I have hesitated getting involved in this debate for a number of reasons.
- Accessing the relevant documents has been difficult but the CFA did put them up on their website last week.
- The proposed Country Fire Authority / United Firefighters Union Of Australia Operational Staff Enterprise Agreement 2016 runs for 229 clauses, 27 Schedules and 406 pages.
- On many issues that are discussed on this blog I am the only commentator. There has been much commentary on this issue including from Rush QC, former counsel assisting the 2009 Victorian Bushfires Royal Commission (‘CFA dispute deal risks our volunteers’ future: Jack Rush QC’ (22 June 2016)), and legal opinions from the Victorian Equal Opportunity and Human Rights Commission and the Government’s Senior Crown Counsel.
Even so, I do want to enter into the debate in a limited way and consistent with what is, I’m told, my philosophical position as a ‘legal positivist’ (the law is what it is – it’s for others to say whether it’s good or bad law). Consistent with my approach since starting this blog in 2009, it’s my job to ‘call it as I see it’ even if that is entering a political controversy and even though, whatever conclusion I come to, it will be unpopular with either Volunteer Fire Brigades Victoria or the United Fire Fighters Union and both those organisations represent ‘my’ audience.
Introduction and the Country Fire Authority Act 1958 (Vic).
I do have concerns with the proposed Enterprise Agreement and with provisions that are unique to the Country Fire Authority Act 1958 (Vic). They are sections 6F-6I:
6F. Recognition of Authority as a volunteer-based organisation
6G. Recognition of the Volunteer Charter
6H. Authority to have regard to Volunteer Charter
6I. Authority’s responsibility to encourage, maintain and strengthen capacity of volunteers
Section 6F says (emphasis added) that the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’. According to s 6I ‘The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services.’ Pursuant to the volunteer charter, the CFA is to ‘Recognise and acknowledge that a primary responsibility of CFA and people employed by CFA is to nurture and encourage Volunteers and to facilitate and develop their skill and competencies’.
It does appear that the current proposed Staff Agreement would not give effect to those provisions. To take just two examples, the proposed cl 83.5 says:
Consistent with the increases in staffing provided in this Agreement, the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations. This requirement applies to integrated stations in Districts 2, 7, 8, 13, 14, 15 and 27. Consistent with the increases in staffing provided for in this Agreement, CFA will also ensure that there is a minimum of seven professional firefighters to fireground incidents that professional firefighters are dispatched to before commencement of safe firefighting operations for the following integrated stations being Shepparton and Mildura professional firefighters by no later than 1 January 2017 and Warrnambool professional firefighters by no later than 1 January 2018.
An integrated station ‘is a fire station which includes professional firefighters appointed to the station’ [11.24].
Victoria has not adopted the model Work Health and Safety Act 2011. If it had the Act would impose the same duty to ensure work health and safety regardless of whether or not the worker is a volunteer or paid staff member (see Work Health and Safety Act 2011 (Cth) s 7 ‘Meaning of worker’). Certainly if that Act applied, and if it was necessary to send seven professional firefighters to ensue firefighter safety, it would be equally necessary to send seven volunteers. Under the Occupational Health and Safety Act 2004 (Vic) s 21, the primary duty is owed by an employer to an employee and a volunteer is not an employee. Even so an ‘employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23). The CFA does have a duty to ensure for the safety of its volunteers.
The effect of clause 83.5 is that if the CFA sends one paid firefighter, they have to send 7. They can’t send 4 paid firefighters and 3 volunteers or any other combination. It has to be seven paid firefighters.
To ‘integrate’ means (according to Oxford Dictionaries online):
1 Combine (one thing) with another to form a whole:
1.1 Combine (two things) so that they form a whole:
1.2 (Of a thing) combine with another to form a whole:
2 Bring (people or groups with particular characteristics or needs) into equal participation in or membership of a social group or institution:
2.1 Come into equal participation in or membership of a social group or institution
A fire station is not ‘integrated’ if the volunteers and paid firefighters are not combined into a whole but are treated differently because of their employment status. Clause 83.5 would not create an ‘integrated station’ but would, instead, create a situation akin to the situation in NSW where NSW Fire and Rescue has ‘permanent’ and ‘volunteer’ brigades (Fire Brigades Act 1989 (NSW) ss 8 and 9). Even if they work out of the same station they are different brigades rather than an ‘integrated’ brigade or station (see Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013) and the comments attached to that post).
It is not clear why, if what is intended is an integrated station and if the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ that the safety concerns wouldn’t be met by ensuring seven firefighters, regardless of their employment status. That is cl cl 83.5 could say:
… the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.
Clause 83.5 as currently drafted does appear to be inconsistent with s 6F of the CFA Act.
Clause 36.4 says:
All employees covered by this agreement shall only report to operational employees under this agreement or at the rank of DCO or CO when responding to fire alarms or incidents under this agreement except in the case where the incident is a level 3 multiagency incident or to a CFA/MFB incident controller at an incident.
The UFU is quoted as saying ‘volunteers acting as incident controllers would still have the capacity to give orders’ (‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 Jun 2016). That is quite correct, but it does mean that a volunteer can’t act as crew leader, sector commander or some other position other than IC and exercise command responsibility over a paid firefighter, regardless of their relative experience and training. Again this appears to be inconsistent with s 6F and the concept of an integrated service.
This position would also be contrary to the reasoning behind a recommendation of the 2009 Victorian Bushfires Royal Commission. The Royal Commission recommended (Recommendation 18) that:
The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire.
