United Firefighters' Union of Australia v Country Fire Authority
[2013] FWC 5784
•16 AUGUST 2013
[2013] FWC 5784 |
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)
Fire fighting services | |
COMMISSIONER WILSON | MELBOURNE, 16 AUGUST 2013 |
Alleged dispute concerning Clause 13 and Clause 15 of the Agreement - Production of Documents.
[1] Two applications for the Fair Work Commission to deal with disputes pursuant to the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (AG 2010/18161) (Operational Staff Agreement) were filed by the Country Fire Authority (CFA) and the United Firefighters Union of Australia (UFU) in June and July 2013.
[2] The applications were as follows:
(1) 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).
(2) 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).
[3] These applications (referred to as “the substantive proceedings”) have been set down for hearing by me for three days commencing on 27 August 2013.
[4] In order to properly understand the context of this decision, I first set out some of the particulars of these matters. The applications filed by the parties in the substantive proceedings record they deal with following alleged disputes;
- C2013/4790 - UFU notification
- C2013/4950 - CFA notification (referred to in part only)
“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
“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] The applications have been made to the Fair Work Commission pursuant to the provisions of the Operational Staff Agreement’s Clause 15 (Dispute Resolution). Amongst other things, that Clause 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”.
[6] The Clause fits under the framework of section 739 of the Fair Work Act 2009 (the Act), which provides:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute”.
[7] This decision is a procedural step in preparing the substantive proceedings for hearing, namely, I am required to determine the application of the UFU for the Fair Work Commission to issue, pursuant to section 590(2)(c) of the Act, Orders Requiring Production of Documents. The CFA opposes both the issue of orders in the form proposed by the UFU, or at all.
[8] Section 590 of the Act provides:
“590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or the Minimum Wage Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593)”.
[9] The combined effect of Clause 15 of the Operational Staff Agreement and s.739 of the Act is to empower, and not limit in any material respect the making of an Order Requiring Production of Documents.
[10] Noting that the power for the production of documents is discrete and not mandatory, 3 the proper approach to this matter is to first understand the scope of the dispute requiring arbitration. In relation to the question of its approach, the Tribunal has noted;
“[4] Before the scope of any order to produce documents can be determined, the scope of the dispute that the Tribunal is being asked to settle needs to be understood as it is within this context that any such order should be issued. Understanding the scope of the dispute will reduce the chances of an application for orders to produce documents becoming onerous. It should be stressed that my decision with respect to the scope of the dispute is an interim view that I have formed, based on submissions made in respect to the application for these orders, for the purposes of finalising the order for production of documents. The scope of the dispute to be settled will be subject to further consideration following the hearing of detailed arguments and evidence from the parties with respect to the dispute proper”. 4
[11] I consider it is appropriate for me to follow the above approach in this matter. In doing so, I too note that articulation of an understanding of the dispute on my part can only be an interim view, since the issue of whether there is a dispute, or what its nature may be, will require consideration when the substantive proceedings are heard.
[12] The CFA submitted that it is for the UFU to coherently describe what the dispute now is. 5 However, the nature of these proceedings is such that this has not happened to date. As a result, it is necessary for me to test the boundaries of the dispute in order to decide whether the discretion evident in section 590(2)(c) of the Act should be exercised.
[13] The UFU matter was filed in the Fair Work Commission on 18 June 2013. Ms Baldini, an industrial officer with the UFU, prepared a comprehensive witness statement in support of the union’s application for Orders Requiring Production of Documents. Ms Baldini’s witness statement was admitted to the evidence by agreement of the parties and includes reference to:
- a letter from Mr Cordova dated 27 November 2012; 6 and
an email from Mr Schmidt dated 2 April 2013. 7
[14] The letter from Mr Cordova is couched as referring to a review of support services (which staff work under another enterprise agreement), indicating that consultation under the CFA Professional, Technical and Administrative Agreement 2011 (the PTA Agreement) may be initiated as a result. The letter says:
“Dear Peter
Re: Regional Services Delivery
CFA write to advise that it has decided to review the delivery of some of its support services with the view of moving to an “embedded services” model. This review will include an analysis of the financial services, asset maintenance and people and culture services across CFA regions. CFA has identified potential benefits that could be achieved in adopting an “embedded services’ model.
