United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board

[2012] FWA 8838

[2012] FWA 8838

FAIR WORK AUSTRALIA

DECISION

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

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2012/2701)

COMMISSIONER ROE MELBOURNE, 19 NOVEMBER 2012

Alleged dispute concerning reserved matters pursuant to Clause 42 Allowances and Clause 19 Dispute Resolution of Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2010.

[1] The United Firefighters’ Union of Australia (UFU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act) on 23 September 2010. 1 The employer covered by the Agreement is the Metropolitan Fire and Emergency Services Board (MFB).

[2] The dispute relates to a number of matters, referred to by the parties as the reserved matters, and the UFU seeks that the claims listed as reserved matters be granted to those whose employment is covered by the Agreement as a resolution to the dispute.

The Background and Jurisdiction

[3] The relevant clauses of the Agreement are:

“19. DISPUTE RESOLUTION

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

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

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

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

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

19.2. 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:

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

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

19.2.3. 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.

19.2.4. 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.

19.2.5. 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.

19.2.6. 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.

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

19.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, 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.

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

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

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

42. ALLOWANCES

42.1. The monetary amounts of all allowances provided for in this agreement are set out in Schedule 4.

42.2. All other work related allowances will increase by 13.5% as identified in Schedule 4 of this agreement as from the date of lodgement of the Agreement with Fair Work Australia.

42.3. Any additional, new or increase of allowance above that already provided in the agreement will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.

....

23. NO EXTRA CLAIMS

23.1. There shall be no extra claims by either party.”

[4] The relevant provisions of the Act are:

“Subdivision B—Dealing with disputes

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

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

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by FWA

(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.

(2) FWA 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 FWA dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.

Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.

Note: FWA 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), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWA may deal with a dispute only on application by a party to the dispute.”

[5] I have considered the submissions of the parties in respect to jurisdictional issues and the approach to be taken in these proceedings.

[6] One of the reserved matters, the MFB’s accident and illness policy and the provision of income protection insurance, was dealt with earlier based upon a separate dispute notification (C2011/781). I issued two decisions in that matter. 2 In that matter I dealt with the jurisdictional issues and the approach to be taken to a private arbitration of the reserved matters. I rely on the relevant parts of those decisions.3

[7] The MFB lodged an appeal against the second of the decisions in the matter concerning accident and illness policy and the provision of income protection insurance. I conducted a hearing on 13 August 2012 and also subsequently considered a written submission from the MFB in respect to the impact that the appeal and its grounds had on the proceedings in this matter. I determined that it was appropriate to continue to hear the matter but that I would not hand down a decision in the matter until after the appeal decision was handed down and that I would give the parties the opportunity to make supplementary written submissions about any impact the appeal decision should have on the decision in this matter. I prepared the draft of this decision prior the appeal decision being available. The appeal decision was made on 13 November 2012 (Print 531186). That decision found that I was empowered to deal with the dispute by the exercise of arbitral powers. The jurisdictional background in respect to the income protection reserved matter is substantially the same as that which affects the reserved matters subject to this decision.

[8] On 17 August 2010 Peter Marshall, Branch Secretary of the UFU, sent a letter to the MFB stating that:

“In the course of discussions around the proposed MFB UFU Operational Staff Agreement, the parties identified a number of matters that it is agreed should be arbitrated by Fair Work Australia if they cannot be otherwise agreed between the parties.” 4

A list of items followed which includes the reserved matters dealt with in these proceedings.

[9] On 1 September 2010 Casey Lee on behalf of Peter Marshall sent a follow up email seeking a response to the correspondence of 17 August 2010 to Kirstie Schroder, Acting Director Capacity Development for the MFB. Ms Schroder had been a key participant in the negotiations for the Agreement. On 3 September 2010 Ms Kirstie Schroder responded by email that:

“I can confirm that the attached letters are reflective of our agreed position in relation to the matters contained in each of the letters. I would like to make one clarification in relation to private arbitration on Journey Accident Cover, this matter relates to the UFU seeking to extend Journey Accident provisions from 52 weeks to 104 weeks of cover.” 5

[10] The parties submit and I am satisfied that the steps of the disputes resolution procedure have been followed. I conducted conciliation of the dispute based upon the Application made by the UFU pursuant to Step 5 and Clause 19.3 of the procedure. I was satisfied that conciliation was exhausted. The parties agreed that the matter should proceed to arbitration.

[11] I am satisfied that Clause 19.1 provides very wide scope for the resolution of disputes which arise. The scope is much broader than the matters specifically provided for in the Agreement. There is nothing in the Act which prevents a disputes settlement clause in an agreement from having such a broad scope so long as it only deals with permitted matters. I am satisfied that pursuant to Section 739(1) of the Act the Agreement disputes settlement provision provides authority for FWA to deal with the dispute.

[12] The MFB argue that some aspects of the claims in respect to health insurance and medical expenses are not matters pertaining. I deal with this issue later. Otherwise I am satisfied that the reserved matters which I am asked to determine are matters which pertain to the employment relationship and are also matters which pertain to the relationship between the UFU and the employer.

[13] Section 739(2) is not relevant.

[14] Section 739(3) and 739(4) are satisfied because arbitration of this dispute is a matter which is explicitly permitted by the disputes settlement term of the Agreement and the Agreement no extra claims term does not otherwise limit the matters to be dealt with. The parties have agreed that FWA should arbitrate the dispute.

[15] The Application is made by a party to the dispute, the UFU, and hence Section 739(6) is satisfied.

[16] It is necessary to consider if the granting of the UFU’s claims or any alternative form of the claims would be inconsistent with the Agreement. If this were to be the case then to determine such an outcome would be contrary to Section 739(5) of the Act. The obvious term of the Agreement which might raise such an issue is Clause 23 No Extra Claims. The term “no extra claims” has an established industrial meaning. In this case the term is not restricted to matters in the Agreement and it is therefore designed to ensure that the agreement is a closed agreement until bargaining for the next agreement is permitted under the Agreement and the Act. Clause 5 of the Agreement provides for renegotiation to occur six months prior to the nominal expiry date of the Agreement. I am satisfied that Clause 23 means that no extra claims can be made until six months prior to the nominal expiry date of the Agreement. The Act provides that a protected industrial action ballot in pursuit of such claims cannot occur earlier than 30 days prior to the nominal expiry date of 30 September 2013.

[17] Extra claims are claims for a new, additional or changed entitlement. Given that the scope of the no extra claims term is not restricted in this Agreement the term can include further claims about matters which were settled and included in the Agreement, matters which were subject to the negotiations for an Agreement but which were not agreed to be included in the agreement, and matters which were not subject to negotiations for an Agreement. A dispute over the application or interpretation of a matter in the Agreement is not generally an extra claim. Since the disputes settlement clause in this Agreement is able to deal with matters wider than the Agreement provisions themselves there are also many possible disputes over the employment relationship or the relationship between the union and the employer which would not constitute claims for new, additional, or changed entitlements. Where the Agreement specifically provides for the parties to resolve a matter during its term or for further claims to be made about a particular matter during its term then claims about those matters would not generally be extra claims.

[18] In my view the nature of the claim in this case means that it must be regarded as an extra claim, and hence prohibited under Clause 23, unless a clause in the Agreement specifically allows for such a claim or unless the parties to the Agreement specifically agreed that the claim was not an extra claim at the time of making the Agreement (reserved matters). Since the disputes settlement clause in this Agreement is able to deal with matters wider than the Agreement provisions themselves then such reserved matters can be dealt with.

[19] The parties agree, and I am satisfied that the reserved matters are matters which the parties agreed at the time they made the Agreement were matters which did not constitute an extra claim pursuant to Clause 23 of the Agreement because these were matters which they agreed should be subject to private arbitration during the term of the Agreement. It was the mutual intention of the parties that the no extra claims clause be read as excluding the reserved matters. The employees were advised by the UFU and the MFB of this fact prior to the employees voting for the Agreement. The vast majority of employees covered by the Agreement are members of the UFU and were represented by the UFU in the bargaining process. Ms Schroder gave evidence that she attended a general membership meeting of UFU members on 1 September 2010 which was held to brief employees on the Agreement which had been negotiated and which was to be put to a vote. A power point slide show was given which outlined the content of the proposed Agreement. One of the slides is headed “Allowances to be arbitrated by consent” and the reserved matters in these proceedings appear on that slide. 6

[20] However, in settling the dispute over the claims I cannot make a determination which is inconsistent with other provisions in the Agreement. Hence if there are specific clauses in the Agreement relating to the subject matter of a particular claim I must not make a determination which is inconsistent with those clauses. Where this is relevant I deal with that when considering the merits of a particular claim.

[21] The MFB also argued that because FWA cannot make a decision which is inconsistent with the Fair Work Act (s 739(5)) or the Agreement, it cannot make a decision which is contrary to Object 3(f) of the Act:

“achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.”

I accept that this object is a relevant consideration in determining the merits of a claim before FWA in the context of private arbitration. However, I do not accept an argument that it would be beyond power to grant the claim because the act of granting the claim would be inconsistent with the object of the Act.

[22] The object is about the achievement of productivity and fairness, not just about the achievement of productivity. The object is not about particular clauses in an enterprise agreement, they are largely a matter for the parties to determine. The object is about achieving productivity and fairness through encouraging participation in enterprise level collective bargaining. I am not aware of any provision in the Act which requires FWA to evaluate each individual clause in an agreement to assess whether or not it contributes to productivity. In fact the Tribunal is prohibited from allowing such a consideration to affect its approval or otherwise of an agreement. The Tribunal is required to approve an agreement if it meets certain specified criteria and contribution to productivity is not one of those criteria.

