I’m writing this to make my conclusions clear. As I tell my students, if readers don’t understand your position it’s the fault of the writer, not the reader. In the first version of this post I set out my arguments but after much discussion with others (see the comments after my first post – The CFA Enterprise Bargaining Dispute (June 24, 2016)) I want to try and set out my conclusion (not so much the arguments) with greater clarity. My aim is not to have my position misrepresented by either the VFBV, the UFU, their members, the media or the government. My position is:
- I make no judgment on whether the proposed Enterprise Agreement (EA) is in the best interests of the Country Fire Authority (CFA), the United Firefighters Union (UFU), the Volunteer Fire Brigades Victoria (VFBV), paid firefighters, volunteer firefighters or the community. That is not my task. Whether my conclusions mean that the EA should not be signed is a question I don’t address but I do note that I do not think that a conclusion that the proposed EA is contrary to s 6F of the CFA Act means that it cannot be signed. It may be that all things considered, the EA is in the best interests of the CFA, the UFU, the VFBV, paid and volunteer firefighters and the community, or just some of those parties. I make no comment on any of that. That is not my task. My role, on this blog, is to look at the law and consider it’s terms (I go back to the point on my first post of being a ‘legal positivist’). Accordingly my conclusion is based on ‘an abstract legal perspective’. Not only am I ‘missing out vital operational considerations’ it is not my role to address those considerations.
- My conclusion is that the proposed EA (as it appears on the CFA website) is inconsistent with the CFA Act because s 6F says:
“The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.”
To give effect to that recognition there is the Volunteer Charter (s 6G), an obligation upon the CFA to give effect to that charter (s 6H) and an obligation upon the CFA “to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services” (6 H).
- It is my view that having arrangements that distinguishes between firefighters, in operational issues, is inconsistent with s 6F and the intention that is implied by ss 6F-6I. So clauses that say the CFA will respond ‘seven professional firefighters’ rather than ‘seven firefighters’ or that ‘professional firefighters’ will not report to volunteers (level 3 multiagency events and CFA volunteer Incident Controllers excepted) is not consistent with s 6F nor s 6H ie they do not reflect “a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner” and they do not “strengthen the capacity of volunteer officers and members to provide the Authority’s services”. The clauses may, or may not, be perfectly sensible for the protection of the health and safety of the CFA’s employees or for the better protection of the community. Whether they are sensible or not, does not change my opinion that they are inconsistent with the Act.
- There is no doubt much in the way in which the CFA operates that is inconsistent with s 6F and it is perhaps the case that s 6F is a section without meaning. It may be impossible to have a “fully integrated” service if the volunteers are rated “first and foremost”. But just because the objectives set out in ss 6F-6I have not been fully realised, and perhaps cannot be realised, doesn’t alter my conclusion that this proposed EA is contrary to those provisions in the Act. Some might think that being contrary to those provisions is trivial or irrelevant because those provisions can’t be, or aren’t given effect elsewhere by the CFA. That may be true and may justify the CFA agreeing to the EA. Others, no doubt, believe those provisions are central to the character of the CFA and the service the CFA provides to the Victorian community.
- My objections would disappear if for example cl 83.5 referred to ‘firefighters’ rather than ‘professional firefighters’. The UFU and paid firefighters may have genuine and serious objections to that change on say OHS grounds, but that is not what I’m addressing. I’m addressing conflict with the CFA Act. If the section said ‘the CFA shall, within 90 seconds of the alarm, dispatch seven firefighters’ or ‘the CFA shall dispatch seven firefighters who hold listed minimum qualifications’ that might remove my objection. (I say ‘might’ because if you impose conditions that volunteers can’t meet, that could be implementing a policy that fails to “strengthen” or even hinders “the capacity of volunteer officers and members to provide the Authority’s services”. On the other hand if there are volunteers that can meet the necessary criteria, a clause like that would strengthen their “capacity … to provide the Authority’s services” by allowing them to work with their salaried colleagues). In any event I make no comment on whether those requirements would be reasonable or should be in the EA, nor whether a hypothetical provision would be consistent or inconsistent with the Act.
- With respect to cl 36.4 I don’t see how that can be made consistent with the current Act.