The term “embedded services” means a model in which existing staff report more directly to CFA Headquarters in their functional role. The potential advantages of such a model are; increased consistency in processes and outcomes, greater sharing of expertise and resourcing, greater consistency in the application and interpretation of policies and procedures.
The period of analysis will commence shortly, and conclude in March 2013.
Should this analysis produce conclusions or recommendations which may lead to significant workplace change or significant effect on employees as contemplated at Clause 11 of the “CFA Professional, Technical and Administrative Agreement 2011” CFA will initiate formal consultative processes detailed therein.
The analysis will be conducted internally within each of the service areas mentioned above, and will be considered by the Executive Directors responsible for the functional areas. Those Executive Directors are Ms. Fran Boyd [Executive Director People and Culture] and Mr. Michael Wootten [Director Finance and Administration].
CFA will provide further advice to your organization as the analysis proceeds. However, if you have any questions from this first advice feel free to contact me direct on [telephone number].
Alternatively, if you wish to meet to discuss the matter, please contact me directly and I will arrange for a meeting time.
Yours sincerely
Peter Cordova”
[15] The email from Mr Schmidt also refers to changes to support services and advises recipients of changes as follows:
“Hi all,
As you are well aware, we have been steadily moving towards improving our service delivery under the banner of Fire and Emergency Management (F&EM). The bringing together of CFA departments to work closer together in a more unified approach to our service delivery is a positive step. Part of this strategy is working closer together between the traditional structures such as Operations and Community Safety. To support this approach, CFA is refining service delivery management to provide better service to our Groups and Brigades.
Based on previous surveys and workshops both locally and more broadly across CFA, it has been well recognised that Brigade Administrative Support Officers (BASO) would be better aligned under a streamlined management structure. For many, the following announcement is probably long overdue, however the timing and readiness to transition seamlessly is important. Now that we are on the other side of what has been an extremely busy bushfire season, the time to make this move is now.
As of today (2 April), our Brigade Administrative Support Coordinator (BASC) will now report directly to the Operations Manager, effectively no longer reporting to the Manager of Community Safety. With exception to our OM and BASC, there will be little immediate change noticeable. BASOs will continue as per past practice to be directly line managed by the BASC. The strong reporting relationship between Operations Officers and BASOs will continue to strengthen under the leadership of OM as we further progress this important work. Our Manager Community Safety will work closely with the OM to ensure that previous support provided through BASO assistance in the areas of Community Safety still occur.
It is pleasing to make this announcement that I’m sure many would agree off the back of previous workshops that this improvement to our local service delivery has been long overdue. It should also be recognised this is only the first of a number of steps to improve the delivery of services to Group and Brigades. Further local workshops in coming months will build on this announcement as we continue to evolve an improved management structure.
This change moves a step closer to the Regional implementation of the Fire & Emergency Management Team structure in Southern Metro which in time will incorporate a closer alignment to the Headquarters F&EM functionality and Community Capability capacity.
I ask that Operations Officers and Group Officers please disseminate this message through your networks.
Should you have any queries, please don’t hesitate to contact me.
Regards,
Peter”
[16] The UFU views, and continues to view, the 2 April 2013 email as confirmation of what it says its members working under the Operational Staff Agreement had been telling it for some time; namely that decisions to make changes to the CFA’s reporting lines, workload and resources (which affected employees working under the Operational Staff Agreement) had been taken and that the proper or required consultation had not taken place. In referring to this, I make no findings of whether the UFU’s view is accurate or whether the imputed decisions of the CFA were made or not; whether they affected operational staff or not; or whether consultation had taken place or not.