[23] In my view it is common for the parties in enterprise level bargaining in this country and internationally to include provisions which either directly or ultimately provide for a particular matter to be determined through arbitration. Provided that the Agreement meets the better of overall test and other relevant tests such provisions are permitted in Agreements. There is nothing to suggest that such provisions are inconsistent with the object of achieving productivity and fairness through an emphasis on enterprise level collective bargaining. Such provisions are an intrinsic part of enterprise level collective bargaining. Depending upon the provision it may enhance productivity and fairness to a greater or lesser degree. The reference in the object in the Act to enhancement of productivity and fairness is of course not just a reference to the particular provisions in an agreement but to the process of collective bargaining itself. Such provisions are a part of that collective bargaining.

[24] I consider that the decision that this matter be privately arbitrated is in fact an outcome of collective bargaining and in that sense imposing an outcome is a decision which has been made by the parties and is therefore consistent with the promotion of collective bargaining under the Act.

[25] I am required to consider whether or not to grant the claims based upon the merits of the claims. The UFU argue that these matters can also be determined pursuant to Clause 42 Allowances. The reserved matters were listed under the heading “Allowances to be arbitrated by consent” in the slide presentation of the Agreement made to employees immediately before voting on the Agreement. 7 The MFB do not accept that the dispute can be settled pursuant to Clause 42.

[26] It is not necessary to determine this matter given that I am satisfied that Clause 19 provides a jurisdictional basis for FWA to resolve the dispute concerning the claims. However, if I am wrong about this matter I would be satisfied that because the particular claims are listed in the joint slide presentation of the Agreement made to employees immediately before voting on the Agreement that the new allowances represented by the claims are within the scope of the term “any additional, new or increase of allowance above that already provided in the agreement” in Clause 42.3. Clause 42.3 provides for disputes over such claims to be determined by FWA. In respect of such claims Clause 42 acts as a disputes settlement procedure consistent with Section 186(6) of the Act. There are other arguments, which would need to be considered if the circumstance arose, that FWA does not have the capacity to utilise Clause 42 and Clause 19 to resolve claims for new allowances beyond those listed as reserved allowance matters and dealt with in these proceedings.

[27] In determining this matter I am guided by:

• Section 577(a) of the Act that requires fairness and justice; and



• Section 578 of the Act that requires consideration of the objects of the Act and equity, good conscience and the merits of the matter.



• The Objects of the Act and particularly the object of the Act concerning the promotion of bargaining and achieving productivity and fairness in the workplace (Section 3(f) of the Act).

[28] I am not restricted to simply two alternatives in resolving this dispute - to grant the UFU claims in full in the manner sought or to reject the claims as sought by the MFB. I can determine other resolutions provided that they are within the scope of the matter in dispute and do not otherwise conflict with the Agreement. The parties agreed to this proposition during proceedings.

[29] The MFB in accepting that this matter should be arbitrated did not qualify that agreement by restricting the cost of any outcome. In agreeing to the arbitration the MFB accepted the risk that if the claim was granted in part or in full it would result in additional costs for the MFB. The UFU in accepting that this matter should be arbitrated did not qualify that agreement by requiring that some form of its claim must be granted.

[30] Nothing that I determine in resolving this dispute is a precedent for any other matter. The resolution depends entirely on the particular facts and the particular situation of the parties. I am not required to have regard to the matters which might be relevant in determining a variation to an award or an agreement.

[31] It is well established that claims develop over time during the process of bargaining and the resolution of disputes. The particular claims raised in bargaining are not in identical terms to the claims which the parties agreed were the reserved matters. The exact details of the outcome sought in resolution of the reserved matters has also developed over time and during these proceedings. However, I am satisfied that the outcomes as modified are within the ambit of the reserved matters which form the matters in dispute.

[32] In my view the settlement of the dispute having regard to “equity, good conscience and the merits” in a situation where the parties have referred a matter in an agreement to private arbitration does depend upon the context. If the parties agreed that something should happen but can’t agree on the details that is a completely different situation from where the parties don’t agree at all in the bargaining whether something should happen or not.

[33] I am satisfied that in agreeing as an outcome of the bargaining that a matter should be determined through private arbitration the MFB accept that there is an arguable claim and is prepared to let FWA determine the merits of the claim. However, the merits are not just the merits of the claim they are the merits of the claim in the industrial context and that context includes matters such as capacity to pay, the extent to which the matter was seriously bargained and the extent to which there was agreement about a matter. For example, I am satisfied that the MFB accepted that the claim for a global warming allowance should be seriously contemplated but they certainly did not concede that the claim had substantial merit. One has to assume that the MFB and the UFU thought that FWA would consider the claim in the context of the overall bargain struck. The broader context is likely to be less important in a situation where the parties have agreed in principle to a matter and have agreed that the final details are to be determined by FWA. I am satisfied that in the circumstances of this case the overall bargaining context is important.

[34] The MFB argue that the Agreement, even without having regard to the reserved matters, is a “Rolls Royce” Agreement which delivered significant real improvements in wages and conditions for firefighters. They argue that the costs and benefits of the reserved matter claims can to some extent be assessed against the background of the costs and benefits delivered by the Agreement as a whole. In other words, the MFB argues that because the Agreement is a “Rolls Royce” Agreement this makes the case for additional benefits less persuasive than if the Agreement was a “bare bones” Agreement. I accept that there is some validity in this argument. However, this argument cannot undermine the primary position which is the parties have agreed that regardless of whether the Agreement is a “bare bones” or a “Rolls Royce” agreement the matters should be arbitrated on the merits of the particular claim.

[35] A related point goes to the history of the bargaining around the claim itself. I accept that the evidence before me suggests that the reserved matters, with the possible exception of accident and illness policy, were not the subject of detailed consideration during the bargaining process.

[36] It could be argued that if the matter was not seriously bargained then this reduces the merit for granting the claim. Conversely it could be argued that if the matter has been the subject of prolonged and hard bargaining then this increases the merit for granting the claim. This is a dangerous approach as the history of a matter in the bargaining process does not necessarily reflect the final agreement. The final agreement is what counts and in this case the final agreement is that the matters should be determined through arbitration. A claim can be hard bargained but never agreed and never have merit. The parties can conclude that a claim has merit without much bargaining or detail. So my view is these matters related to the history of the bargaining have only limited relevance.

[37] The MFB argued that I should take into account the extent to which the Agreement actually delivered on the productivity improvements promised. If Object 3(f) has any relevance it is in considering the merits of the claims before me. It is not for me to retrospectively evaluate an Agreement which has passed the statutory test and in respect to which the MFB was required to seek approval from the State Government. Mr Marshall and Ms Schroder gave evidence that the productivity or savings benefits of the Agreement were identified and provided to the State Government as part of the approval process prior to the Agreement being put to a vote of employees. The State Government agreed that the Agreement met the wages policy of the Government which was for wage increases of 2.5% per annum plus additional productivity or savings based increases. The statutory requirements for the approval of an agreement mean that if an agreement meets the tests specified in the relevant part of the Act then approval of that agreement is consistent with object 3(f) of the Act.

[38] Mr Stacchino gave evidence that the anticipated savings from the provisions of the Agreement had to some extent not been achieved. To the extent that this is relevant it is reflected in the budgetary situation facing the MFB. I do take the costs of the claims and the affect on the MFB budget into consideration in determining the merits of the claims.

[39] I consider that I should take into account the capacity of the MFB to meet the additional costs of the claims. The evidence supports a conclusion that the additional cost of the claims was clearly raised by the MFB as one of the reasons why they could not be agreed to by the MFB during bargaining. The MFB accepted that a possible outcome of the agreed arbitration was increased costs but I should take into account the reasons why the claim is opposed by the MFB.

[40] I accept the evidence that the cost of these claims is not provided for in the current MFB budget. I have no evidence before me which suggests that there any concerns about the financial health of the MFB. I have no evidence concerning the level of MFB reserves.

[41] I only deal with the jurisdictional issues and the approach to be taken further where there are specific matters which attach to a particular reserved matter claim.

The reserved matters.

[42] The UFU confirmed through the conciliation and directions process that it is not pursing the following reserved matters claims as part of this case.

1. Fire Services Levy

The UFU advised on 16 April 2012 that it was not pursing this claim under this Agreement as the necessary legislation has not been introduced.

2. Global Warming Allowance

The UFU advised on 16 April 2012 that until further research is undertaken by the UFU, it does not seek to pursue the global warming allowance. Given the outcome of the conciliation and directions process the decisions in C2012/2701 are made on the basis that this matter will not be pursued further under this Agreement.

3. Pandemic Allowance

The UFU advised on 16 April 2012 that until further research is undertaken by the UFU, it does not seek to pursue the pandemic allowance. Given the outcome of the conciliation and directions process the decisions in C2012/2701 are made on the basis that this matter will not be pursued further under this Agreement.

4. Ambulance Membership

The UFU advised on 2 April 2012 that it does not persist with this claim as its claim for Medibank Basic Extras 70 cover incorporates ambulance coverage. In the submission on 16 April 2012 the UFU argued that should the Health Insurance claim not be granted then the UFU seeks that the MFB arrange for and meet all costs of membership of the ambulance service for each employee and their family. MFB will alternately pay each employee a net amount equivalent to the cost of membership of the ambulance service for that employee and their family. However, the UFU confirmed on 21 May 2012 at the hearing that either the health insurance claim will succeed or it will not and ambulance membership is not being separately pursued. 8

[43] I considered evidence and submissions in respect to the following reserved matters. The actual details of the claims were modified during the process leading up to the arbitration. Consistent with the Directions in this matter the MFB provided indicative estimates of the costs to the MFB of meeting the claims. 9 I have taken these costings into account. In some cases it is accepted by the parties that the costings should be adjusted because they were based on a misunderstanding of the claim or did not take into account modifications made to the claim during proceedings.

1. Health Insurance.

[44] The UFU claim that the MFB should implement a health insurance scheme to cover all employees and to be wholly funded by the MFB. The level of coverage will be based on Medibank Basic Extras 70. Such cover will be offered on a singles, couple and family membership basis and will be subject to the employees applying for the federal government’s private health insurance rebate.