Disputes over land tenure was not to influence who acted as IC. Clause 36.4 still allows a volunteer member of the CFA to act as IC but as noted, not at lower levels of control. It can be foreseen that an issue will arise at the next Royal Commission where ‘a suitably experienced, qualified and competent’ volunteer was unable to exercise fire ground decisions because he or she could not require less experienced but paid firefighters to report to him or her.
There are other clauses with respect to the implementation of decisions and the development of policy that are problematic. For example, cl 90.4 says:
90.4. The parties acknowledge that the occupation of firefighting is an extremely hazardous and dangerous occupation where firefighters can be deployed into known and unknown hazardous situations to perform the rescue of life and protection of property.
In this context, the parties have prioritised the health and safety of the employee covered by this Agreement by agreeing on the following clause.
The CFA and UFU must agree on all aspects of the:
90.4.1. articles of clothing;
90.4.2. equipment, including personal protective equipment;
90.4.4. station wear; and
to be used or worn by employees. ‘All aspects’ includes, without limitation, design and specifications. This applies to new and replacement items. ‘Appliances’ is defined as including any vehicle used by employees (including vessels and aerial vehicles) and any vehicle attachment such as a POD or trailer.
That clause is problematic for two reasons. First the section requires that the CFA and the UFU ‘must agree’ on the issues listed. The CFA, as an employer, has the primary duty to ensure the health and safety of its employed firefighters (Occupational Health and Safety Act 2004 (Vic) s 21). The Occupational Health and Safety Act sets out detailed procedures to ensure that obligation is met and to provide for consultation between employees and employers (ss 35 and 36; see also s 43-94 on representation of employees and rights of relevant employee organisations). Consult does not necessarily require ‘agreement’ (see Firefighters and the need to consult with landowners in WA (September 1, 2015); The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016); and A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)). I don’t know what the terms of the current Enterprise Agreement say, or whether such clauses exist in other agreements, but a clause that requires employer and employee agreement is a much tougher test than a duty to consult but with final responsibility for any decision resting with the employer.
This clause might also complicate any OHS enforcement. Under the OHS Act it is the duty of the employer to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (s 21). If, after consultation, the employer implements a policy or introduces technology that does not ensure safety then the employer can be compelled to rectify the work arrangements and may ultimately be prosecuted. The final say, and final responsibility, lies with the employer.
What is ‘reasonably practical’ requires consideration of ‘the availability and suitability of ways to eliminate or reduce the hazard or risk’ (s 20). If the CFA determines that there is some way to reduce a risk that is commercially available and suitable, but there is no agreement from the UFU then the measure is not ‘available’ to the CFA. Under this clause an employer is constrained, even if there is a risk to health and safety the employer can’t take action to rectify it without ‘agreement’. Whether that would be a successful defence or not would remain to be seen but it would certainly complicate the issue.
Second this clause says ‘the parties have prioritised the health and safety of the employee covered by this Agreement…’ Because volunteers are not party to the agreement I would infer that this clause is intended to be read as “the parties have agreed to prioritise the health and safety of employees ahead of other concerns” not as “the parties have agreed to prioritise the health and safety of employees ahead of others, such as volunteers”, but it is ambiguous and the clause could well see health and safety for paid firefighters dealt with in a different way to volunteers. Under this clause it could be the case that volunteers could be issued with clothing, equipment etc that the paid staff would not agree to. Again if Victoria had adopted the Model Work Health and Safety Act 2011 that would be problematic, because any obligation owed to a ‘worker’ is owed whether that worker is paid or a volunteer. In Victoria the Occupational Health and Safety Act deals with ‘employees’ and ‘employers’ so this clause may be allowed but it could lead to differential levels of uniform and equipment.
Other concerns and the Fair Work Commission
The CFA has other concerns regarding the position of volunteers – Country Fire Authority and United Firefighters’ Union of Australia Bargaining Dispute s.240 B2015/1496 and B2015/1498 15905955/1 CFA – Alternative Proposal to the Union Claim Version 17.2/1.0 Preserving the role of Volunteers. In his non-binding recommendations Commissioner Roe said (at ):
I do consider it necessary to recommend changes to the Agreement to underline that the Agreement only applies to paid professional firefighters and does not apply to volunteer firefighters or affect their important role … The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations is not altered by this Agreement.
That the agreement only applies to paid professional firefighters is a limitation that the Fair Work Commission cannot avoid. Enterprise Agreements are made between employees and employers, the Commission would not have jurisdiction to require an enterprise agreement to apply to volunteers but by consistently distinguishing between paid and volunteers firefighters (eg in cl 83.5, discussed above) it will, if adopted, create a two tier CFA in a way that is inconsistent with s 6F of the Act.
Second it is hard, if not impossible, to see how the role of volunteers will not be altered by the Agreement. Whilst the CFA and volunteer firefighters are clearly pushing the issue and making their position clear and public, the UFU is relatively quiet. UFU officials have been quoted in the press (eg ‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 June 2016) but there is very little on the UFU website to refute the arguments that the proposed agreement does represent a radical change of the CFA and the role of volunteers.
In the absence of some detailed explanation from the UFU as to why this is not the case and how the agreement won’t alter the ‘role of volunteers in fighting bushfires and maintaining community safety’ then I have to agree with Rush QC’s opinion that:
The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act.
It provides unprecedented powers within the CFA to the United Firefighters Union.
The EBA undermines the role and independence of volunteers.
Those sacked or resigning had no choice but to oppose the EBA.