[17] The CFA’s evidence in these proceedings has been provided by Ms Fran Boyd, Executive Director of People and Culture with the CFA, which was also admitted to the evidence by agreement of the parties. Her evidence is also in the form of a witness statement with extensive attachments. Ms Boyd’s statement includes the view that the review initiated in November 2012 did not affect operational staff and related to staff engaged under the Professional, Technical and Administrative Agreement 8. Ms Boyd’s witness statement includes a blog posting by the CFA chief executive, Mick Bourke, dated 11 July 2013, which provides, in part, the following information9;
- Consolidate support services activities and combine similar functions and resources. We have already been speaking with you about how this might work for Finance, People and Culture, and Asset Maintenance but now want to extend this to the administration and scheduling of Training and Development.
- Transfer responsibility for support services from Fire & Emergency Management (F&EM) to the relevant support directorates to free F&EM up to focus on service delivery.
- Allocate resources by workload, not location.
- Move from eight to five regions, with no change to districts. The regions would be:
- South West: Barwon South West renamed.
- West: Grampians renamed.
- North West: Loddon Mallee and Northern & Western Metro.
- North East: Hume and Eastern Metro
- South East: Gippsland and Southern Metro
- Revise our service delivery model so that responsibilities are as follows:
- Brigades: frontline service delivery.
- Group: brigade coordination and local command.
- District: service delivery and brigade support.
- Region: emergency management planning and coordination of service delivery.
- State Support Centre: strategy, policy and support service delivery.”
“Delivering business improvements and an effective operating model are two core goals of CFA's 'Creating Our Future Together' strategy.
For a few years now, we’ve been exploring ways of making CFA more efficient and effective, and as a result, implementing changes accordingly, always with the aim of making CFA a more sustainable and agile organisation. As a business, we will continue living within our means now and into the future.
I know there's been uncertainty at times about the next steps in this strategy, however we don't say much until we really have something to say and now is the time to speak with you, our broader CFA team about our plans going forward.
There's a fair bit of information in what we're proposing, so I will only outline below the key proposed actions and why we think they're important- for more detail please watch this short video.
What are the proposed actions?
The actions we’re proposing carry on the work we’ve already started around supporting the Chief Officer in service delivery. To date we’ve established service delivery capability under the Chief. We’re now making sure we have the most effective support capability to best enable this.
Some elements of the new proposed service delivery and support model will already be familiar to you, such as the consolidation of support services activities. Other will be new.
We will see changed management and control of statewide support services at Burwood East Headquarters (which will become known as our State Support Centre) and in the regions. Support staff in districts, regions and the State Support Centre will focus on supporting service delivery. These changes will evolve through natural attrition and more consistent and modern systems and processes.
Keeping our members and communities safe remains our priority.
In summary, we’re looking to:
[18] The Operational Staff Agreement provides the following about consultation;
“13 CONSULTATIVE PROCESSES
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.
13.2. CFA / UFU Consultative Committee
The parties agree to establish a CFA/UFU Consultative Committee comprising people involved in the decision making processes of both organisations. The Committee’s terms of reference, membership and working arrangements will be negotiated by the parties within six months of this agreement being lodged.
13.3. Enterprise Bargaining Implementation Committee
13.3.1. The parties are committed to effective consultation and communication throughout the CFA. As a demonstration of that commitment, the parties have undertaken to continue to operate an Enterprise Bargaining Implementation Committee (EBIC) to facilitate the implementation of this agreement and ongoing workplace reform.
13.3.2. The Committee comprises equal numbers of management and employee representatives as determined by the respective parties, and decision-making will be by consensus.
13.3.3. There is an obligation on Committee members to cooperate positively to consider matters that will increase efficiency, productivity, competitiveness, training, career opportunities and job security.
13.3.4. The Committee will program meetings on a regular basis (initially at least monthly) and communicate the outcomes of meetings to employees covered by this agreement.
13.3.5. 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.
13.3.6. The aims of the Enterprise Bargaining Implementation Committee will be to:
(a) consult where provisions in this agreement require consultation:
(b) monitor the implementation of this agreement.
(c) consider and make recommendations regarding issues arising under this agreement.
(d) provide a mechanism for employee input into the implementation of this agreement. Thus providing an opportunity to utilise employee knowledge and experience to provide a mechanism for improving communication and cooperation between the CFA and its employees.
