United Firefighters' Union of Australia v Fire Rescue Victoria
[2022] FWC 2833
•21 OCTOBER 2022
| [2022] FWC 2833 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Fire Rescue Victoria
(C2022/6977)
| COMMISSIONER WILSON | MELBOURNE, 21 OCTOBER 2022 |
Dispute arising under an enterprise agreement; allowance for reimbursement of income protection insurance. Order issued.
The United Firefighters’ Union of Australia (UFU) made application to the Fair Work Commission on 18 October 2022 for an alleged dispute arising under an enterprise agreement to be dealt with pursuant to the provisions of s.739 of the Fair Work Act 2009. The dispute arises under the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (the 2020 Agreement).[1]
The application sought the Commission to deal with the matter with urgency and it connects with earlier dealings by the Commission with similar subject matter in 2018 and later.
The UFU’s application is premised on the basis of a dispute between the UFU and Fire Rescue Victoria (FRV) about arrangements relating to income protection insurance due to operational firefighters working under the 2020 Agreement. That agreement provides conditions of employment in Division A for former MFB operational employees and Division B for former CFA operational employees with both divisions providing for an accident and illness policy as follows;
“FRV and UFU will consult and implement an agreed income protection policy/scheme for all employees covered under this Division. This income protection policy/scheme will commence from July 2017.”[2]
The 2020 Agreement is presently the subject of enterprise bargaining which has not yet concluded.
The UFU’s application notes that the income protection policy/scheme which covers employees covered by the 2020 Agreement will expire on 1 November 2022. The UFU submits that it now seeks the implementation of a different policy/scheme but that arrangements between the union and the FRV for such are not yet fully settled or agreed. With the present policy expiring on 1 November 2022, the union seeks certainty for its members through an order of the Commission ensuring a determined outcome until the ongoing arrangements are finalised and fully agreed, both as to the entitlement to a reimbursement and its quantum.
Mr Koletsis for the FRV advised that his organisation consented to resolution of the dispute on the terms put forward by the UFU.
The Commission as presently constituted made orders in 2018 by consent which provided for employees who have or take out personal income protection insurance to be reimbursed for their premiums in a limited way.[3] The reimbursement allowance as provided for in the 2018 Order was then varied in accordance with the statement issued by Deputy President Mansini (as Her Honour then was) on 3 June 2021.
The original 2018 Order included the following;
“2. The provision of this reimbursement will apply to all employees covered by the classifications in the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 and the Metropolitan Fire and Emergency Services Board & United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (hereafter the 'Employees').
3. Employees who have or take out personal income protection insurance will be entitled to reimbursement of their premiums up to an amount of $48 per week for the period of operation of the applicable Agreement in paragraph 2 above to indemnify them for the cost of such insurance, subject to the employee providing proof of payment.”
Arguably the reference in the above extract to the reimbursement being “for the period of operation of the applicable Agreement in paragraph 2” could be construed as meaning that the reimbursement applies only for the period in which the named enterprise agreements are in operation (see FW Act s.54 (2)). With the named 2010 enterprise agreements each having been replaced by the 2020 Agreement, which itself is likely to be replaced in the not-too-distant future I accept the proposition advanced by the Applicant that it is appropriate for there to be a further order of the Commission dealing with the subject of personal income protection insurance premium reimbursement.
It is also of course the case that any order to be contemplated by the Commission reflect the most recent increases to the quantum of the reimbursement allowance itself. The order proposed by the UFU places the reimbursement amount at $50.43 per week.
Counsel for the UFU, Mr Warren Friend KC with Mr Jim McKenna drew attention to earlier decisions of Fair Work Australia, as the tribunal then was, dealing with the broad subject matter of income protection insurance for operational firefighters; United Firefighters' Union of Australia-Victorian Branch v Metropolitan Fire and Emergency Services Board[2012] FWA 1085 (Roe C); Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia-Victorian Branch[2012] FWAFB 9555, (2012) 223 IR 448 (Kaufman SDP, Hamilton DP, Gregory C). Upon appeal the Full Bench found that a dispute settlement term that allowed for the imposition of new obligations under an enterprise agreement does not travel beyond what is permitted by the FW Act and that the Commission was empowered to deal with the dispute about the claim for disability insurance scheme by the exercise of arbitral powers.
I am satisfied that the union’s proposed order is consistent with the reasoning within those decisions; the proposed allowance is a payment to employees are specific purpose and is plainly a permitted matter. The 2020 Agreement contemplates consultation about an implementation of an agreed income protection policy/scheme which is yet to occur. The proposed order is an appropriate resolution to the dispute between the parties about those matters.
Consistent with the foregoing reasons I will make the order [PR747084] proposed by the UFU which is published separately to these reasons for decision.
COMMISSIONER
Appearances:
Mr W Friend KC and Mr J McKenna for the Applicant.
Mr N Koletsis for the Respondent.
Hearing details:
2022.
Melbourne:
20 October.
[1] PR720617
[2] Division A, Clause 48; Division B, Clause 56.
[3] 19 October 2018, unpublished, see C2018/1135 and C2018/3637.
Printed by authority of the Commonwealth Government Printer
<PR747086>
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