United Firefighters' Union of Australia v Country Fire Authority

[2013] FWC 6546

[2013] FWC 6546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

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

Country Fire Authority T/A CFA
v
United Firefighters’ Union of Australia
(C2013/4950)

COMMISSIONER WILSON MELBOURNE, 4 SEPTEMBER 2013

Alleged dispute concerning Clause 13 and Clause 15 of the Agreement - consideration of procedural and interim decision

[1] I am dealing with two applications pursuant to s.739 of the Fair Work Act 2009 (the Act), made respectively by the UFU and the CFA for the Fair Work Commission to deal with a dispute arising under an enterprise agreement. Each notification relates to the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (AE881690) (the Operational Staff Agreement). The respective notifications, which are being dealt with conjunctively, 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 FWC 18 June 2013) (the UFU notification);



• 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 FWC 1 July 2013). (the CFA notification).

[2] The subject matter of the UFU notification is as follows;

“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 notification is broad, however as argued before me, it 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.

[4] The subject of the CFA notification is as follows (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

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

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



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



• even if it was, 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 notification that;



• it is also 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 notification.

[6] The Orders sought by the UFU are the following;

“1. By reason of the operation of section 589 of the Fair Work Act 2009 the Commission determines that:

1.1 Until determination of the dispute in C2013/4790 or a further determination, it is determined that:

(a) the Country Fire Authority (CFA) take no further steps pursuant to their timeline (described as Creating Our Future Together, the Next Steps – Proposed Timelines Attachment 6 MB25) other than consult with the United Firefighters’ Union of Australia (UFU) and its effected employees.

(b) Nothing in this interim determination will effect the CFA’s statutory obligations with respect to consultation.

2. A final determination that:

2.1 The CFA has failed to consult with the UFU as required by clauses 13 and 14 of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement (the Agreement) with respect to the restructure of the CFA (formally announced on 11 July 2013);

2.2 By reason of 2.1 it is determined that the CFA consult with the UFU and its employees in accordance with the terms of clauses 13 and 14 of the Agreement for a further period of 12 weeks from the date of the determination.

2.3 Nothing in this final determination will effect the CFA’s statutory obligations with respect to consultation”. 4

[7] The Orders sought by the CFA are the following;

“Pursuant to s.739(4) the Fair Work Commission determines that:

1. In order for a notification by a party covered by the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 [Agreement] to constitute the submission of a grievance or dispute by that party under clause 15 of the Agreement, the notifying party must provide in a timely way sufficient particulars of the dispute or grievance such as to give the other party a proper opportunity to know the basis upon which it is alleged that a grievance or dispute exists, including in appropriate cases:

(a) details of the term(s) of the Agreement which is or are relevant; and

(b) basic details of the respects in which the conduct of the opposite party is alleged not to be in accordance with the requirements of the Agreement.

2. Neither the notification of the “instructor grievance” nor the “BASC grievance” as defined in the CFA’s application dated 1 July 2013 constituted the submission of a grievance or dispute for the purposes of Clause 15 of the Agreement and accordingly the Fair Work Commission has no jurisdiction to deal with them.” 5

[8] The hearing of the matters was on 27 August 2013, with an earlier hearing on 14 August dealing with the subject of the issuing of orders for the production of documents.

[9] In the course of these hearings evidence was received that the CFA first sought consultation to end on 9 August 2013 (as had been advised by the CFA to the UFU on 19 July 2013). 6 This deadline was later extended by the CFA to 30 August 2013 (in correspondence to the UFU dated 1 August 2013).7

[10] In the hearing on 27 August, in relation to the CFA’s consultation deadline, Counsel for the CFA advised that;

“The instructions I have are as I said before, Commissioner, that the CFA is prepared to get the answers to the matters that have been raised by the UFU by close of business tomorrow, and to extend for one week the time in which it might make further suggestions”. 8

[11] The extension for one week of the time in which the UFU might make further suggestions means the consultation remains open at least until the end of 5 September 2013.

[12] Consultation under the Operational Staff Agreement is dealt with in several parts of the agreement, including Clauses 13 (Consultative Process), 14 (Introduction of Change) and 15 (Dispute Resolution). The clauses provide what is meant by consultation and the processes and mechanisms of consultation agreed to by the parties, however they do not prescribe time-limits.

[13] The UFU submitted that insufficient time had been allowed for consultation so far, saying;

“The documentation that has been provided indicates for all intents and purposes that the decisions in particular regarding the reduction of regions and the appointment of ACO’s 9 have been made and will be carried through. The UFU has had no opportunity to influence the decisions in that regard. In the timeframe proposed by the CFA, it could not be expected that there could be full and frank and meaningful consultation with its employees and as it terms the UFU, a stakeholder”.10

[14] Ms Bingham, of Counsel, for the UFU argued that the interim order it proposed would overcome this problem.

[15] Mr Lacy, of Counsel, for the CFA opposed the making of an interim order, arguing that in order to make an interim order, it would be necessary for the Commission to be satisfied the UFU has a strong case. 11

[16] The capacity of the Commission to make an interim decision is dealt with in s.589 of the Act, which reads;

589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.

[17] Also relevant to the question of an interim decision are the provisions of s.577;

577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a

manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

[18] Section 739 is also relevant to my consideration of the matter, for the reason that in subsection 739(3) there is the requirement; that “[i]n dealing with a dispute, the FWC must not exercise any powers limited by the term.” The use of the word “term” is a reference to the provisions of s.738, which sets out that the relevant Division of the Act applies if:

“(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)”

[19] The Operational Staff Agreement sets out the dispute resolution term in clause 15 and the empowerment of the Fair Work Commission to deal with disputes is within cl. 15.2.6, which provides;

“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.”