13.3.7. The Committee may, by agreement, alter its size and/or composition or establish working parties to research and make recommendations on specific issues for determination by EBIC at a later date.
13.4. Operation of Consultative Committees
13.4.1. Consultative Committees convened under this agreement will meet at times and localities which cause the least disruption to the operations of the Authority.
13.4.2. Where the UFU nominees are serving Authority employees the following will apply:
(a) When the employee is on duty, arrangements will be made to facilitate his or her attendance at meetings without loss of pay.
(b) When a meeting occurs while the employee is off duty, the employee will be paid for the time involved at overtime rates.
13.4.3. There is not a set number of representatives for any Committee.
Nomination will be consistent with the task to be undertaken and the required expertise.
13.4.4. All Committees established under this agreement are recommendatory in nature and will operate on the basis of consensus when developing recommendations.
13.4.5. When a UFU representative who is a CFA employee travels to a meeting on days when the person is not on duty, the following shall occur;
(a) The person shall be provided with a vehicle to enable him/her to travel to the meeting. This shall be by way of CFA car or hire car to travel to and from the meeting. As a last resort the person may by agreement use his/her own vehicle and receive the appropriate vehicle allowance as prescribed in the agreement for each kilometre travelled;
(b) In the case of a person who requires air travel he/she shall be provided with air travel from his/her location to Melbourne and return. Such transport shall be arranged and paid for by the CFA. Travel to and from the airport to the meeting venue shall be provided by way of car hire or taxi as appropriate.
(c) Payment for travel time shall be as provided for in this agreement based on the distance between the persons work station and the station at which the meeting is being held or at a station of equivalent distance where the meeting is being held at a venue which is not a current career fire station.
(d) Payment for the time spent flying to and from the person's location to Melbourne Airport will be paid for at single time rates. In addition, the allowance prescribed in this agreement is to be paid for travel from Melbourne Airport to the meeting and return.
(e) Employees travelling to and from the same work location are to travel in the same vehicle wherever possible.
(f) The above matters in 13.4.5 with the exception of payment of airfares and transport for employees requiring air travel and vehicle allowance for the use of private vehicles are to apply when CFA employees who are UFU representatives attend meetings on days when they are not on duty.
(g) UFU will normally limit participation by CFA employees to no more than three on the basis that CFA will not unreasonably withhold agreement to UFU requests for greater numbers of participants. Requests for more than three representatives must be agreed between the parties before the relevant meeting occurs.
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.”
[19] It will be seen from the above that clause 14 provides that certain matters are to be dealt with in accordance with clause 13, if the matter contains these essential elements;
(1) they involve the implementation of significant change; and
(2) they pertain to the employment relationship; and
(3) they relate to workplaces covered by the Operational Staff Agreement.
[20] In the absence of any evidence or submissions to the contrary, I find that the matters discussed within Mr Bourke’s blog posting of 11 July 2013 meet the threshold tests within clause 14 and that, in respect of those matters, the provisions of clause 14 have been triggered, which in turn trigger the processes and actions in clause 13.
[21] It is not necessary for the purposes of this decision to find whether the CFA regarded clause 14 to have been triggered or that consequently it followed the processes and actions in clause 13.
[22] Clause 13, while extensive, has one relevant provision requiring action by the CFA, namely:
“13.3.5 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”.
[23] The CFA made the entirely valid point in respect to this clause that it only requires “referral” of proposals for change to the Enterprise Bargaining Implementation Committee (EBIC) before implementation. The clause does not require proposals to change to be agreed before implementation. 10 Nonetheless it does require proposals for change to be referred.
[24] After considering the material before me, and taking into account the framework of the consultation and introduction of change provisions in the Operational Staff Agreement, my understanding of the scope of the dispute is that it relates to whether the CFA has failed to consult in the manner envisaged by the Agreement over proposals for change that would affect reporting lines, workload and resources of operational staff employees.