- One way to resolve the inconsistencies would be to repeal ss 6F-6I. I do think that legislators should ‘say what they mean and mean what they say’ so if the CFA isn’t, or can’t be, that which is described in s 6F then the section shouldn’t be there; but whilst it (and ss 6G-6I) are there, the CFA has to try to give meaning and effect to those sections.
- As for cl 90.4 I see that gives ‘extraordinary’ powers to the UFU as it requires the UFU to ‘agree’ with the CFA on OHS issues, not merely be consulted, even though there are detailed consultation provisions in both the OHS Act and the proposed EA. An obligation to ‘agree’ gives the UFU authority at the workplace that is above and beyond that which employees and their associations have at other workplaces. Whether it is a good idea or not, and whether the hazardous nature of the work warrants that, is something I make no comment on. I’m merely drawing out the difference between the positions of the UFU as it would be under the EA compared to the OHS Act.
- I don’t think all of the criticism of the EA are made out. For example in their other areas of concern the CFA refers to:
“Clause 95 – Infrastructure – prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station. It is divisive in its terms and can sensibly be managed by each fire station within existing guidelines without this prescription.”
I can’t see that cl 95 (at least on the version of the EA on the CFA website) ‘prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station’.
- I can see that the EA restricts some of the powers of the Chief Officer (see Josh Gordon and Richard Willingham ‘CFA crisis: Victoria’s chief fire officer under pressure over union deal’ The Age (Online) (June 28, 2016)). The Chief Officer’s powers are set out in the Act. Section 29 says, inter alia, that the Chief Officer ‘shall at all times have the charge and control of all apparatus and other property of the Authority and shall cause the same to be kept in a fit state at all times for efficient service’. It doesn’t say that the Chief Officer shall determine what appliances the CFA will purchase or what uniforms it will buy. The obligation to agree with the UFU on items of equipment “to be used or worn by employees” does not mean ‘used or worn today’ so that it doesn’t imply that the UFU have to agree to ‘this appliance being sent to this fire’. It is about the decisions made by the CFA (not the Chief Officer) on what equipment to buy. I don’t therefore see that cl 90.4 affects the Chief Officer’s powers.
- Section 28 however says:
“The Chief Officer may, by written instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, either generally or as otherwise provided by the instrument, any power or authority conferred on the Chief Officer under this Act or the regulations or any other Act or regulations.”
One of the powers of the chief officer is to “have the control and direction of— (i) any brigade or brigades present at the scene of the fire” (s 30(1)(b)). Where cl 36.4 says “All employees covered by this agreement shall only report to operational employees” (level 3 multiagency incidents or volunteer CFA incident controller excepted) that may limit the Chief Officer’s power of delegation. It may mean that a volunteer cannot exercise the chief officer’s powers that have been delegated to that volunteer if he or she is not the incident controller (eg if they are appointed sector commander at a level 2 event; or are directed to lead a team made up of both volunteer and paid firefighters).
- In conclusion, I still think:
- The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act – because provisions are inconsistent with the idea of the CFA as “first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner”. It may be that the CFA is not really “first and foremost a volunteer-based organisation” nor does it operate as a service where “volunteer officers and members are supported by employees in a fully integrated manner” and it may be achieving that will never be possible. That doesn’t alter my conclusion.
- It provides unprecedented powers within the CFA to the United Firefighters Union – in that it gives them greater powers than other unions under the Occupational Health and Safety Act.
- The EA undermines the role and independence of volunteers – it undermines the role of volunteers by, in some circumstances, limiting the roles that volunteers can play, or the positions that they can take when working with their paid colleagues. It undermines the independence of volunteers in circumstances where matters which require UFU agreement also apply to volunteers (eg uniform choices). In that case the volunteer’s voice may not be fully heard as the UFU agreement is required regardless of the position adopted by volunteers.
- Those sacked or resigning had no choice but to oppose the EA – if they believe it is inconsistent with the Act they have to oppose the EA as they have to comply with the legislation. If faced with what they see as irreconcilable, conflicting responsibilities to the Legislature and the Government of the day, then the appropriate action is to resign or to stand one’s ground and get sacked.