[45] The UFU changed the claim from Medibank Top Extras Cover to Medibank Basic Extras cover. The MFB estimated the cost of the earlier claim at $2.732 million per annum. 10 The cost estimate based on the revised cover would be approximately $840,000 per annum.11 The UFU accepts that it is likely that Fringe Benefits Tax will be payable by the MFB in respect to this benefit which will significantly increase the estimated cost.

2. Medical Expenses

[46] On 5 March 2012 the UFU particularised this claim as:

“In addition to any benefits provided for by legislation, the MFESB will pay each an employee the cost of any out-of-pocket medical expenses incurred by an employee in the course of complying with this agreement (such as the cost associated with attending a doctor to obtain a medical certificate in respect of sick leave).

The payment will be payable upon presentation by the employee of a receipt for any such expense incurred.”

[47] On 2 April 2012 the UFU further particularlised the claim as:

“The UFU seeks the payment of out of pocket medical expenses including the cost of travel to appointments, incurred in the coures of obtaining the medical certificate or medical evidence necessary to access sick leave, carer’s leave, special sick leave, bereavement leave, pressing necessity leave and parental leave under the Agreement. Employees will first attempt to access a bulk-billing clinic to obtan the medical certificate or medial evidence necessary. Where this is not practicable, employees will attend a non bulk-billing clinic. Where it is necessaary for consulation to be provided by a practioner who is aware of an employee’s medial history, the employee may attend the clinic at which that practitioner consults. The out of pocket expenses will be based on the Medicare Benefits Schedule (MBS) produced and updated by the Department of Health and Ageing. It will only apply to general practitioner consultations unless the Agreement or the MFB require further or different evidence to be obtained. If such evidence can only be sought from a service that falls outside of the MBS the costs will be remibursed by the MFB upon the employee providing written evidence of the same. The travel costs associated with obtaining the medical certificate or medical evidence required wil be calucluated on the rates per business kilometer published by the ATO each income year. Such travel will be reimbursed by the MFB where the employee provides the documented kilometers in a logbook and at the time the medical expense to which the travel relates are claimed.”

[48] The MFB estimates the cost of this claim at $1.25 million per annum. 12 The MFB suggests that this is likely to be a conservative estimate. The UFU accepts that it is likely that Fringe Benefits Tax will be payable by the MFB in respect to this benefit which will significantly increase this cost to the MFB.

3. Qualifications allowances:

[49] During the proceedings the UFU clarified the amount of the allowance sought. The UFU are seeking that:

• A holder of Certificate IV in Workplace Training and Assessment (Certificate IV) shall receive an allowance of $14.03 per week. This shall only apply to operational firefighters. The matter of recognition of training qualifications for those in the training department is being dealt with separately as part of the consideration of instructor progression (C2011/5138). Eligibility for the allowance depends on the holder continuing to meet any requirements associated with the qualification for currency and compliance.



• A holder of Diploma in Business shall receive an allowance of $21.33 per week.



• A holder of Advanced Diploma in Business Management shall receive an allowance of $26.39 per week.



• A holder of Diploma or above in Emergency Management shall receive an allowance of $21.33 per week.

[50] If the courses become unavailable or are no longer supported by the MFB, the allowance should continue for those who have qualified for it at the time such courses were available and supported by the MFB. This will equally apply if such courses are superseded by others. If a firefighter holds more than one of the qualifications then they would receive both applicable allowances. The MFB provided a number of estimates of the cost of the qualifications allowances claim. The original estimate was approximately $230,000. This was then substantially increased to about $1 million when the MFB was of the view that all senior officers obtained the diploma through promotional training. Also the estimates were based on the UFU claim for allowances at the rate of $30 per week which was later reduced. Mr Wright gave evidence that the MFB do not have a central data base which records all the qualifications held by each firefighter other than those obtained through promotional courses.

4. Representation Allowance.

[51] The UFU is seeking that the MFB pay arepresentation allowance to each employee who is required to attend, give evidence or participate in proceedings in any Commission, Court, tribunal, or any other body, provided that the proceeding or the requirement to attend or participate in the proceeding relates to or is in the course of the employee’s employment. The amount of the representation allowance shall be an amount equivalent to the cost of engaging independent legal counsel of the employee’s choosing to advise, prepare for and appear in the proceedings. In the event of a dispute about the amount of any such allowance, that matter shall be determined pursuant to the dispute resolution procedure of this agreement.

[52] The MFB was not able to estimate the cost of this claim.

[53] On 2 April 2012 the UFU further particularised the claim by capping the allowance in respect to a particular case to $25,000 and also by somewhat narrowing the nature of the proceedings covered. In their submission of 24 August 2012 the UFU further particularised the claim as follows:

“Allowance for employment related legal proceedings.

If an Employee is required to give evidence at or to defend legal proceedings, which have directly arisen from the course of employment, the Employer must meet the Employee’s reasonable legal costs for advice and/or representation in relation to those legal proceedings.

The Employer must also meet the Employee’s reasonable legal costs for advice and/or representation in relation to potential legal proceedings, which have directly arisen from the course of employment.

Legal proceedings include any civil or criminal proceedings, coronial inquests, Royal Commissions or other proceedings of a similar nature. Legal proceedings do not include industrial law proceedings initiated by the UFU or by an Employee against the Employer.

The allowance payable will be a maximum of $25,000.00. Written evidence of the legal costs incurred by the Employee will be necessary before the Employer is required to reimburse such costs.”

[54] The MFB cost estimate is $1 million, which amount is calculated by reference to the current number of employees to whom the MFB provides legal assistance in a year (currently around 40) and assumes legal representation to the UFU nominated cap of $25,000.

5. X-ray

[55] The UFU is seeking that the MFB arrange to make available to every employee every 12 months an annual chest screening. This will require the MFB to fund a confidential and voluntary annual chest screening check up at the employee’s preferred provider, including a respiratory questionnaire, a physical examination of the chest and spirometry to measure lung function. If following this check up an abnormality or risk was identified then the employee would be referred for a spiral CT scan funded by the MFB. The costs associated with the chest screening check up and the spiral CT scan would be based on the MBS.

[56] The results of the service and the relationship between the medical practitioner and the employee will not lose their normal confidential doctor/patient status merely because the MFB is paying for the service or because the service pertains to the employment relationship.

[57] The MFB estimated the annual cost of the claim at $467,740. However the above claim was significantly modified after it was costed by the MFB.

[58] On 7 August 2012 the UFU advised that they were not pursuing the claim at this stage due to difficulties finalising the evidence.

6. Childcare

[59] The UFU is seeking that the MFB provide reimbursement for the cost of childcare where an employee has been required to access this service in order that the employee can carry out their work as a result of being recalled, retained, or required to work overtime as defined in the Agreement. The UFU seek an outcome such that Clause 43 of the CFA/UFU Operational Staff Enterprise Agreement 2010 is replicated in the Agreement. Clause 43 of that agreement provides:

“Where as a result of being recalled, retained, working overtime or performing any work outside of their normal rostered hours, an employee is required to incur an expense for childcare in order that the employee can carry out their work, the CFA must reimburse the employee upon production of appropriate documentation of the childcare expense incurred.”

[60] The MFB estimated the cost of the claim at $1.510 million per annum. In final submissions the MFB revised its estimate to $3 million per annum on the basis that the costs per day are not capped and that the costs would be subject to fringe benefits tax (FBT). FBT would also affect payroll tax and workcover premiums. The MFB argue that it is virtually impossible to properly estimate the cost of the claim given the lack of evidence on the likely incidence of claims or their cost. The MFB argue that there was no evidence of the number of firefighters with children, the number of firefighters with inadequate family support arrangements and the likely incidence of claims.

7. Meal Allowances

[61] The UFU is seeking that the meal allowance and spoilt meal allowance be in accordance with the ATO’s annual Taxation Determination. This would replace the current allowance of $14.98 specified in Schedule 4 of the Agreement. The relevant taxation determinations are TD2009/15 which provides for $24.95 and TD2012/17 which provides for $27.10. The UFU is seeking that TD2012/17 apply. The conditions for payment of the meal allowance when an employee is recalled, retained, required to work overtime, or to work on a fire call or fire watching duty during and for certain specified hours are set out in Clause 42.5. The allowance is also payable where a meal break is delayed for more than 30 minutes with less than two hours notice. The Spoilt Meal allowance is at the same level and is payable in conditions as set out in Clause 42.6. The reserved matter in respect to this item was recorded in correspondence dated 17 August 2010 from Peter Marshall to Shane Wright. That correspondence referred to TD2009/15 and the rate of $24.95.

[62] The meal allowances were not included in the MFB initial costings as the clarification of the claims was provided later. However, in their final submissions the MFB argued that over the last twelve months the MFB incurred direct costs in respect of all meal allowances (including the spoilt meal allowance) of approximately $500,000. The MFB therefore estimates that the projected increase, should the UFU claim be allowed, will be in the order of an additional $400,000 per annum.

8. Central Zone Allowance

[63] The UFU is seeking that whilst an employee is working within Central Zone, they will be paid an allowance of 10% of their base wages. This is to cover the additional travel costs incurred by firefighters associated with travelling to the Central Zone stations from outer areas.

[64] The MFB estimates the annual cost of the claim to be $2.7 million.

[65] On 7 August 2012 the UFU advised that they were not pursuing the claim at this stage due to difficulties finalising the evidence.

Consideration

Health Insurance and Medical Expenses

[66] In support of the claim for medical expenses the UFU argue that there are a number of provisions in the Agreement which restrict access to various forms of personal leave and parental leave by requiring the production of a medical certificate or medical evidence. The UFU argue that this is to the benefit of the MFB because it controls the cost of such leave to the MFB and provides it with greater certainty and cost effectiveness. The UFU argues that since it is the MFB that directly benefits from regulating leave entitlements it should cover the costs associated with such regulation.