[25] Having indicated my understanding of the dispute in these terms, I proceed to apply this understanding both to the terms of the Operational Staff Agreement, and the UFU’s proposed Orders for the Production of Documents. I use the understanding I have articulated in forming my decision on whether and how such Orders could be framed.
[26] Within the construct of my understanding of the above clause and the scope of the dispute I have set out, proposals for change of a sufficient threshold may not be implemented without referral to EBIC. To put it another way, the UFU may have a legitimate dispute for determination by the Fair Work Commission were proposals for change to be implemented without referral to EBIC, as required by clause 13.3.5. Conceivably, some proposals for change that have been implemented may be readily apparent to all concerned (as will be the question of whether or not the issue has been referred to EBIC). However, some may not. And in any event EBIC is entitled to see proposals for change before they are implemented.
[27] In considering the question of orders for production of documents I take into account the matter of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v Emergency Transport Technology Pty Ltd 11wherein Justice Cowdroy considered the test to be applied in setting aside a subpoena. His Honour stated:
“The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely:
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].” 12
[28] Whether material sought by the UFU has apparent relevance to the substantive proceedings can be ascertained by considering the understanding of the dispute I have articulated above, together with the relevant consultation processes and introduction of change provisions of the Operational Staff Agreement.
[29] The CFA argues that the proposals for change relevant to the Operational Staff Agreement about which it has formed a view are those set out in Mr Bourke’s blog posting of 11 July 2013, and that it is in the process of consulting about those proposals. On the other hand, the UFU contends that it was put on notice of forthcoming change in Mr Cordova’s letter to the union dated 27 November 2012 (albeit in regard to support staff) and that it became aware in April 2013 that decisions had been taken by the CFA in this regard. It argues these possible changes to support staff arrangements will affect people working under the Operational Staff Agreement. At this stage of the proceedings, I am not able to make any findings about either proposition.
[30] A proposal for change decided upon by the CFA and relating to the Operational Staff Agreement, which is connected with the key proposed actions set out in Mr Bourke’s blog posting but which has not been referred to the EBIC, in my view has, or is likely to have, apparent relevance to the substantive proceedings. In such a case, the UFU ought to be able to establish the existence of the proposal to change, if necessary through the production of documents.
[31] The understanding of the scope of the dispute I have referred to above, invites a view that it relates to the period between at least 2 April 2012 (when the union says it thought Mr Schmidt’s email confirmed what it had heard about decisions already taken and affecting people working under the Operational Staff Agreement) and 11 July 2013 (when Mr Bourke published his blog outlining what he called “key proposed actions”). Proposals for change from a point shortly before the start of that period which had not been referred to EBIC before implementation, or at all, are likely to be connected with the subject matter of the UFU dispute notification and sufficiently connected to be within the scope of an order for the production of documents.
[32] Since an order for the production of documents in this matter would necessarily refer to a range of dates over which documents may have been prepared or considered, it is necessary to consider the issue of what is an appropriate range of dates. Should an order be made, I consider it appropriate for it to refer to a period starting before 2 April 2013, on the basis that Mr Schmidt’s email may be confirming decisions taken earlier than 2 April, but still proximate to that date. I consider that it would not be reasonable for the starting date for the consideration of relevant documents to be as distant as 27 November 2012 (when Mr Cordova sent his letter).
[33] As a result, I consider 1 March 2013 to be an appropriate starting date for the consideration of relevant documents, and I consider 11 July 2013 to be the appropriate end date.
[34] In considering the issue of an order requiring the production of documents, I recognise it is necessary to ensure any Order made by me is not seriously and unfairly burdensome or prejudicial. Not every document and not every hypothesis of change ought to be included within an order. Rather, the Order should be restricted to those matters which are within the scope of activities about which the Operational Staff Agreement requires consultation. As I have set out above, clause 14 requires the processes of clause 13 to be followed where the employer wishes to implement significant change. In my view therefore, it is proper for any Order to be limited to documents which relate to proposals for change that would implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by the Operational Staff Agreement.
[35] In consideration of framing an order in this way, I note that neither the words “proposal” or “change” or the phrase “proposal for change” are the subject of definition in either the Operational Staff Agreement or the Act.