[20] Because of the provisions of the subclause, I am satisfied there is not a limitation on the exercise by the FWC of its powers because of the dispute resolution term.

[21] In considering whether it is appropriate for an interim decision to be issued by the Commission, I take into account the evidence provided to me by each party as to the subject matter of their notifications, together with the views put forward by the CFA about the implications of delays to their decision-making. I also take into account the parties’ jurisdictional challenges to each other’s claims as well as the legislative framework.

[22] In relation to the subject matter of the dispute, and without the intention of either determining or trivialising either party’s case, I note the core of the notifications surrounds the adequacy and timing associated with consultation on important workplace issues.

[23] The need for, and benefit of, consultation on workplace issues is well recognised. For example, s.205 of the Act requires that a condition for the approval of an enterprise agreement by the Fair Work Commission is that a consultation term must be included in an enterprise agreement. If an enterprise agreement fails to provide for such a term, the prescribed model consultation term is taken to be a term of the agreement. I therefore take into account that the furtherance of appropriate consultation is important in any decision I make.

[24] While the parties themselves recognise that consultation is desirable, they are apart on how the consultation is to be undertaken and over what period. They invite findings from the Fair Work Commission either that consultation has not taken place, when it should; or that the processes of consultation have not been followed, or followed improperly.

[25] The CFA submits that further delays to its decision making will cause problems for the Authority, not the least being that delays potentially push the implementation of any change beyond the coming fire-season. The CFA argues as well that its governance and community obligations are such that it must consult not only with employees, but with volunteers and other stakeholders. These are reasonable propositions on the part of the CFA that ought be taken into account, which I do.

[26] Each party has questioned the jurisdictional capacity for the other’s notification to proceed either in whole or in part. While I am yet to make any findings in relation to the jurisdictional matters, a reading of the submissions of the parties in these respects shows the questions are significant and, if found to be correct, have the potential to significantly alter the position of either party. As a result, it is appropriate I structure my consideration of the matters before me so there may be an orderly and timely resolution of both the jurisdictional issues and the substantive issues, ensuring that any interim decision I may contemplate does not cause prejudice to the final determination of either set of issues in any respect.

[27] I have above referred briefly to the relevant legislative framework, and I particularly take into account the need as set out in s.577 of the Act for the Fair Work Commission’s functions to be exercised in a manner that includes being fair and just; quick and informal; and promoting harmonious and cooperative workplace relations.

[28] I am satisfied that a further short, but limited opportunity should be allowed for the UFU to seek such additional information and put such views on behalf of its members as it wishes. Such a period would be consistent with the objectives of the Operational Staff Agreement around consultation and dispute resolution. It does not preclude, and should not be seen as doing so, a grant by the Fair Work Commission of the relief sought by either party. Providing a further short period of consultation will, however, ensure that I am able to properly consider and determine each of the notifications before me.

[29] Consideration of the above matters leads me to be satisfied it is appropriate in all the circumstances for me to make an interim decision in relation to the matters before me. I consider that I should extend the consultation period on the matters that are the subject of the UFU notification for a short time in order for me to conclude my determination of all matters arising out of both the UFU and CFA notifications.

[30] As a result, I have decided I will order the following;

In accordance with the Decision issued by the Fair Work Commission on 4 September 2013 ([2013] FWC 6546; PR 541238), the Fair Work Commission orders pursuant to section 589 of the Fair Work Act 2009 that:

(1) Consultation pursuant to, and within the meaning of, the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (the Agreement) on the matters set out in the Schedule to this Order is to continue until Monday 16 September 2013 at 12.00pm.

(2) The CFA is to take no steps to make final any decision on a matter set out in the Schedule until after the expiry of the time period in item 1.

(3) The parties who are to participate in the consultation are the persons to whom the Agreement applies, as set out in Clause 6 of the Agreement, namely;

6.1.1. The Country Fire Authority (CFA) and any successor, assignee or transmittee of all or part of the CFA’s business or activities (whether or not that successor, assignee or transmittee is engaged in the business of fire prevention or suppression).

6.1.2. The United Firefighters Union of Australia (Victoria Branch) (UFU),

and

6.1.3. All employees who are engaged in or performing work that is or may be performed by an employee engaged in a classification or occupation referred to in this agreement.

SCHEDULE

The matters to which this Order applies are;

1. The matters referred to in the first paragraph of item 4 (“What is the dispute about?”) of the UFU Application for FWC to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, 18 June 2013, (matter number C2013/4790) namely:

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.

2. The matters set out the CFA CEO blog to staff, dated 11 July 2013 (Annexure FB7 in the witness statement of Fran Boyd, Exhibit CFA1)

[31] An Order to this effect will be issued separately to 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, 18 June 2013.

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

 3   CFA Outline of Submission, 26 August 2013, paras 2 and 3.

 4   UFU Proposed Determination, 28 August 2013.

 5   CFA Proposed Determination, 28 August 2013.

 6   Witness statement of Fran Boyd (Exhibit CFA1), para 50 and Annexure FB10.

 7   Boyd, CFA1, para 56 and Annexure FB16.

 8   Transcript, PN1041.

 9   Assistant Chief Officer, one of the new proposed positions.

 10   Transcript, PN855.

 11   Transcript, PN1060.

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