Bills Digest no. 19,
2016–17
PDF version [606KB]
Jonathan Mills
Law and Bills Digest Section
Jaan Murphy
Law and Bills Digest Section
10
October 2016
Contents
Purpose of the Bill
Structure of the Bill
Background
The Victorian CFA situation
The present Bill
Committee consideration
Senate Education and Employment
Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Objectionable emergency management
terms
Continued control by States over
their volunteers
Constitutional issues
Right to make submissions
Is the Bill retrospective?
Application of the Bill’s provisions
to existing agreements and determinations
Concluding comments
Date introduced: 31
August 2016
House: House of
Representatives
Portfolio: Employment
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
Purpose of
the Bill
The purpose of the Fair Work Amendment (Respect for
Emergency Services Volunteers) Bill 2016 (the Bill) is to amend the Fair
Work Act 2009[1]
(the FWA) to make unlawful any agreement term (under the FWA)
that has the effect of restricting a state emergency service or fire-fighting
body in its use of, or relations with, its volunteers. The Fair Work Commission
(FWC) will not be able to approve enterprise agreements (EAs) or make workplace
determinations include such terms, and any such terms in existing EAs and
determinations will no longer be enforceable.
The Bill also provides an entitlement for volunteer bodies
to make submissions in relation to matters before the FWC that may affect them,
if the matter relates to an enterprise agreement or workplace determination.
Structure
of the Bill
This Bill comprises a single Schedule of amendments to the
FWA.
Items 1 to 4 add an ‘objectionable emergency
management term’ to the list of unlawful terms in existing section 194, and
provide definitions for this term and the bodies to which it would apply.
Items 6 to 8 provide volunteer organisations with
the ability to make a submission in relation to a matter before the FWC where
the matter affects their volunteers.
Item 9 inserts application provisions to ensure
that the amendments will apply after commencement to enterprise agreements,
workplace determinations and matters before the FWC.
Background
The
Victorian CFA situation
An enterprise agreement between the Country Fire Authority
(CFA) and the United Firefighters’ Union of Australia (‘UFU’)[2]
was approved by the FWC in 2010, under the FWA.[3]
A clause of that agreement required the CFA to employ 342
career firefighters over a six year period and to conduct a minimum of three
recruitment courses per year, each including training for at least 30 recruits.[4]
The CFA did not comply with the recruitment clause, or
with another recruitment arrangement agreed between the parties following the
UFU’s notification of an industrial dispute to the Commission about the CFA’s
non-compliance.[5]
The UFU commenced a proceeding in the Federal Court in
June 2012 to have the recruitment and training carried out and to seek
penalties against the CFA. In its judgement in January 2014 the Federal Court
found that the relevant clauses in the agreement were invalid.[6]
The court considered that the CFA was a constitutional corporation—thereby
triggering the Commonwealth’s corporations power under section 51(xx) of the Constitution—
and so was validly covered by the Commonwealth’s workplace relations
legislation, but found that the disputed clauses were invalid as they breached the
implied constitutional limitation on Commonwealth laws interfering with state
governments’ capacity to function as governments.[7]
On appeal, the Full Federal Court in 2015 found in favour
of the UFU, agreeing that the CFA was a constitutional corporation, but finding
that the implied constitutional limitation had not been breached as the clauses
in question were part of a voluntary agreement and so did not involve the
imposition of any impairment on the state government by a Commonwealth
law.[8]
The 2010 agreement was due to expire in September 2013,
but is still in operation. Negotiations for a new agreement also commenced in
2013.
In mid-2016 the Victorian Government replaced the Minister
responsible and reconstituted the Board of the CFA.[9]
A new enterprise bargaining agreement[10]
has since been approved by the board but the volunteers’ representative body,
Volunteer Fire Brigades Victoria (VFBV) took the CFA to the Victorian Supreme
Court[11]
to challenge the new agreement on the grounds that it potentially interferes
with volunteers as:
- the
CFA failed to fulfil their statutory duties under the Country
Fire Authority Act 1958[12] (Vic) to consult with VFBV, and
- the
terms of the agreement are inconsistent with the statutory obligations of the
CFA (including fulfilling the consultation requirement under the Act and
constitute an unlawful fettering of the CFA’s powers).