[36] The proper approach in resolving a question about the meaning of words in an industrial instrument is for consideration to first be given to the language of the Agreement. 13
[37] In considering what a “proposal for change” might mean within the context of the Operational Staff Agreement, I have referred to the Macquarie Dictionary which defines “change” and “proposal” in various ways, including the following:
“Change verb 1. to make different: alter in condition, appearance, etc; turn: 2. to substitute another or others for; exchange for something else: ... ” 14
“Proposal noun 1: the act of proposing for acceptance, adoption or performance. 2. a plan or scheme proposed ...” 15
[38] Following from this, a “proposal for change” is something relatively firm; something which is more than an idea or an unformed option floated but not developed or discarded before adoption. For the purposes of considering an Order Requiring Production of Documents, and within the context of the understanding of the dispute I have developed above, I consider a “proposal for change” should be viewed as something proposed for acceptance or adoption and which, if implemented, would be significant change. EBIC referral is necessary before implementation; however it may follow that something which is not to be implemented may not need referral.
[39] I take into account the submissions and evidence of the parties about the CFA’s decision-making process and note that decisions of the nature that appear to be within my understanding of the dispute are taken either by the Board of the Authority, the Chief Executive Officer (CEO) or the Executive Leadership Team (ELT) (or some combination of these) 16. As a result, in consideration of the need not to seriously or unfairly burden or prejudice the CFA through any order I contemplate, I consider it appropriate to restrict the Order to documents dealt with by the Board, CEO, or the ELT.
[40] The UFU proposed two orders, one on the CEO of the Authority and one on the Chairperson. It was not put to me that it is necessary for there to be two orders or why they should be different, and in view of the description of the functions of the Authority set out in Ms Boyd’s statement 17, I discern no utility in separating in this way any orders I may contemplate.
[41] I turn to the content of each proposed Order.
Acting Chairperson
1. All Documents including minutes of meetings the Authority for the period September 2012 - 11 July 2013 in so far as they record proposals, deliberations and/or determinations of the Authority with respect to a review of operations including:
(a) Proposals for an “embedded services model”; and/or
(b) Proposals for a Delivery and support services model.
2. All Documents including briefing papers how so ever described provided to the Authority for the period September 2012 - 11 July 2013 in so far as they pertain to a review of operations including:
(a) Proposals for an “embedded services model”; and/or
(b) Proposals for a “delivery and support services model”,
including and not limited to briefing notes prepared by Fran Boyd, Michael Wooten and/Joe Buffone.
[42] While I consider the Minutes of the Board of the Authority to have apparent relevance to the substantive proceedings and to potentially not seriously or unfairly burden or prejudice the CFA, the scope of the proposed sub-order 1 is beyond the understanding of the dispute I have developed above, and relates to a more extensive timeframe. I therefore consider it inappropriate to exercise my discretion and grant an order in the proposed terms.
[43] I consider some of the documents indicated in the proposed sub-order 2 to have apparent relevance to the substantive proceedings, however the scope of the indicated documents is likely to be wide and it is likely that at least some documents so caught may not have apparent relevance. Because of the breadth of the proposed sub-order; the fact its scope is beyond the understanding of the dispute I have developed above; and because it relates to a more extensive timeframe, there is the potential for a grant of the order to seriously or unfairly burden or prejudice the CFA. I therefore consider it inappropriate to exercise my discretion and grant an order in the proposed terms.
Chief Executive Officer
1. All Documents for the period September 2012 - 11 July 2013 in so far as they record budgetary and financial costings, how so ever described in so far as they relate to:
(a) Proposals for an “embedded services model”; and/or
(b) Proposals for a “delivery and support services model”.
2. All Documents for the period September 2012 - 11 July 2013 in so far as they pertain to a review of operations including:
(a) Proposals for an “embedded services model” and/or
(b) Proposals for a “delivery and support services model”.
3. All Documents for the period September 2012 - 11 July 2013 in so far as they pertain to a proposals referred to “Creating our Future Together”.