[67] Christopher Day, 13 Richard Geluk14 and Alan Drury15 provided evidence of the costs of obtaining medical certificates particularly since the Agreement removed the option of statutory declarations. These witnesses provided evidence that the cost of travel to the Brigade Medical Service in inner Melbourne can be significant and that where there are family members involved the number of medical certificates can add up as can the cost. Where there is a history of family illness, there is a significant imperative to obtain a medical certificate even for the cold or the flu so as to keep “no evidence” days in credit.16

[68] The UFU accepts that there are a range of entitlements available to employees when injured or ill including workers compensation, accident make up pay, leave entitlements, journey accident cover, disability benefit pensions as part of the Emergency Services Superannuation (ESS), and income protection insurance. However, the UFU argues that these entitlements generally do not provide protection for medical expenses incurred in the necessary treatment and rehabilitation required for return to work following what is deemed to be a non-work related injury or illness. The UFU particularly refer to the situation where a worker’s compensation claim is denied or disputed. The UFU argue that it can sometimes take years to resolve a disputed claim. The UFU argue that inability to afford appropriate medical or rehabilitation care can delay or hinder an employee’s recovery. 17

[69] The UFU argue that the protection of private health insurance would assist in ensuring that injury or illness is not exacerbated by delayed treatment. This will benefit both the employee and the MFB. 18 The UFU also point to the strenuous and stressful nature of the work of firefighters which can contribute to injury or illness which is deemed non-work related.19 The UFU also point to the exposure to ill members of the public as a result of the role the MFB firefighters play in Emergency Medical Response. The MFB witnesses accept that this may increase the requirement for firefighters to be vaccinated as occurs with health care workers. The UFU argue that the MFB workforce is an ageing one, even when compared to the general work population, and this will increase the incidence of illness.

[70] Mr McInerney gave evidence for the MFB in respect to the health care aspect of firefighters’ work.

“I haven't made my question clear, I'm sorry, Mr McInerney. I'm not asking about wider vaccinations. I'm asking, why does it describe firefighters as health care workers?---Okay, well, I'll just - in getting to that - because of the expanded role we now have as emergency medical response, firefighters are exposed to more things in the community than they might otherwise have been, because of treating ill people, and so we thought that because they're, you know, not quite acting as paramedics but they're getting into that space, and medical advice from Dr Wadsley, who has been here, was that we ought to think of them as health care workers and therefore provide a suitable vaccination program, a wider vaccination program than we had hitherto.” 20

[71] The UFU point to the discount of 5% provided on health insurance premiums for corporate arrangements in support of a collective approach to health insurance.

[72] The MFB argue that the requirement for medical evidence in respect of carers leave is not relevant because the requisite medical evidence relates to a family member and a provision requiring payment of costs for a family member does not pertain to the relationship between the MFB and its employees.

[73] The MFB argue, and it was not contested, that the requirement for medical evidence in respect of bereavement leave is irrelevant because what is required is evidence of death. Evidence was given in proceedings that a notice from the newspaper is accepted by the MFB.

[74] The MFB argues that provisions for special sick leave and parental leave have limited relevance.

[75] Dr Wadsley 21 and Mr McInerney22 gave evidence that MFB employees have access to a comprehensive medical service via the Brigade Medical Service (BMS). These services are bulk billed. Employees have access to up to 4 physiotherapy sessions for non work related conditions without incurring any cost. The MFB submit that this would be roughly equivalent to the benefits available under basic extras private health insurance for physiotherapy. Mr McInerney also gave evidence of the return to work programs and assistance provided by the MFB.

[76] The UFU witnesses generally accepted that the Brigade Medical Service was available and were satisfied with its services when accessed. Some witnesses did not utilise the service because it was too far away or because they preferred to utilise their family or treating doctor. Dr Wadsley estimated that 10% of the firefighter visits to the BMS relate to non-work related illness. Non-work related visits are not one of the six areas of focus for the contract between the MFB and Dr Wadsley’s service, Public Health Management Limited.

[77] The MFB argue that the UFU have not established why the medical expenses benefit should apply to firefighters but not to anyone else in the community. They argue that the claim is analogous to a claim for payment for the cost of travelling to and from work. The MFB argue that there is no evidence that the claim was meaningfully pursued during the bargaining process. They argue that there is no evidence of any urgency associated with the claim.

[78] The MFB argue that the claim being pursued in respect to health insurance does not correspond in any meaningful way with the claim pursued during bargaining. The MFB point to the UFU 2009 log of claims which in respect to this matter related to protection from illness due to exposure to chemicals, contaminants and unavoidable risks during the course of work.

[79] The MFB also argue that the claim for cover to be on a singles, couple or family membership basis means that the union is seeking a benefit which extends beyond the employee to provide a benefit for their spouse and other family members. Such a claim is not a matter pertaining to the relationship between the MFB and its employees. 23

[80] Mr McInerney gave evidence that only 10 percent of workers compensation claims are questioned and approximately 5 percent are rejected. Of 320 claims in 2011 he said that 26 were rejected at first instance and 11 were rejected ultimately. Where a claim is rejected at first instance Mr McInerney accepted that there can be a considerable delay whilst the conciliation process is completed.

[81] The MFB points to the lack of evidence as to what proportion of firefighters already have private health insurance. The UFU witnesses confirmed that they did have private health insurance. If many firefighters already have private health insurance then the claimed adverse effects of lack of health insurance are largely a mirage.

[82] The MFB argue that the combined cost of the health insurance and medical costs claims, including FBT costs, is in excess of $2 million. The MFB argues that the cost of FBT and the effect on other taxes and charges will greatly increase this figure.

[83] I accept that the claims in respect to health insurance and medical expenses are within the scope of the matters that the parties agree were to be arbitrated. They certainly fit within the scope of the matters in the 17 August 2010 correspondence of Ms Schroder confirming the reserved matters.

[84] I accept the evidence that the nature of the work of firefighters increases their exposure to illness through Emergency Medical Response and the likelihood of absence from work when ill due to the high requirements in respect to fitness. I accept the evidence that in respect of illness which has not been accepted for workers compensation the assistance provided by the MFB is in excess of the services generally available from employers in the general community. In particular I refer to the access to the Brigade Medical Service and the support provided by the health and safety department of the MFB to assist in return to work and employee wellbeing. However, I also accept that work related illness is the primary focus of these services. Most firefighter non workers compensation illness is treated by other private practitioners.

[85] The MFB argue that the requirements for medical certificates or medical evidence for various forms of leave under the Agreement are not onerous when compared to prevailing conditions in other industries and agreements. The National Employment Standards envisage that requirements for the production of evidence will be imposed. The MFB argue that the cost is one that is seen as a private or social expense and not a matter for the employer.

[86] The MFB suggest that rejected or delayed workcover claims are the main basis for the claim for health insurance. However, this is not supported by the evidence of Mr Marshall who refers to a number of factors to justify the claim. 24 The issues associated with an ageing workforce are established and I accept that with conditions such as cardiovascular disease, Type II diabetes, and muscular-ligamental conditions age is a factor and early and regular treatment can have significant benefits to the both the employee and the employer.25

[87] I accept the evidence of the UFU witnesses that employees sometimes attend doctors or obtain certificates on behalf of family members solely for the purpose of satisfying the requirement of the MFB pursuant to the Agreement for the provision of such certificates. 26 Use of BMS or other bulk billing practices is not a practical proposition in all cases for firefighters given location and the desirability of continuity of treating doctor.

[88] I accept that some employees have workers compensation claims rejected or delayed and they will benefit from access to extras cover through insurance. I accept that insurance may also assist in the case of non-work related conditions. I also accept that strategies to deal with the ageing workforce will be assisted by health insurance.

[89] The MFB submit that the claim for reimbursement of the costs to obtain a medical certificate is not reflected in any Award or Agreement. The UFU did not dispute this claim. I am satisfied that provisions for the employer to pay health insurance do exist in some collective agreements but it is not widespread.

[90] I accept the submission of the UFU that a claim for private health insurance is not different from a claim for payment of a superannuation contribution. It is a payment made on behalf of the employee to a third person. The incidence of the requirement for medical treatment will be affected by the nature of firefighting work and the employee will have to meet the costs of such treatment unless the employer contributes towards it through the provision of health insurance premium. Similarly the Agreement requires the provision of medical certification prior to the employee being able to access personal leave. The employee would have to meet the costs of compliance unless the employer contributes to these costs. These claims pertain to the relationship between the employee and the employer. The certificate is being obtained for the purpose of meeting an employment requirement and in this sense it is irrelevant whether it is in respect to the employee or the employee’s family member. Superannuation contributions also provide incidental benefits such as death and disability payments to family members. Provided that these benefits are not solely for family members it does not fall foul of the tests established by the authorities and Sydney Ferries in particular. I am satisfied that the claims are matters pertaining.

[91] On balance the claim for medical expenses is rejected because:

• The requirements for the provision of medical evidence under the Agreement are not onerous or unusual.



• The MFB makes some arrangements for access to bulk billed treatment through the BMS.



• Employees are required to make choices which balance factors such as distance to provider, desire for treatment continuity, and desire to visit a bulk billing doctor. Cost is not the only or necessarily the primary factor in these choices. Granting the claim would make the employer liable dependent upon these choices.



• The incidence of visits to practitioners for the sole purpose of getting the certification necessary to access entitlements under the Agreement is not known. Many visits will also be for the purpose of medical treatment. The reasons why MFB employees should receive compensation for visits to doctors for general medical treatment unlike others in the community are not clear.



• The costs and the likely trends in respect to costs are very difficult to estimate with any level of confidence.

[92] I note that for public policy reasons, insurance for the gap between the medicare benefit and the amount charged by doctors for General Practice visits is not permitted. The cost of this gap if any is generally regarded as a private cost. If certain sections of the community were effectively insured for this gap as a result of collective agreement arrangements with their employer it would put upward pressure on the costs for General Practice visits and undermine the public policy surrounding the universal medicare system. In my view the Tribunal should be cautious about the introduction of a new provision in the absence of adequate consideration of the broader public interest. There does not appear to have been significant consideration by Governments and by the peak employer and union organisations of the implications of the grant of such a claim. Although it was not argued directly before me and my decision is not altered by consideration of this factor, this would be a relevant a public interest consideration.

