It is clear to anyone paying attention to the news that there are significant industrial issues affecting Victoria’s Country Fire Authority and the relationship between employed firefighters, the United Fire Fighter’s Union, the CFA and CFA volunteers.  The matter is such that I’m asked a ‘couple of questions … that centre around the current political climate’.

A mass rally has been called for tomorrow* at Treasury Gardens in the Melbourne CBD, the volunteer association has directed members to wear their yellow PPC so as to identify them as CFA volunteers (has brand logo’s attached). The Chief office has in the past made it clear to employee’s (united Fire Fighting members) that clothing identifying the organisation was against CFA policy and not to be worn to political protests or rally’s. As a result, the United Fire Fighters Union has its own unbranded PPC for such events.  Would it be reasonable to apply the Chief Officers clear instruction to volunteers? If not, then what would constitute the disparity?

Sources have also indicated that some brigades would refund members (and presumably their families) the financial cost to attend the rally/protest, as this reimbursement comes from publicly donated monies (fund raising) for the purpose of administration and operational costs not covered by the organisation does this reimbursement raise propriety issues if not constitutional or legal implications when used to support political action?

We have been informed in the past that whilst monies gained from fundraising and donations are considered the individual brigades the reality is that the CFA has ownership and ultimately responsibility for said accounts. Does this in anyway impact legally on the decision to reimburse members.

* I received the email on Sunday 5 June so inferred that the rally was scheduled for Monday 6 June but others have said it will be/was on 5 June.

Whilst the questions are very interesting, I don’t think I should answer them.  On the ‘About’ page on my blog I say:

This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events … If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.

Given the ongoing nature of the current dispute this is clearly about ‘actual events’ not a theoretical possibility and it is likely (if I can be so bold) that what I say might actually affect decisions by people about whether they go to the rally or what they wear.

And I can’t give specific advice here even if I wanted to. I haven’t seen ‘the Chief Officer’s clear instruction’ so I don’t know if it applies to volunteers or not.   As for the use of funds that would require detailed knowledge of how particular brigades are established, and relevant financial delegations and Victorian rules on using finance.    The CFA is different to say the NSW Rural Fire Service.  The CFA registers brigades upon their application so it is still a more old-fashioned model where people can form a brigade and then apply to be part of the CFA (s 23(1)(b); noting that it is an offence to operate an unregistered brigade (s 26)).  In New South Wales, RFS brigades are established by the RFS so they don’t have any independent existence (Rural Fires Act 1997 (NSW) s 15; see also ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).   If CFA brigades are established and then registered they may have property independent of the authority and that is implied by s 22 that provides that ‘A person in whom personal property is vested for or on behalf of a brigade …may a) transfer the property gratuitously to the Authority’.  I can certainly understand why the CFA management would not want brigade money spent on sending members to rally against the government but whether they have that much direction over the use of brigade funds would require much more detailed knowledge of actual delegations and the structure of the particular brigades involved. It is not for me to tell CFA brigades or their members what they can do with their money in circumstances where it is at least likely that they may seek to act on that advice. 

Finally, does it raise constitutional issues?  Yes it must, see Speaking out on social media (May 9, 2016) – there is an implied right to free political speech. One can understand why the CFA doesn’t want people to represent themselves as CFA members when protesting some general government policy or running for election.  For example, a person handing out ‘how to vote’ cards at the forthcoming federal election should not wear their uniform as their CFA membership is irrelevant and would be an attempt to add some improper link to the CFA.  But a protest where the protest is about the CFA may be a different issue. People don’t need their CFA uniforms to show they are members of the CFA if they are at a protest of CFA members expressing their views on issues affecting the CFA.  Whether they are in their PPE or not it’s clear that they are members of the CFA and their membership of the CFA is an issue of essential relevance to exercising that right of political free speech – the very point is that the people protesting are members of the CFA.  We’ve seen fire brigades protest before using fire service appliances and uniforms – see Fire Strike and associated photos and description of fire fighters and appliances rallying before the NSW Parliament.   Whether that is sufficient to attract the constitution right should there be an attempt to discipline members who wear their PPE to the rally would be a debatable point.   To take that debate further would, however, again be giving specific legal advice to people who may well choose to act on it.  I’m in no position to say to members of the CFA who may be planning to go to the rally, that they do or do not have a constitutional right to wear their uniforms.  

So there are legal issues here. Issues of:

  • How autonomous are CFA brigades and how can they spend money that has been collected by the brigade for purposes not covered by the CFA? and
  • Would the constitutional right of free political speech extend to allow members to resist a direction not to wear CFA issued PPE to a rally where membership of the CFA is in fact the very issue?

On this blog I’m happy to say that they are relevant legal issues that could arise should anyone seek to take disciplinary or legal action against a brigade, the brigade executive or a member who attends the rally.  I am not prepared to give advice on what the answer actually is or will be; these questions need to be directed to the organisers of the rally.