to 11 July 2013 about what it meant with its references to actual changes or intended changes to “reporting lines, workload and resources” leads to the view there is not a connection and that the dispute has not expanded. The UFU had at least four occasions in which to provide further particulars to the CFA and chose not to.

[48] Consequently, I am not satisfied the dispute, at the time it was subject of an application to the Fair Work Commission in June 2013 had expanded, or could have expanded, appreciably beyond the words set out in the original notification from the UFU to the CFA in April 2013.

[49] As referred to previously, sub-clause 15.2 sets out the disputes procedure for the parties to follow, and paragraph 15.2.6 provides the means by which a matter still in dispute may be referred to the Fair Work Commission for determination.

[50] Consideration of the interaction between the parties leads to the view that the subject matter of the UFU Application did not progress beyond Step 2 of the disputes procedure;

• While it is not stated in the content, it can be surmised from all the circumstances that the email from Ms Baldini to Mr Schmidt, dated 10 April 2013, amounts to a submission under Step 1;



• The Step 1 status of the 10 April approach is confirmed by Ms Baldini in her email to Mr Ferguson dated 3 May 2013, in which she escalates the approach to Step 2;



• Ms Baldini’s email of 6 May takes the CFA to task for potentially skipping Step 2 and 3, and refuses such possibility;



• Ms Baldini reiterates this on 14 May; and



• Ms Baldini maintains references to the dispute being at Step 2 in her correspondence to the CFA dated 6 June 2013.

[51] Determination of the procedural steps followed by a dispute notifier, within the context of the Operational Staff Agreement, is not an inconsequential or otiose matter.

[52] The disputes procedure is within the context of sub-clause 15.2. The procedure is for the purposes of ensuring effective consultation in an effort to achieve a satisfactory resolution of any dispute or grievance. While “consultation” over the disputed issues is not explicitly referred to within steps 1 or 2 of the procedure, it is explicitly referred to at the start of the sub-clause. All of the steps in the procedure, including Steps 1 and 2, are there for the purposes of ensuring effective consultation within the objective of achieving satisfactory resolution of the dispute or grievance.

[53] The Operational Staff Agreement defines consultation to be “... the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision ...”.

[54] Should a matter progress to Step 3, the step requires an unsettled matter to be recorded and “submitted to the appropriate delegated Industrial Representative of the employer for consultation” (emphasis added). The parties can move to Step 4 if the matter is not settled at Step 3; however implicit in such a move must be the completion of the process elements of the former step, one part of which must be consultation in the full meaning prescribed by the Operational Staff Agreement.

[55] The UFU submitted that decisions to restructure the CFA’s operations had been made prior to consultation with the union and that consultation since 11 July 2013 has been a sham as the union was not given notice of the subject on which its views were sought before the decision was made and that there has not been a meaningful opportunity afforded to the UFU to present the views of its members to the CFA 32. In this regard the UFU refers to the decision of the Federal Court in CEPU & Anor v QR Ltd, in which it was said;

“44. … The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

45. To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”. That this is the sense in which “consultation” is used in the QR Agreements is evident from cl 36.1 of the Traincrew Agreement”. 33

[56] The Court found the following in respect of when consultation is to occur;

“68. It was submitted on behalf of the QR employers that a feature of cl 36 was that consultation was not required unless the employer had made a definite decision to bring about change.

69. There is a distinct difference between a “proposal” to bring about change and a “definite decision” to bring about change. The former has about it a provisional quality; the latter does not. Regard to dictionary definitions of the word “proposal” bears this out. As used as a noun and in the context of cl 36, the definitions which are most apt for “proposal” are “a suggested or intended plan, scheme, or course of action; spec. one submitted formally for consideration” (Oxford English Dictionary, Online Edition) and “a plan or scheme proposed” (Macquarie Dictionary, Online edition). Insofar as “proposed” is an element of the latter definition, it carries with it the meaning of “put forward or suggested as something to be done” (Macquarie Dictionary, Online edition). So understood, the use of the word “proposal” is in complete accord with a clause directed to the subject of “consultation”. The construction for which the QR employers contend is not. A definite decision of one sort or another should follow consultation, not precede it (as to this, see also cl 36.6).

70. Further, a “proposal” is not to be equated with a detailed plan. A detailed plan may certainly amount to a proposal but something well short of that, as the dictionary definitions of the word bear out, may constitute a proposal. The word admits of a level of generality, of a strategic concept, not just operational plans”. 34

[57] The evidence of Ms Boyd, referred to earlier, is that there was not a proposal for change, until the CFA formed its proposals for change in July 2013. The evidence indicates that while the unformed options may have been crystallising, they were until July, not of a suggested or intended plan, scheme, or course of action.

