The Prime Minister, Malcolm Turnbull, and the Minister for Employment, Senator Michaelia Cash, have today publicly released the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016.   According to press release documents, the bill, if passed into law, will ‘nullify enterprise agreements that watered down the capacity of state emergency service organisations to manage their volunteers’ (‘Turnbull Government to overhaul employment laws for emergency services volunteers’, news.com.au, 22 August 2016) and will ‘will ensure emergency services volunteers are protected from union influence’ (‘Malcolm Turnbull introduces new laws to ‘protect’ CFA volunteers from fire fighters’ union’, ABC News (Online), 22 August 2016).

But what does the Bill actually say?  The text of the Bill can be found on the website of the Department of Employment.

The Bill will introduce a new concept that of an ‘objectionable emergency management term’.  A term of an enterprise agreement will be an ‘objectionable emergency management term’ if the employer is

… a designated emergency management body and the term has, or is likely to have, the effect of:

(a)          restricting or limiting the body’s ability to do any of the following:

(i)            engage or deploy its volunteers;

(ii)           provide support or equipment to those volunteers;

(iii)          manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers;

(iv)         otherwise manage its operations in relation to those volunteers; or

(b)          requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv); or

(c)           restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well being and safety of the community; or

(d)          requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

Some other definitions.  First:

A body is a designated emergency management body if:

(a)         either:

(i)            the body is, or is a part of, a fire fighting body or a State Emergency Service of a State or Territory (however described); or

(ii)           the body is a recognised emergency management body that is prescribed by the regulations for the purposes of this subparagraph; and

(b)          the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

Second:

A person is a volunteer of a designated emergency management body if:

(a)          the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

(b)          the person is a member of, or has a member‑like association with, the body.

Discussion

Definitions

The first point that I note is that a ‘designated emergency management body’ must be ‘established for a public purpose by or under a law of the Commonwealth, a State or a Territory’ so non-statutory organisations such as the Volunteer Rescue Association, Surf Life Saving Australia, St John Ambulance Australia, Australian Red Cross, Salvation Army Emergency Services and the like will not, where they have both employees and volunteers, be affected by these changes.

The definition of ‘volunteer’ is non-controversial.  The requirement that the volunteer must be ‘a member of, or has a member like association with, the body’ means that the use of casual volunteers in an emergency will not somehow invalidate an enterprise agreement.

Ensure emergency services volunteers are protected from union influence

The Bill says nothing about unions!  It talks about terms of an enterprise agreement but not about a union. The terms that might be included may be something that the paid staff, or even the paid staff and volunteers, are happy with but they are not permitted.  The terms may be negotiated without the involvement of a union but they are not permitted.  This Bill is not about protecting an agency from undue influence from a union such as the United Firefighters Union, rather it is protecting the agency from the influence of the paid staff, whether unionised or not.

That the CFA is ‘first and foremost’ a volunteer organisation may be enshrined in legislation (Country Fire Authority Act 1958 (Vic) s 6F) but that is not true for other agencies that are likely to be ‘designated emergency management bodies’.  For example the Ambulance Service of NSW uses volunteers as ‘honorary ambulance officers’ (Health Services Act 1997 (NSW) s 67H) but those members are a very small part of the total ambulance workforce.  These provisions will still have impact on the sort of clauses that can go into an enterprise agreement involving NSW Ambulance as an employer.

Application to the CFA EB

The introduction of this Bill represents the Prime Minister fulfilling an election commitment.  The issue arose as there were (and remain) controversial negotiations between the CFA and its paid staff represented by the UFU.  I have previously commented on the draft EB – see:

What difference will this Bill make to the proposed agreement?  First whether any of the terms of the EB have the effect of restricting or limiting the CFA’s ability to ‘engage or deploy its volunteers; provide support or equipment to those volunteers; manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers; [or] otherwise manage its operations in relation to those volunteers’ would be a matter of debate.  Some would say it does; others would say it doesn’t.  By enshrining these provisions into law it will allow a legal tribunal, whether Fair Work Australia, the Federal Court of the Supreme Court of Victoria to be the final arbiter of such matters.

The prohibition on any term that has the effect of ‘requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv)’ is intended to invalidate clause 83.4 (formerly 90.4). That clause says the CFA

The CFA and UFU must agree on all aspects of the:

83.4.1 articles of clothing;

83.4.2 equipment, including personal protective equipment;

83.4.3 technology;

83.4.4 station wear; and

83.4.5 appliances;

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.