[93] On balance the claim for health insurance is rejected because:

• Given that the provision of health insurance by the employer is likely to be subject to FBT the actual cost of the insurance when provided by the employer will often exceed the cost of such insurance purchased directly by an employee.



• Although the UFU have established some factors which distinguish firefighters from the general population in respect to the need for the provision of private health cover, and where such cover might improve access to beneficial medical services (e.g. ageing population, high fitness for duty requirements, and EMR exposure), the differentiation is not particularly strong. That is, these distinguishing factors are likely to be marginal or incremental when compared to the overall pattern of medical usage and demand.



• The lack of any evidence about the incidence of private health insurance coverage amongst the firefighter population. Such evidence would affect the strength of those arguments which relate to the question of the impact on access to services.



• The incidence of employees who have been refused access to workers compensation does not in itself warrant a costly universal measure. It is of course noted that this was not the only basis on which the benefit is claimed.

[94] I note that those countries where private health insurance is a common feature in collective agreements, for example the US and South Africa, have historically had weak universal health insurance systems. The existence of private health insurance in collective agreements has been an impediment, but probably not the major impediment, to the development of better universal health systems and it has also arguably affected the competitiveness of certain firms and sectors. The implications of any move towards collective bargaining in respect to private health insurance has not been subject to broad social debate including by employer organisations, unions and governments. Although it was not argued directly before me and my decision is not altered by consideration of this factor, this would be a relevant a public interest consideration.

Qualifications Allowances

[95] The UFU is seeking recognition of the value added to the MFB by firefighters with these credentials. The UFU argue that qualifications can expand the range of tasks that a firefighter can perform and the extent to which that firefighter can contribute to building the capabilities of the MFB. The UFU argue that relevant qualifications can increase the skill and expertise that firefighters bring to the job they perform to the benefit of the MFB. Recognition of the qualifications by the payment of an allowance will encourage firefighters to participate in relevant training and will encourage a more qualified and up to date workforce.

[96] The Agreement already contains a number of qualifications allowances. These allowances have been in earlier agreements for many years. These allowances relate to Fire Technology and Emergency Medical Response qualifications.

[97] The UFU provided evidence that firefighters with the rank of Leading Firefighter and above who have the Certificate IV trainer and assessor qualification regularly provide on shift training and assessment to other firefighters. 27 This can take the form of skills maintenance and refresher training including the performance of drills, instruction in new equipment, supervision and sign off for completing modules and in some instances the marking of exams.28

[98] The UFU provided evidence that a firefighter who has expertise in a particular field such as marine response will undertake Certificate IV in order to be able to instruct and mentor others. 29 Peter Perkins gave evidence that he already had the Certificate IV qualification before commencing work as a firefighter. Firefighters also engage in community briefings and Peter Perkins gave evidence that holding a Certificate IV qualification can enable firefighters to perform this work more effectively. Mr Rooney gave the example of the work he does in providing driving instruction to firefighters whilst on shift. Mr Rooney conducts assessment during this process and provides competency reports back to Mr Ottrey, Head of the Driving Department. He will also provide assessment and counselling at minor collisions.

[99] Firefighters on shift do not perform formal assessment for the purpose of qualifications. This work is performed by the day shift instructors at the Training College in compliance with the Registered Training Organisation requirements. However, the UFU argue that those on shift with the Certificate IV perform important work to support the formal assessment process in maintaining and updating skills and assisting those who are seeking promotion. 30

[100] As part of the training program for progression to the rank of Station Officer firefighters complete 2 of the 10 units required for the Certificate IV in training and assessment.

[101] Firefighters who complete the Senior Station Officer promotional course can now also achieve the Diploma in Business. This qualification is awarded as a consequence of the alignment of the competencies acquired. Peter Rau gave evidence for the MFB that the Diploma of Business is not achieved in all cases where the Senior Station Officer course is completed. The Diploma of Public Safety (Firefighting Management) is achieved as part of the course. 31

[102] The UFU argues that this is a dividend rather than a requirement of promotion. The Diploma of Business is transferable and recognisable across industry. It ensures that firefighters have an understanding of the demands of modern business. Mr McCoy gave evidence of the productive use he makes of the skills obtained through the qualification during his work. 32 However, the evidence did not distinguish the contribution made by the Diploma of Business from the contribution made by the Diploma of Public Safety to these skills or the productive use of the skills.

[103] Those who complete the course requirements for promotion to Commander rank complete an Advanced Diploma in Public Safety. There are some aspects of this qualification which overlap with the Advanced Diploma in Business Management. Commander Weir gave evidence that he applied for and was accepted to undertake the Advanced Diploma in Business Management in 2008. He undertook instruction at the Burnley Training College and also engaged in out of hours study. 33 There was no clear evidence of the incidence of the Advanced Diploma of Business Management in the MFB or the extent to which the MFB has promoted enrolment in the course. There was also no clear evidence of the extent of overlap with the Advanced Diploma in Public Safety which is completed as part of the Commander promotion process.

[104] There is no clear evidence about the incidence of the Diploma or above in Emergency Management within the MFB. Mr Landells gave evidence that he was aware of only one other person in the MFB other than himself who had the qualification. Mr Landells gave evidence that he has only utilised the qualification once during the course of his employment. 34 Mr Landells suggested that the qualification assists with interoperability and cooperation between emergency services agencies.

[105] The MFB argues that there is no relationship between the duties which the MFB expects firefighters to discharge in respect to emergency response and the Diploma or above in Emergency Management. It is not a requirement for roles in an emergency management team within the MFB. The MFB does not require firefighters to undertake this qualification. To the extent that firefighters are supported to complete this qualification it assists the firefighter in future career opportunities inside and outside the MFB.

[106] The MFB referred to the principles applied by the Tribunal in respect to qualifications allowances. The MFB argue that there must be a relationship between the qualification and the skills and duties which are required by the employer to be performed. I accept that this is a relevant consideration is assessing the merits of this claim.

[107] I was impressed by the evidence of the UFU witnesses. I have no doubt that these firefighters and others like them have enthusiastically worked to acquire qualifications which assist them to be proactive in their employment. These witnesses demonstrated how they utilise the skills and knowledge obtained through the qualification in their employment to the benefit of the MFB.

[108] However, I am satisfied that the Diploma of Business is largely recognised through promotion to the rank of Senior Station Officer and that it would be double counting to pay an allowance for the qualification. The work value of the particular ranks has generally been recognised in the Agreement. 35

[109] I am also not satisfied that there is sufficient evidence to support an allowance for the Diploma or above in Emergency Management given that the qualification is only held by a very limited number of firefighters, is not required by the MFB for the performance of work and Mr Landells has only utilised the qualification to date on one occasion.

[110] I am also not satisfied that there is sufficient evidence to support an allowance for the Advanced Diploma of Business Management. The business management skills required by the MFB appear to be incorporated in the Commander promotion course and the Advanced Diploma in public safety that is achieved through that course. There is some overlap between the two qualifications but there is no evidence as to why Advanced Diploma of Business Management is required or adds significant value to the MFB when compared to the Advanced Diploma in public safety. There is also no evidence about the number of firefighters who hold the qualification or have been supported to acquire the qualification.

[111] The evidence in respect to the Certificate IV for those who are engaged on shift was much stronger.

[112] Mr Rau gives evidence that signing off on recruit’s retention training is a responsibility of Station Officers. He says that a coordinator from the Training College is assigned to manage and assess assessments completed on shift. 36

[113] Mr Rau submits that when Mr Rooney is carrying out driving instruction he may be undertaking an instructor role and may be remunerated in accordance with the MFB streaming proposal. 37 However, Mr Rau did not suggest that this applied to a situation where driving instruction or support occurred outside of the formal courses at the Training College.

[114] Mr Rau similarly argues that public awareness training is part of the work of community safety officers which will be recognised through the MFB streaming proposal. Firefighters utilising the Certificate IV in a community safety education role will be recognised through this mechanism.

[115] Mr Rau give evidence that Subject Matter Experts such as Mr Spencer in respect of marine response can present in a promotional course and they will be assisted by an instructor with the Certificate IV. 38However, Mr Rau did not suggest that this applied to a situation where the training was outside of a course at the Training College.

[116] Mr Wright gave evidence for the MFB that the MFB do not hold records concerning the number of firefighters who hold qualifications other than those associated with promotional courses.

[117] Mr Spencer who is a Station Officer gave evidence that he undertook the Certificate IV training with the encouragement of his supervisors so that he could provide training as a subject matter expert in marine response. 39

[118] Mr Spencer gave evidence that the training he delivers on shift does not result in a formal qualification but that nonetheless it is formal or structured in nature and does involve assessment. Mr Spencer distinguished this from the skills maintenance and retention training provided on shift to recruits which does not involve formal assessment. 40

[119] Mr Spencer gave the following evidence about the subject matter expert training he provides in marine response:

“Now, as I understand your evidence there's a third category of training. Is that right?---Well, I can only speak on the marine department side of things, and we do a lot of training and assessing on shift for the marine operators. We had a crane we had to - they had to be trained and assessed in how to operate the crane to launch the boats. We took on swift water rescue skills, which is a skills acquisition. The operators who got on that course had to be assessed in their swimming ability on shift by the officers, marine officers.” 41

[120] Mr Spencer accepted that assessment in these processes is practical not written. 42

[121] Mr Spencer also gave evidence concerning the support given in assisting those who are seeking to complete modules to gain entry to the course to advance to leading firefighter rank:

“In paragraph 6 of your statement, you say you work closely with firefighters to assist them in completing the modules that are required then to advance to the rank of leading firefighter. Do you accept that that work that you're doing there, that's part of the role of any station officer, irrespective of whether they're a subject matter expert?---Any officer with the training and assessment certificate IV can do that.

Well, any station officer can do it. I'm putting that any station officer who has come out of the course could do that?---No.