[58] Within the context of an earlier dispute from 2002 involving the UFU and the Metropolitan Fire and Emergency Services Board, Senior Deputy President Drake made the following observations about consultation within the context of an arbitrated decision involving consultation about changes to training for emergency medical training;

[15] The MFB consulted with the UFU regarding this issue as required by the Agreement. Whilst I accept that the MFB had already determined that they wished to introduce the proposed change they did meet with the UFU and discuss the proposal. The MFB is not required to refrain from commitment to a course until the UFU has been consulted about it and has agreed to its implementation. Consultation within the context of this agreement can be satisfied by the MFB's making a decision about an appropriate course of action and then raising the matter for discussion at the Enterprise Bargaining and Implementation Committee (EBIC). Should opposition to a proposed change be experienced, particularly opposition likely to result in industrial action or other lack of co-operation, the MFB can notify a dispute in accordance with the Agreement. In this instance they did not take that step. They pressed forward with implementation of the proposed change, and then notified the dispute and lodged a section 127 application when faced with the predictable responses from the UFU. 35

[59] The cogency of SDP Drake’s observations and there connection with this matter is highlighted by the similar consultation provisions in the Agreement before Her Honour and that involved in these proceedings;

[22] Mr Friend submitted that the introduction of this change is inconsistent with the introduction of EMR between the parties. I do not believe this is the case. Nor do I believe that it is inconsistent with clause 11 of the Agreement which is set out hereunder:

"Where the employer has a proposal to introduce or implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement, the provisions of subclauses 9.2 and 9.3 will apply.

9. CONSULTATIVE PROCESS

9.1 Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

9.2 Enterprise Bargaining Implementation Committee

9.2.1 The parties are committed to effective consultation and communication throughout the MFESB. As a demonstration of that commitment the parties have undertaken to establish an Enterprise Bargaining Implementation Committee to facilitate the implementation of this Agreement and ongoing workplace reform.

…

9.2.5 The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No proposals for change arising from this Agreement shall be implemented without referral to the Enterprise Bargaining Implementation Committee.


…”. 36

[60] I am not satisfied on the evidence before me there was the full, meaningful and frank discussion of any issues, let alone the consideration of each party’s views either at any of the steps followed before making an application to the Fair Work Commission.

[61] Consideration of the procedural steps followed by a dispute notifier is relevant to the question of whether there is jurisdiction for the Commission to exercise determinative powers. This is because of the preferred construction of paragraph 15.2.6, to which I have already referred. The construction requires consideration of whether the matter is not settled following progression through the disputes procedure.

[62] Under paragraph 15.2.6, a matter can be referred to the Fair Work Commission for conciliation and arbitration “[i]f the matter is not settled following progression through the disputes procedure”. In relation to whether “the matter is not settled”, I have had regard to the evidence about the formation and progression of the dispute and the request from the CFA for further particulars about those things the UFU claimed were in dispute.

[63] In relation to whether there has been, in respect to any part of the Application, a progression through the disputes procedure, I am not satisfied that any aspect moved beyond Step 2 of the procedure. I am also not satisfied that there was consultation, as defined by the Operational Staff Agreement, in any respects between the UFU and the CFA in the manner envisaged in Step 3 of the disputes procedure. I am also not satisfied there was a sufficient submission of the dispute or its particulars to the CFA’s Manager Employee Relations, or a convening of a meeting between the parties with the endeavour of reaching a satisfactory settlement.

[64] The absence of meaningful particulars about the expansion of the dispute to actual changes or intended changes to “reporting lines, workload and resources” means that, at the point the dispute was notified to the Fair Work Commission, it was not a live part of the grievance being agitated through the dispute resolution process. The words were too wide to have meaning within the context of the issues alleged to be in dispute in June. The failure to particularise the words when requested, or to give life to the issues actually disputed, means the dispute resolution process was not being followed and I am therefore unable to find “the matter is not settled following progression through the disputes procedure”.

[65] While the allegation that anticipated changes to the line management of the BASC administrative employees has some precision, the absence of meaningful particulars about the impact of the changes on staff employed under the Operational Staff Agreement means that it follows I am also unable to find “the matter is not settled following progression through the disputes procedure”.

