United Firefighters' Union of Australia v Country Fire Authority
[2012] FWA 8835
•17 OCTOBER 2012
[2012] FWA 8835 |
|
DECISION |
Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute
United Firefighters' Union of Australia
v
Country Fire Authority
(B2012/985)
COMMISSIONER ROE | MELBOURNE, 17 OCTOBER 2012 |
Bargaining dispute related to the proposed Country Fire Authority United Fire Fighters’ Union Managers Community Safety Enterprise Agreement 2012 - outstanding matters.
[1] The United Firefighters’ Union of Australia (UFU) has applied under Section 240 of the Fair Work Act 2009 for the Tribunal to assist in resolving a bargaining dispute related to the proposed Country Fire Authority United Fire Fighters’ Union Managers Community Safety Enterprise Agreement 2012 (the proposed Agreement).
[2] Fair Work Australia has assisted the Country Fire Authority (CFA) and the UFU in a number of conciliation conferences. This has reduced the number of issues of difference between the parties.
[3] The parties as part of this process have agreed pursuant to Section 240(4) of the Fair Work Act 2009 that I should determine the appropriate underlying award for the purpose of the Better Off Overall Test (BOOT).
[4] The submissions by the UFU and CFA together allude to the Fire Fighting Industry Award 2010 [MA000111] (the Modern Award) and the following pre-modern awards as possible reference instruments for the purposes of the BOOT:
1) Victorian Firefighting Industry Employees Interim Award 2000 [AP801881CRV] (Award 1).
2) Victorian Firefighting Industry Employees Interim Award 2000 [AT801881CRV] [Transitional] (Award 2).
3) The Country Fire Authority Administrative and Support Services Award 2000 [AP804874] (Award 3).
4) The Country Fire Authority Administrative and Support Services Award 2000 [AT804874] [Transitional] (Award 4).
[5] Awards 1 and 3 are considered to be ‘enterprise instruments’ (more specifically ‘enterprise pre-reform awards’). Award 4 is also considered to be an enterprise instrument (more specifically an ‘enterprise State reference transitional award’) while Award 2 is considered to be a ‘State reference public sector transitional award’
[6] Something further needs to be said about Award 1. At paragraph 66 of the Award Modernisation Statement dated 25 September 2009 the Full Bench of the AIRC stated that:
“It does not appear that that award [award 1] can be regarded as an enterprise award because the MFESB and CFA are separate legal entities and their relationship is not such as to permit them to be treated as a single business within the meaning of s.322 of the WR Act”.
However, in its subsequent Award Modernisation Decision dated 4 December 2009 the Full Bench stated at paragraphs 46 and 47 respectively that: “the legal position is not clear” and that “only a court can make a binding determination in that regard”.
[7] Given that Award 1 has not yet been terminated, we can assume it is an enterprise pre-reform award with continued application.
[8] Awards 2, 3 and 4 have not been terminated and continue to apply. Where these awards are found to apply, modern awards do not have coverage or application. However, Awards 2 and 4 only apply to non-constitutional corporations and although the decision is under Appeal I have found in [2012] FWA 7155, that the CFA is a constitutional corporation for the purposes of the Fair Work Act 2009.
[9] Coverage under Award 1 depends on:
1. An employee being a member (or eligible to be a member) of the UFU; and
2. Such an employee being employed in any of the classifications under the award; and
3. Such an employee being employed by the CFA or MFESB.
Coverage under Award 3 depends on:
1. An employee being a member of the ASU or APESMA; and
2. Such an employee being employed in any of the classifications under the award (excluding IT personnel); and
3. Such an employee being employed by the CFA.
[10] The classification or position ‘Manager Community Safety’ does not appear in either award. Award 1 classifications focus on firefighters and station officers, while Award 3 classifications focus on administrative staff, support staff and professional engineers. There is nothing to suggest that classifications of manager community safety or classifications with similar meaning or scope are covered by either award.
[11] In relation to coverage of the modern award the Full Bench said the following:
“ The award will have limited coverage. In States other than Victoria, and in the Territories, fire services are not “employers” within the meaning of s.6 of the WR Act. Nor are they “national system employers” within the meaning of the WR Act or the FW Act. In addition most, if not all, are covered by enterprise awards or enterprise NAPSAs. It follows that, as things presently stand, none of those fire services will be covered by a modern award for the fire fighting industry.” [Paragraph 65 of Award Modernisation Statement dated 25 September 2009]
“ It would seem that the CFA will not be covered by a modern award for firefighting made as part of the current process and we have received no submission to the contrary.” [Paragraph 66 of Award Modernisation Statement dated 25 September 2009]
“ However, in United Firefighters' Union of Australia and Others v Metropolitan Fire and Emergency Services Board 31 a single judge of the Federal Court held that the MFESB is a constitutional corporation by virtue of its trading activities. No party sought to challenge that decision and there is no contrary authority. We have therefore proceeded on the basis that the MFESB, being a constitutional corporation, is covered by the award modernisation process under Part 10A of the WR Act and will not be covered by the State reference public sector award modernisation process provided for in Schedule 6A to the Transitional Act.” [Paragraph 67 of Award Modernisation Statement dated 25 September 2009]
“ In summary, the modern award will cover only private sector employers, which are very few in number, and the MFESB.” [Paragraph 68 of Award Modernisation Statement dated 25 September 2009]
“ In relation to classifications we note that no party supported the inclusion of classifications for administrative and technical employees and several parties opposed the inclusion of those classifications. They have been removed.” [Paragraph 52 of Award Modernisation Decision dated 4 December 2009]
[12] The Full Bench did not appear to consider that the Modern Award covers or applies to the CFA or any of its employees. However, if my finding that the CFA is a constitutional corporation due to its trading activities is upheld that situation may change. However, even if that were to be the case the Modern Award coverage is defined by an industry definition and a requirement that the work be in the classifications in the Award. There is no doubt that the industry requirement is met but there is no classification of manager community safety or any classification which has similar scope. Therefore even if the Modern Award were found to apply it does not cover or apply to Managers Community Safety.
[13] I therefore determine that the Managers Community Safety are not covered by any of the Awards referred to. Therefore the applicable reference instrument for the purposes of the BOOT is the National Minimum Wage Order (and associated instruments).
[14] It should be noted for bargaining purposes that the existing Agreement provides that certain provisions of the Victorian Firefighting Industry Employees Interim Award 2000 apply as part of the Agreement. Nothing in this decision alters the continued relevance and enforceability of that provision.
[15] The Tribunal will continue to assist the parties in conciliation concerning the outstanding matters as required.
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