So you're suggesting that the four modules which have not been done by someone who has done the course would preclude them from assisting a firefighter to complete the modules required to advance to leading firefighter?---Yes. Because the MFB have a list on the intranet of all cert IV training assessor officers, and that qualified firefighter chooses one of them and gets all the paperwork sent to them, and then he coordinates with the firefighter to get him through the process for the assignments. If you're not a cert IV training assessor, your name is not on the list, you won't be approached.

How many people are on the list?---I don't know.

Sorry, how can you give the evidence you've just given? There's a list - - -?

---Because that's the process they go through - sorry.

You've said there's a list, you've said people look at the list, and then they approach someone who is designated on the list as having the qualification. You've never seen the list?---I've never seen the list, I've never seen my name on the list, but I know it's there because people contact me.” 43

[122] I accept the evidence of Mr Spencer that those who hold a Certificate IV are part of a process associated with coaching those who are seeking promotion to leading firefighter. There is some doubt about exactly how the process works given the evidence of Mr Wright that the MFB do not have a comprehensive training data base except for promotional courses. However, I accept the evidence of Mr Spencer that qualified firefighters are directed to certain station officers to provide coaching assistance with advancement to leading firefighter. I am satisfied that the holding of the Certificate IV assists with the quality of the coaching assistance provided. However, I cannot be satisfied from the evidence before me that all those with Certificate IV are a part of the process, that the process is a formal MFB process and that the process extends beyond those at Station Officer rank.

[123] I am satisfied from the evidence that those with the Certificate IV when on shift (as opposed to when working as an instructor at the training college):

• Do not conduct formal training and assessment for the promotional courses or training for a formal qualification.



• Do conduct training and assessment when working as an officially designated driving instructor.



• Do provide support to recruits but the certificate IV is not a requirement for this work and Station Officers who do not have a Certificate IV also carry out this work.



• Do provide subject matter expert instruction. If this is done at the training college then an instructor will assist. If this is done outside of the college (for example, in marine response) then this may involve training and assessment but it will not result in a formal qualification. The Certificate IV enables this work to be done effectively.



• Do provide coaching support to those seeking promotion to leading firefighter.

[124] I am satisfied that the streaming proposal of the MFB only applies to employees when engaged in specialist day work positions. The UFU claim relates to the use of the Certificate IV when on shift.

[125] However, those with the rank of Station Officer and above will complete 2 of the 10 units required for the Certificate IV in training and assessment. The evidence did not distinguish between the skills acquired through the completion of these two units and the skills acquired through the completion of the whole qualification and their relationship to the training and coaching work performed by firefighters on shift. In other words the evidence did not go to the extent to which the 2 units meet the skills and qualifications requirements for the training and coaching work performed by firefighters on shift and or to the additional benefit provided by the acquisition of the whole qualification for the work performed on shift. The evidence was clear that the whole qualification is required for formal assessment towards qualifications recognised under the Agreement and required for promotion. However, the evidence was that this work is not done by those on shift but by instructors at the training college.

[126] I consider it obvious that the completion of the whole qualification would improve the quality of the training and mentoring work of those firefighters who hold it, however, the extent of the additional benefit for the work required is not obvious. The UFU claim is $14.03 per week to be paid to a firefighter at the rank of Leading Firefighter or above who holds a Certificate IV in Workplace Training and Assessment (Certificate IV). I am satisfied that firefighters should not be paid an allowance for what they would acquire as part of the promotional courses the completion of which is then recognised in the additional rate payable for the higher classification. Therefore I have no proper basis to assess what the allowance should be for those at Station Officer rank and above. I accept that there will be some firefighters at Station Officer rank and above who do not have the two core units from the Certificate IV qualification because they completed their promotional course at an earlier time, however, the awarding of an allowance should be consistent with current arrangements and with what will be rational into the future.

[127] The UFU did not include those who work as instructors at the training college as part of their claim. However, although this was not put by either party, I consider that there could be some problems if those who work on shift were to receive recognition for the Certificate IV but those who do work at the college do not. It is clear from my decision to date in the instructor progression matter  44 that leading firefighters who have the Certificate IV and who work at the training college will have the opportunity for such recognition. However, I have indicated that it will not be automatic that those at higher ranks will have such recognition. I note this purely as a background consideration. My decision in this matter would not be altered by this consideration.

[128] I considered requesting further evidence and submissions from the parties on these matters. However, given that the Agreement will be subject to renegotiation in the near future I consider that further delay and associated uncertainty would not be fair or reasonable. I consider it appropriate to determine the matter based on the evidence and submissions before me. On that basis I am satisfied that it is appropriate for an allowance to be paid under certain circumstances to Leading Firefighters but on balance the case has not been adequately established at this stage for the payment of the allowance sought by the UFU to other ranks.

[129] I am satisfied that an allowance of $14.03 per week should be paid to a Leading Firefighter who is recognised by the MFB as a driving instructor or subject matter expert and who holds a Certificate IV in Workplace Training and Assessment (Certificate IV) and who provides training and assessment support including mentoring to other firefighters. Eligibility for the allowance shall depend on the holder continuing to meet any requirements associated with the qualification for currency and compliance. Eligibility for the allowance shall depend upon the employee being available to provide training and assessment support including mentoring and providing such support when required. The allowance shall only apply to operational firefighters. The matter of recognition of training qualifications for those on day work in the training or community safety departments is being dealt with separately.  45

[130] The UFU claim is for the allowance to be paid on an ongoing basis. This is the approach which applies to other qualifications allowances in the Agreement. Neither party provided a submission about why the allowance should be paid on an ongoing basis as opposed to being paid in the weeks or roster cycle when it is actually used in training and assessment support including mentoring. There is no basis to treat this qualification differently from the other qualifications allowances in the Agreement.

Meal Allowances

[131] Evidence was given by firefighters Colin Matheson, Paul Henderson, Damien O’Toole and Michael Cecchetto 46 concerning the inadequacy of the current meal allowances. The relevant taxation determination was also provided.47 The determination outlines the amounts which the Commissioner for Taxation considers are reasonable for the substantiation exception in respect to claims made for overtime meal allowance expenses for food and drink in connection with overtime worked and where meal allowance has been paid under an industrial instrument.

[132] The UFU witnesses argue that the current allowance is not sufficient to cover the expense of purchasing a basic lunch or dinner. Mr Matheson gave evidence that the most common claim was for a delayed meal, “If firefighters are to be encouraged to avoid junk food, to eat healthily and to maintain their fitness, it is important that allowances that reflect the basic cost of living replace those currently prescribed.” 48 Mr Henderson gave evidence that if the allowance rate was “more reasonable” firefighters would have a lot more choice as to the quality of food they could purchase. Mr O’Toole gave evidence of a number of incidents when meals prepared by firefighters were spoilt due to the interruption of fire calls and that the allowance was insufficient to purchase a replacement of equivalent quality. Mr O’Toole, Mr Cecchetto and Mr Henderson gave evidence that allowances are only claimed when the criteria in the Agreement are met.

[133] Cross examination of the witnesses established that when employees are on normal roster they will sometimes prepare a communal meal, they will sometimes bring food in from home or they will sometimes buy something to eat during the shift. The evidence suggested that the cost of meals in these circumstances did not generally significantly exceed $15. The cost was $13-14 for a purchased meal in respect to Mr Matheson, $8 for a communal meal in the case of Mr Henderson. $8 for a communal meal in respect to Mr O’Toole, $9 for a purchased meal and $15.50 for a communal meal in the case of Mr Cecchetto. Where communal meals are a practice an employee recalled or retained for work will still be able to participate in the arrangement. Mr Matheson gave evidence that he was able to quickly arrange to bring food from home on the last occasion he was recalled. Mr Matheson accepted that eating requirements and patterns on recall did not significantly differ from the patterns when on rostered shift. The actual cost of a meal to the firefighter will vary depending upon location, practices existing at a station, individual preferences, individual family circumstances and notice of the requirement for overtime.

[134] The MFB argue that the spoilt meal allowance is a new allowance in the 2010 Agreement and that it was not included in the reserved matters.

“The evidence of Ms Schroder supports the conclusion that those who negotiated on behalf of the MFB and were party to the agreement to reserve certain matters for later determination, understood that the spoilt meal allowance was not included as part of this process. Further support for this position can be derived from the reserve matters correspondence (Exhibit UFU-8) which refers simply to ‘meal allowances’ and the correspondence from Mr Marshall to Mr Wright also dated 17 August 2010 (attachment ‘A’ to the UFU First Submissions) which in the context of what was said to reflect an agreed position by the parties to approach FWA for private arbitration referred to the ‘quantum of monies payable for meal allowances, both in the context of the late-meal break and general meal allowance entitlement’.” 49

[135] I consider that the expression “meal allowance” would properly be read as a generic expression covering spoilt meal allowance but the fact that the correspondence of Mr Marshall referred specifically to “meal allowances, both in the context of the late-meal break and general meal allowance entitlement” does not suggest the inclusion of spoilt meal allowance. The UFU argue that the expression “general meal allowance” includes spoilt meal allowance particularly when read in conjunction with the relevant allowance rates table in the Agreement. Ms Schroder conceded in cross examination that had an increase in meal allowance been finalised during the negotiations rather than being reserved, it is likely that spoilt meal allowance would have been included in any adjustment. However, in my assessment these matters do not alter the fact that the reserved matter, whether by oversight or design, did not include the spoilt meal allowance. I do not regard the spoilt meal allowance as being included in the reserved matters.

[136] The MFB argues that the ATO ruling TR2004/6, Income tax: substantiation exception for reasonable travel and overtime meal allowance expenses, states at paragraph 33:

‘In setting the reasonable amount for the purposes of this Ruling the Commissioner does not determine the amount of allowance an employee should receive or an employer should pay their employees. The amount of an allowance is a matter to be determined between the payer and the payee. The Commissioner determines the reasonable amount of travel and meal allowance expenses only for the purpose of the tax law, that is the amount that will be accepted for exception from the requirement to obtain and keep written evidence for substantiation purposes. It is not provided for the purpose of being used for employment or industrial relations purposes in setting the amount of allowances paid. The Commissioner is not entitled under tax law to have any specific regard to the fairness or appropriateness of the allowance paid as part of any remuneration arrangement’. (Emphasis added)

[137] The industrial context is that the ATO rate is rarely the basis for overtime meal allowance in awards and agreements. In many agreements and Modern Awards the rates are comparable with those in the Agreement. For example, in the Victoria Police Force Enterprise Agreement 2011 the overtime meal allowance is $16.08 and $21.33 for dinner. I agree with the MFB that comparisons with other agreements are dangerous because the industrial and bargaining contexts differ. However, I am satisfied that the rate in the Agreement is not widely inconsistent with industrial standards.