[66] For the same reason, I am also unable to find the instructor aspects of the UFU Application are matters “not settled following progression through the disputes procedure”.

[67] As a result, I find there is no jurisdiction for the Commission to consider the orders proposed by the UFU.

The CFA Application

[68] The CFA Application contains two essential element. Firstly, the application requests the Commission find that grievances notified by the UFU do not constitute grievances within the meaning of the disputes procedure. Secondly, it seeks a finding that the submission of the notified grievances is an improper use of the clause 15 disputes procedure.

[69] In relation to both elements of the CFA application, as a result of my finding of a lack of jurisdiction for the Fair Work Commission to determine the matters within the UFU Application, I consider it unnecessary for me to determine the CFA notification and appropriate instead to dismiss the application.

[70] The first aspect of the CFA notification falls away, and does not require a determination by the Commission, as a result of my findings in relation to the UFU notification.

[71] In my view, while the second element similarly falls away, and does not require a determination by the Commission, it raises some general issues about a party’s expectations on how the other will form and prosecute points of difference between them. There is no evidence before me that these matters have properly been the subject of attempts to ensure effective consultation between the parties in an effort to achieve a satisfactory resolution, when they properly should.

[72] For the reasons set out above, an Order dismissing each of the UFU and CFA applications is issued at the same time as this Decision.

COMMISSIONER

Appearances:

S Bingham, of Counsel, instructed by M Baldini, for the Applicant.

F Parry (SC) and B Lacy, of Counsel, instructed by B Mueller, solicitor, for the Respondent.

Hearing details:

2013.

Melbourne:

August 6, 14, 27.

 1   UFU Application for FWC to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, lodged 18 June 2013.

 2   CFA Application for FWC to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, lodged 1 July 2013.

 3   CFA Outline of Submission, 26 August 2013 (exhibit CFA 4), paras 2 and 3.

 4   Peter Lockwood, witness statement (exhibit UFU2), para 9.

 5   Transcript, PN 332.

 6   John Tipping, witness statement (exhibit UFU3), para 9.

 7   John Tipping, witness statement (exhibit UFU3), para 11.

 8   John Tipping, witness statement (exhibit UFU3), para 20.

 9   Fran Boyd, first witness statement (exhibit CFA1), para 19.

 10   Fran Boyd, first witness statement (exhibit CFA1), paras 33-35.

 11   Fran Boyd, second witness statement (exhibit CFA2), annexure FB18.

 12   Michelle Baldini witness statement (exhibit UFU1), annexure MB9.

 13   Michelle Baldini witness statement (exhibit UFU1), para 6.

 14   Michelle Baldini witness statement (exhibit UFU5), para 3.

 15   CFA Dispute Notification, 1 July 2013, Attachment 2.

 16   Michelle Baldini witness statement (exhibit UFU1), annexure MB3.

 17   Michelle Baldini witness statement (exhibit UFU1), annexure MB4.

 18   Michelle Baldini witness statement (exhibit UFU1), annexure MB5.

 19   Michelle Baldini witness statement (exhibit UFU1), annexure MB7.

 20   Michelle Baldini witness statement (exhibit UFU1), annexure MB8.

 21   Michelle Baldini witness statement (exhibit UFU1), annexure MB9.

 22   CFA Dispute Notification, 1 July 2013, attachment 2.

 23   Michelle Baldini witness statement (exhibit UFU1), annexure MB11 shows an email which refers to “attached correspondence” which has not been provided.

 24   Michelle Baldini witness statement (exhibit UFU1), annexure MB12.

 25   Michelle Baldini witness statement (exhibit UFU 1), annexure MB13.

 26   Fran Boyd witness statement, (exhibit CFA1), para 40 and annexure FB7.

 27   Fran Boyd witness statement (exhibit CFA1), paras 10-11.

 28   Michelle Baldini witness statement (exhibit UFU 1), annexure MB5.

 29   Michelle Baldini witness statement (exhibit UFU 1), annexure MB9.

 30   Michelle Baldini witness statement (exhibit UFU1), annexure MB11 shows an email which refers to “attached correspondence” which has not been provided.

 31   Michelle Baldini witness statement (exhibit UFU 1), annexure MB13.

 32   UFU Outline of Submissions (exhibit UFU6), para 4.

 33   CEPU & Anor v QR Limited [2010] FCA 591 (11 June 2010), per Logan J.

 34   Ibid.

 35   Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia, PR917280 (1 May 2002).

 36   Ibid.

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