4. All Documents including but not limited to minutes of Committees, however described constituted to review delivery and support services in the period September 2012 - 11 July 2013.
5. All Documents recording an analysis delivery and support services for the period September 2012 - 11 July 2013 including but not limited to any analysis under taken by:
(a) Fran Boyd or her delegates in People and Culture;
(b) Michael Wootten or his delegates in Finance and administration; and
(c) Joe Buffone or his delegates in Readiness and Response.
[44] I consider some of the documents indicated in the above proposed order to the CEO to have apparent relevance to the substantive proceedings, however the scope of the indicated documents is wide and it is likely that some or many documents so caught may not have apparent relevance. Because of the breadth of the proposed order; the fact its scope is beyond the understanding of the dispute I have developed above; and because it relates to a more extensive timeframe, there is the potential for a grant of the order to seriously or unfairly burden or prejudice the CFA. I therefore consider it inappropriate to exercise my discretion and grant an order in the proposed terms.
[45] As a result of this analysis, and my foregoing discussion, I consider it appropriate in all the circumstances to not issue an Order in the form proposed by the UFU. However, consistent with my reasons indicated above, I consider it appropriate in all the circumstances to instead issue an Order to be issued on the Country Fire Authority, but in different terms.
[46] For the reasons I have referred to above, I consider it appropriate in the all the circumstances;
- for an Order to be issued on the CFA;
- for that Order to refer to documents which relate to proposals for change that would implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by the Operational Staff Agreement;
- for the Order to be limited to documents considered by the CFA’s Board, Chief Executive Officer or Executive Leadership Team;
- for the Order to relate to a period from 1 March 2013 to 11 July 2013; and
- for the Order to require the production of documents to the Fair Work Commission by 4.00pm on 21 August 2013.
[47] Ordinarily, the FWC issues such orders in accordance with Form F52, which contains a schedule that identifies the documents, records or other information the named party must provide. I will issue an Order with a Schedule in the following terms;
SCHEDULE
1. INTERPRETATION
In this Schedule;
a. “CFA” means the Country Fire Authority;
b. “Operational Staff Agreement” means the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010;
c. “Relevant period” means the period from 1 March 2013 to 11 July 2013, both dates inclusive.
2. DOCUMENTS, RECORDS OR OTHER INFORMATION REQUIRED TO BE PRODUCED
All documents, records and other information being proposals for change that would implement significant change in matters pertaining to the employment relationship in any of the workplaces covered by the Operational Staff Agreement that were considered by the Board, Chief Executive Officer or Executive Leadership Team of the CFA during the relevant period, OTHER THAN proposals for change that the Board, Chief Executive Officer or Executive Leadership Team of the CFA decided would not be considered further or not be implemented.
[48] An order to this effect shall be issued in conjunction with 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.
1 UFU Form F10.
2 CFA Form F10; note that only sub-item (1) is reproduced from item 4 of the Form. The item contains another 11 sub-items.
3 Patrick Stevedores No. 2 Pty Limited, Ross VP, AIRC Print P8680, (6 February 1998), cited in SPI Power Net Pty Ltd; SPI Electricity Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Bissett C., [2012] FWA 4350, [18].
4 ibid, at [4].
5 Transcript, PN247.
6 Witness statement of Michelle Baldini, attachment MB1.
7 Witness statement of Michelle Baldini, attachment MB2.
8 Witness statement of Fran Boyd, para 24.
9 Witness statement of Fran Boyd, Attachment FB7.
10 Transcript, PN262.
11 [2011] FCA 181.
12 SPI Power Net Pty Ltd; SPI Electricity Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2012] FWA 4350, [19] citing Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v Emergency Transport Technology Pty Ltd [2011] FCA 181.
13 see Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths, [2013] FWCFB 2814, at [12] and [13].
14 Macquarie dictionary 5th edition, 2009 – partial and relevant definitions only included.
15 Macquarie dictionary 5th edition, 2009 – partial and relevant definitions only included.
16 Witness statement of Fran Boyd, paras 12, 13, and 17.
17 Witness statement of Fran Boyd, paras 12 and 13.
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