[138] I accept the evidence presented by the UFU that the meal allowance in some circumstances does not provide for quality meals. The MFB suggests that the evidence concerning only $8.10 being available for some meals is misleading because this only applies to a second meal allowance on shift when taxation is required to be taken out. In some cases individuals will be able to claim back some of this tax when they put in their tax return. In response to the submissions of the parties I sought clarification of this at the conclusion of proceedings. Following the hearings the MFB confirmed that this was the case and that the practice was consistent with ATO rulings and the UFU did not object to this information. However, even accepting these submissions the UFU evidence is that in some cases the allowance at $14.98 is inadequate to provide for quality meals.

[139] There is a need to distinguish between meal allowance provided when an employee is travelling away from home and meal allowance provided when overtime is performed. The circumstances are often quite different. I do not accept the submission of the MFB that I should take into account the provisions in respect to the working of overtime including the penalty payments and the minimum periods of engagement. In my view these provisions are to compensate for the inconvenience and disruption of working overtime. The meal allowance is to compensate for the additional costs involved in providing a meal particularly given that normal or pre-arranged meal arrangements may have been disrupted.

[140] Although I accept that the UFU has provided evidence of some inadequacy in the meal allowance the extent of that inadequacy and the frequency of its occurrence has not been established by the evidence. The evidence suggests that the cost of meals will commonly be within the level of the allowance even in cases where the meal is of good quality. This is because of the practice of communal meals and bringing food from home. Of course this is not practical in all cases. The evidence of the inadequacy of the allowance is not strong. In these circumstances, to determine an appropriate allowance by arbitration on the merits would require more extensive examination backed by more detailed evidence including of costs, circumstances and frequency.

Childcare Allowance

[141] Evidence was given by firefighters Paul Chesher, Christopher Trevean and Samuel McKridy 50 concerning the merits of a childcare allowance. Mr Chester gave evidence of the cost of additional before and after school care to enable him to respond to requests for recall, overtime and retention. Mr Tevean gave evidence of additional babysitting costs. Mr McKirdy gave evidence of additional childcare centre costs and that a premium is charged for extra days or time. There was little evidence of the frequency of situations where additional costs are incurred due to having to arrange additional childcare when working recall, overtime or retention.

[142] The UFU argues that MFB employees are encouraged to be available to perform recall, retention and overtime work. The UFU argues that the MFB will benefit from increased productivity in situations where employees need to juggle their own work with that of their partners or with the responsibilities of sole parenting as it will increase the availability of such employees to perform recall, retention and overtime work. The UFU argues that it is appropriate to have parity of conditions in this respect with the CFA, Victoria Police, Victorian Public Sector Workplace Determination 2012 and the public sector agreement for nurses and midwives which provide for childcare costs reimbursement. In the case of Victoria Police the agreement provides for a maximum reimbursement of $65.78 per day. However, the Victoria Police agreement only provides for payment where the overtime is required by the employer.

[143] I do not consider that it would be appropriate to determine a childcare allowance on the basis that it is necessary to ensure that an employee has access to voluntary overtime work and the additional income associated with it. One of the reasons that overtime is not compulsory is to allow for the variation in the family circumstances of individual employees at different stages of their working life. The only situation covered by the UFU’s proposed childcare provision where an operational employee may be required to perform overtime is where, due to unforeseen operational demands (typically connected with a response to an incident) an employee is detained on the job at the end of his or her shift.

[144] The UFU evidence suggests that the greatest problem faced by firefighters is making arrangements for childcare at short notice. This generally will only be unavoidable where an employee is detained for operational reasons at the end of the shift.

[145] It is not readily apparent how the provision of an allowance will overcome the problem of arranging childcare at short notice.

[146] The MFB point to many other situations including in the firefighting industry where there is no provision for childcare allowances. The MFB argue that the industrial background particular to the enterprise must be considered prior to using the provision of an allowance in another agreement as a precedent.

[147] The MFB argues that the situation in the MFB can be clearly distinguished from that applying to the CFA and the provision for childcare allowance in the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (Clause 43). Mr Stacchino, a former employee of the CFA and currently a Deputy Chief Officer of the MFB, gave evidence that the fundamental geographic and organisational differences between the CFA and the MFB render the CFA a poor comparator for the purpose of establishing the merits of the childcare claim. 51 This is particularly so when regard is had to the unique challenges faced by the CFA in securing adequate staff to fill vacancies at provincial locations, without the benefit of a centralised rostering system of the type which is utilised by the MFB. Mr Stacchino gave evidence that where a recall position arises, the MFB can fill the vacancy from a pool of 220 operational employees per available shift. The fact that it will typically require 6 attempts before a position is filled shows that MFB employees have a much greater opportunity to decline overtime than applies in the CFA. Even where retention rather than recall is involved, employees at a particular station have the option to decline to work as generally all crew at the station will be offered the opportunity.

[148] In cross examination Mr Stacchino accepted that there was some moral pressure on firefighters to agree to work retention. However, he believed that the financial incentive to work overtime outweighed any disincentive of the additional costs of making childcare arrangements. He accepted that there were rostered relievers in the CFA system and over strength officers in the MFB system and that these were in similar proportion. However, in the CFA the number of vacant positions made the situation of filling rosters more challenging. He also gave evidence that the system in the MFB which required rostering of minimum staffing for each appliance when compared to the system in the CFA where rostering was not appliance specific meant that it was more difficult for overtime to be declined in the CFA.

[149] Ms Schroder gave evidence that when the issue of childcare requirements was last investigated by the MFB in 2005, the population of operational employees surveyed was so unresponsive that the MFB formed the view that childcare was not a major concern for the firefighter workforce. The MFB argue that there is nothing in the material now provided by the UFU in support of its claim for childcare reimbursement that suggests that the situation has markedly changed since this time. In cross examination Ms Schroder accepted that employees were not asked whether or not they were seeking assistance with childcare costs but rather the survey was directed at identifying likely demand for a possible joint venture childcare centre. I agree with the UFU submission that the survey does not really tell us whether or not childcare and childcare costs are a significant concern for firefighters or whether or not assistance with childcare costs would mean more firefighters would be able to agree to requests for recall and retention.

[150] I accept that access to and the cost of childcare is a problem for many workers like firefighters who work irregular hours. However, I also accept the evidence of the MFB that distinguished the situation in the MFB from that applying in the CFA where there is a provision for childcare assistance. I am concerned at the lack of evidence which would enable even a rough estimation of the likely cost of the granting the claim.

[151] I considered the possibility of restricting the allowance to situations where overtime was compulsory such as in the case of a fire or other emergency which prevented a firefighter from being able to finish at the conclusion of their shift. However, in my view the major problem in this situation is not the cost of childcare but the difficulty of making childcare arrangements at very short notice. I do not see that a childcare allowance is the best way to address this problem. I consider that part of the reason for the payment of penalty payments and the requirement for a minimum period of engagement on recall and retention under the Agreement is to enable employees to meet the additional costs which might be associated with the inconvenience and disruption of working overtime.

[152] At this stage I do not regard the evidence to be sufficient to justify the granting of the UFU claim for a childcare allowance.

Representation Allowance.

[153] The UFU acknowledge that firefighters have immunity from certain liabilities as a consequence of Section 54A of the Metropolitan Fire Brigades Act 1958 (Vic). This applies where the firefighter has acted within the terms and conditions of their employment and in good faith and the MFB will be liable to pay any damages arising from acts or omissions of its employees in these circumstances.

[154] However, the immunity does not prevent a firefighter from being named as a defendant in a writ, from being required to defend legal proceedings or from having to give evidence in a court, tribunal, Coronial Inquest or Royal Commission. In such circumstances the firefighter may require representation and in some circumstances this may need to be representation independent of the MFB. There are circumstances where the UFU argue the MFB’s vicarious liability may cause an actual or perceived conflict of interest. Proceedings can arise from the performance of duties at a fire and also from incidents or accidents on the way to a fire incident.

[155] The UFU point to a similar clause to that which they are seeking in these proceedings in the Victorian Public Service Workplace Determination 2012 (Clause 15).

[156] Mr Marshall gave evidence concerning the case of Victorian Workcover Authority and Japanese Screens & Interiors Pty Ltd 52 regarding payments made to a critically injured firefighter Mr Zapart. In this situation the UFU sought independent legal representation for those MFB employees who were requested to provide evidence. The MFB provided legal representation through its representative in the case but refused to fund independent representation. The representative offered was not independent in the view of the UFU. As a result the UFU funded the independent advice and representation. Mr Marshall also referred to two other cases where the UFU paid for independent advice for members accused of criminality in the course of performing their duties in past 4 to 5 months.53

[157] The MFB argues that under the Metropolitan Fire Brigades Act 1958 (Vic) (MFB Act) and in particular, s.54A, operational employees enjoy a broad statutory immunity from acts or omissions done in good faith and in the exercise of a class of prescribed powers and duties recognised under the MFB Act. Section 54A provides:

“54A Immunity from certain liabilities

The Chief Officer, any member of a unit and any officer or member of an interstate fire brigade or international fire brigade are not personally liable for anything done or omitted to be done in good faith –

(a) in the exercise of a power or the discharge of a duty under section 32B, 32C, 55, 55A, 55B, 55C, 55D or 55E; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under that section.”