At least to the extent that volunteers and paid staff are issued with and use the same equipment. It is unlikely that the CFA will have appliances for use by volunteers and other appliances for use by paid staff.  Requiring UFU agreement on ‘appliances’ would impact upon the agencies ability to provide equipment to its volunteers and would therefore be an ‘objectionable emergency management term’.

Clause 43.2.7 (formerly 83.5) says that the CFA will meet its duty of care to its employees by ‘ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations’.   It would suggest that clause is intended to be invalidated by these amendments but I’m not sure they would be.  That clause doesn’t say the CFA can’t also send volunteers. Further:

To avoid doubt, in accordance with current procedure, after undertaking a risk assessment/sizeup upon arrival at the fire/incident, the first arriving Incident Controller on scene can determine the number of appliances and crews required for the fire/incident and can notify oncoming appliances and crews that they are not required to attend.

It follows that if there are sufficient firefighters on scene, both paid and volunteer, the IC can ‘call off’ the other professional firefighters that are on the way (ie dispatched, but not yet on scene).

Clause 16.3 says

The CFA shall have a career firefighter in each catchment (or broader area where agreed), reporting to the Commander of the catchment, to assist the Commander in providing volunteer support. The parties agree to consult through the CFA UFU Consultative Committee in relation to the role of such positions.

That may be objectionable as it is not clear why a ‘career firefighter’ is involved in ‘volunteer support’ (ie support to volunteers) or support to career staff by volunteers.  Either way, that would appear to impact upon the CFA’s ability to ‘manage its relationship with’ its volunteers.

When I originally commented on the EB, clause 36.4 said “All employees covered by this agreement shall only report to operational employees” (level 3 multiagency incidents or volunteer CFA incident controller excepted).  The current version of the agreement no longer has that clause.  Clause 36.4 is now about ‘conduct resolution’ and ‘unfair dismissal’ and the reference to reporting only to ‘operational employees’ does not appear in some new position in the EB.

State law trumps Commonwealth law

An interesting amendment is the clause that says an EB is invalid if it has the effect of

… requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

The normal rule is that if there is an inconsistency between a valid Commonwealth law and valid state law then the Commonwealth law prevails (Australian Constitution, s 109).  This clause reverses that by saying if there is a state law (and one can infer this is aimed at ss 6F-6I of the Country Fire Authority Act) then that prevails over an enterprise agreement made pursuant to a federal law (ie the Fair Work Act 2009 (Cth).

Given that the legislation creating every emergency service ‘imposes on the body a power, function or duty that affects or could affect its volunteers’ that is an extremely broad clause.

Volunteer representation

The Bill, if it becomes law, will allow volunteer organisations like the VFBV to make submissions to the Fair Work Commission on matters under Part 2-4 (Enterprise Bargains) and part 2-5 (Workplace Determinations).  In short volunteers will be entitled to be heard if they think a proposed enterprise bargain ‘affects, or could affect, the volunteers of a designated emergency management body’.

Is it a good thing?

I make no comment on whether or not the changes proposed by the Bill will advance or hinder the work of the CFA.   It does appear it will fundamentally change the relationship between emergency services agencies and their volunteers regardless of whether those volunteers are the only emergency responders (as with say NSW RFS), are meant to work in a fully integrated way with paid staff (as in the CFA) or are a very small component of the workforce (as with NSW Ambulance).

Volunteers who work with, but are not part of employed organisations, such as volunteers with Bush fire Brigades in Western Australia (Bush Fires Act 1954 (WA) s 41) and Queensland (Fire and Emergency Services Act 1990 (Qld) ss 8A and 79; see also Status of Queensland Rural Fire Brigades (September 10, 2014)) may find the proposed changes have little effect.

The biggest issue I foresee will be for agencies that have a few volunteers.  These organisations may find the relationships with employees more complicated or may find that they can use the presence of some volunteers within their ranks as a way to weaken the bargaining power of the employees even if employees form the bulk of the workforce.

Disclaimer

As always, the opinions expressed here are my own.  I have not checked them with anyone or tried to tailor them to suit one view over another.  In the name of transparency I should disclose that “I’m a union man”.  I’ve always been a member of the relevant trade union that covered my workplace and I am a current financial member of the NTEU (National Tertiary Education Union).  I know of no formal link between the NTEU and the UFU but I suppose they are both members of the ACTU and probably both provide financial support to the Labor Party.    On the other hand, I am also a member of the NSW SESVA.   Again I don’t know of any links between the VA and the VFBV.