[158] The MFB argues that the immunity therefore extends to absolve operational employees from personal liability for conduct carried out in connection with action on alarm of fire, and all which that entails (s. 32B), destruction or removal of buildings or structures damaged by fire (s. 32C), the provision of rescue and extrication services (s. 55A), the provision of road accident and rescue services (s.55B), the provision of protection services (s. 55C) and the provision of emergency prevention and response services (s. 55D). The MFB argue that the courts in Victoria have indicated that the proper approach to statutory immunity provisions (such as s.54A of the MFB Act) is that they should not be construed in a narrow or restricted fashion. 54

[159] The MFB argues that the immunity provisions are better than those enjoyed by members of Victoria Police in that the sole criterion on which the existence of protection is based is that the act or omissions be done in ‘good faith’. MFB argues that it follows that the immunity should be available to operational employees in respect of most, if not all, conduct arising from the course of employment such that the employee would not ultimately be required to defend legal proceedings.

[160] Mr Wiseman, general counsel for the MFB, gave evidence that aside from one TAC proceeding involving an employee in his personal capacity and some motor vehicle recovery proceedings where operational employees were driving the MFB vehicle concerned, there is no known instance over the last ten years, where an operational employee has been named as a defendant in a legal proceeding. It is also the case that in respect of the same period, there is no known legal proceeding where it has been necessary for an operational employee to invoke or rely upon their statutory immunity.

[161] The MFB argue that because of the lack of demonstrated need none of the industrial instruments that operate in respect of each of the State and Territory fire and emergency services include a provision dealing with automatic funding of legal representation.

[162] Mr Wiseman also gave evidence of the support provided to operational employees in the form of legal advice from the MFB. The existing practice of assisting MFB employees in connection with court proceedings was recently formalised and documented in a Work Instruction. 55 I accept the evidence that over the last 12 months, the Corporate Governance Team has directly assisted between 30 and 40 operational employees.

[163] In cross examination Mr Wiseman accepted that a conflict of interest could arise but he was of the view that it was a rare occurrence. Mr Wiseman accepted that in respect of the two cases raised by Mr Marshall he had been made aware of one of the cases and had not made a direct offer of assistance. Mr Wiseman said that in such a case if a firefighter asks for legal assistance it will be given. Mr Wiseman agreed that the new Work Instruction had not been subject to consultation with the UFU. He also agreed that the Work Instruction did not make any mention of conflict of interest or the capacity to be provided with independent representation. In his statement Mr Wiseman said that in cases where there is a conflict of interest the MFB will consider funding alternative legal assistance except where a firefighter has acted in bad faith and or beyond the scope of their employment. 56 In response to my question he said that “if they were, in fact, acting within the course of their employment that representation would, in fact, be provided.”57 He said this was a matter for his discretion but was not included in the Work Instruction.

[164] The MFB argue that generally firefighters’ involvement in proceedings will be as a witness to an event or in an expert capacity. In such circumstances conflict of interest between the firefighter and the MFB is most unlikely. The MFB argue that the example given by the UFU in respect to Japanese Screens was not an example of a genuine conflict of interest. In a case where there was a conflict of interest the MFB submitted that they would provide alternative legal assistance if necessary. The only exception to this would be where a firefighter has acted in bad faith and or beyond the scope of their employment.

[165] I consider that the MFB estimation of the cost of the UFU claim to be too high. Not all of the cases which are currently dealt with by the MFB would end up being dealt with externally, nor would they all cost the maximum possible amount.

[166] The problems as I see it are:

• There is no evidence that the 30-40 firefighters who received legal assistance from the MFB did not receive appropriate representation or that there was a conflict of interest in them being represented by the MFB.



• In a case where there may be an argument as to whether or not a firefighter had acted in good faith, a conflict of interest may arise but subsequently it may be established that there was no lack of good faith.



• The provision of an allowance in the form proposed by the UFU would mean that the MFB would be required to fund representation in all cases which have arisen from the course of employment even where there is no issue of conflict of interest.

[167] I am not satisfied that there is merit in requiring the MFB to fund independent representation in all of the circumstances covered by the UFU claim. This is particularly so given there is evidence before me that in most cases independent representation is not necessary and that the current arrangements of assistance through the MFB corporate governance team are adequate. There was no evidence or submission before me which explained why I should find that the MFB should be required to fund representation in a case where it is established that the firefighter has not acted in good faith. However, I do consider that there is merit in the argument that the MFB should support an employee to have independent representation where the employee has a well founded and reasonable belief that there may be a conflict of interest.

[168] The evidence before me is not sufficient to enable me to draft a provision for an allowance that deals appropriately with these issues. Given the complexity of the issues surrounding how it is determined whether or not there is a well founded and reasonable belief that there may be a conflict of interest I consider that it would be much more appropriate at this stage to resolve the dispute by a change in the MFB policy to provide for independent representation in such circumstances. This may not fully resolve the matter to the satisfaction of the UFU but outstanding matters can be pursued in later bargaining. I strongly recommend that that the parties should discuss an appropriate amendment to the MFB Work Instruction or policy. I could not determine a change to the Work Instructions as it is not within the scope of the dispute before me.

Conclusion.

[169] In this decision I have rejected a number of claims. I have found that there is merit in two matters. I have decided that a Certificate IV qualifications allowance shall be introduced. I have decided that there is some merit in the claim for a representation allowance but I have found that it is not practical and or appropriate to introduce such a provision at this stage on the basis of the evidence before me.

[170] In respect to the claim for representation allowance I recommend that the parties should discuss an appropriate amendment to the Work Instruction.

[171] In respect to qualifications allowances I determine that an allowance of $14.03 per week shall be paid to a Leading Firefighter who is recognised by the MFB as a driving instructor or subject matter expert and who holds a Certificate IV in Workplace Training and Assessment (Certificate IV) and who provides training and assessment support including mentoring to other firefighters. Eligibility for the allowance depends on the holder continuing to meet any requirements associated with the qualification for currency and compliance. Eligibility for the allowance shall depend upon the employee being available to provide training and assessment support including mentoring and providing such support when required. The allowance shall only apply to operational firefighters. The matter of recognition of training qualifications for those in the training or community safety departments is being dealt with separately.

[172] I request the UFU to provide the MFB with a draft determination or order consistent with these findings by 22 November 2012. The MFB is requested to respond by 23 November 2012. If the parties cannot agree on the draft determination or order it should be provided to me in tracked changes form. I will then finalise the determination or order in respect to the qualifications allowance. The determination or order shall operate from the first pay period after the date of the date of this decision.

COMMISSIONER

Appearances:

Mr W Friend and Ms A Forsyth for the UFU.

Mr M McDonald, Mr M McKenney, Ms C Symons and Mr J Tuck for the MFB.

Hearing details:

2012

Melbourne

May 21, 22

June 26, 27

August 13

October 10

Final Submissions in response to Appeal decision in Print PR531186 November 16

 1   PR501990.

 2   [2012] FWA 1085 and [2012] FWA 5330.

 3   [2012] FWA 1085 at paras 7 to 25 and [2012] FWA 5330 at paras 35 to 40.

 4   Exhibit UFU 8 and [2012] FWA 1085 at para 21.

 5   Exhibit UFU 8, [2012] FWA 1085 at para 22, and Exhibit MFB 4 at para 16.

 6   Exhibit MFB 4 at para 17 and Attachment KS 6.

 7   Exhibit MFB 4 at para 17 and Attachment KS 6.

 8   PN11 to PN13.

 9   Exhibit MFB 1.

 10   Exhibit MFB 1.

 11   Exhibit MFB 2 at para 28.

 12   Exhibit MFB 1.

 13   Exhibit UFU 2.

 14   Exhibit UFU 1.

 15   Exhibit UFU 3.

 16   Exhibit UFU 2 at para 16 and Exhibit UFU 1 at para 17.

 17   Exhibit UFU 4 at para 8.

 18   Exhibit UFU 4 at para 13.

 19   Exhibit UFU 4 at paras 9 to 12.

 20   PN784.

 21   Exhibit MFB 3.

 22   Exhibit MFB 6.

 23   Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 at para 24.

 24   PN324.

 25   Exhibit MFB 6, Attachment PM 3 and Exhibit MFB 3 at para 17.

 26   Exhibit UFU 2 at paras 9 to 16 and Exhibit UFU 1 at paras 11 to 13.

 27   Exhibit UFU 12, Exhibit UFU 13 and Exhibit UFU 14.

 28   Exhibit UFU 12 at para 5, Exhibit UFU 14 at paras 5 to 6, and Exhibit UFU 13 at para 15.

 29   Exhibit UFU 14 at paras 4 to 5 and 9, and Exhibit UFU 13 at paras 5 to 7.

 30   Exhibit UFU 14 at para 8, Exhibit UFU 12 at paras 7 to 8 and Exhibit UFU 13 at paras 13 and 16 to 18.

 31   Exhibit MFB 9.

 32   Exhibit UFU 16.

 33   Exhibit UFU 15.

 34   Exhibit UFU 17 at para 8.

 35   Clause 70.6 of the Agreement.

 36   Exhibit MFB 9 at para 31.

 37   Exhibit MFB 9 at paras 32 to 34.

 38   Exhibit MFB 9 at paras 39 to 40.

 39   PN1223 to PN1228.

 40   PN1237 and PN1239 to PN1241.

 41   PN1241.

 42   PN1265 to PN1268.

 43   PN1269 to PN1272.

 44   PR525578

 45   PR525578

 46   Exhibits UFU 24, 25, 26 and 27.

 47   Exhibit UFU 19, Attachments B and C.

 48   Exhibit UFU 24 at paragraph 8.

 49   Exhibit 11 at paragraph 9.

 50   Exhibits UFU 20, 21 and 22.

 51   Exhibit MFB 10.

 52   [2010] VCoronC 101, 23 August 2010.

 53   Exhibit UFU 23 at paragraph 22.

 54   See Victoria v Horvath [2002] VSCA 177 at [49].

 55   Exhibit MFB 13, Attachment CCW-1.

 56   Exhibit MFB 13 at paragraph 41.

 57   PN2147-2148

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