In part this relates to statutory obligations to recognise
consultation rights under the CFA Volunteer Charter.[13]
Following an injunction, the new agreement will not be
voted upon pending the outcome of the court action. The matter is ongoing at
the time of writing.
The Victorian Government has stated:
The CFA Board has given an undertaking to the Supreme Court
of Victoria not to put the proposed agreement to a ballot of its career
firefighters pending the outcome of Victorian Supreme Court litigation
involving the Volunteer Fire Brigades Victoria and the CFA.[14]
Summary of the dispute
From the above, it can be seen that in very simple terms,
the CFA dispute is about terms in the proposed enterprise agreement (EA) that
would:
- require that the CFA employ a specified number of career
firefighters on each shift (many of which are members of the United
Firefighters Union (UFU)) and
- use only career firefighters to perform certain work.[15]
In effect, on one hand it is argued that the dispute is
about whether the deal would give the UFU too much power over the CFA’s
operational decision-making processes (and if it would contravene its volunteer
charter) whilst on the other hand the UFU argues that the dispute is about necessary
measures to protect the safety of both workers and volunteers.[16]
The present
Bill
During the 2016 Federal election campaign the Victorian
dispute became an election issue due to the application of the FWA and
the involvement of the FWC. Prime Minister Malcolm Turnbull was reported as
saying that, if returned, the Government would amend the FWA to ‘expand
the list of “objectionable terms” that cannot be included in enterprise
agreements to include anything that would restrict the ability of volunteer
emergency services authorities from carrying out their duties’.[17]
In his second reading speech for this Bill, the Prime
Minister referenced the Victorian dispute as the reason for the introduction of
this Bill, and stated:
... (t)his bill will ensure that enterprise agreements cannot
be used in a way that permits unions to exert power over the valuable
contributions of volunteers.[18]
Committee
consideration
Senate
Education and Employment Legislation Committee
The provisions of the Bill have been referred to the Senate
Education and Employment Legislation Committee for inquiry with a reporting
date of 10 October 2016. Details of the inquiry are at the inquiry
webpage.[19]
See under ‘Position of major interest groups’ for a
discussion of some of the submissions to this inquiry.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing the Committee has not commented on
the Bill.
Policy
position of non-government parties/independents
Brendan O’Connor, the Shadow Minister for Employment and
Workplace Relations, has stated that the ALP has ‘reservations’ over the Bill
and that it should not be dealt with until after it has been considered by the
Senate Committee and the Victorian Supreme Court case has been resolved.[20]
The Greens have been reported as being opposed to this
Bill, while Senators Hinch and Day have reportedly declared their support for
the proposal.[21]
The three Nick Xenophon Team (NXT) Senators and Senator Leyonhjelm have ‘expressed
in-principle support for the position of volunteers.’[22]
One Nation Senators have held discussions with union and
volunteer representatives and had not announced their final position at the
time of writing.[23]
Position of
major interest groups
Volunteer Fire Brigades Victoria (VFBV) issued a statement
noting that the ‘VFBV was able to provide valuable input to the development of
the legislation, and we are very pleased that it has shaped up in a way that we
believe meets our concerns and deals with the practical issues affecting
volunteers.’[24]
The UFU issued a bulletin stating that ‘the legislation as
proposed will result in ongoing protracted litigation which is designed to make
the (CFA Enterprise) agreement unworkable.’[25]
The UFU also describes the amendments as unjustified, and as ‘a direct attack
on Professional/Career firefighters’ working conditions’ that ‘will also
eventually have an effect on other industries.’[26]
At the time of writing over 300 submissions had been
published on the webpage of the Senate Education and Employment Legislation
Committee inquiry into the Bill, indicating a high degree of stakeholder and
community interest. Broadly speaking, rural fire services and volunteers are in
favour of the Bill, while the Victorian Government, unions, some integrated CFA
brigades[27]
and some other groups are opposed to it.[28]
In its submission the Victorian Government stated its
opposition to the Bill, noting that the broad definitions in the proposed
unlawful terms could result in practical ambiguities when applied to particular
terms, and that the effect on existing agreements was in part retrospective.[29]
The Victorian Government also noted that the amendments appeared to be
inappropriately targeting one agreement and one state, as the amendments:
... may not apply to fire-fighting bodies or emergency services
in other States as, to the extent these bodies are not constitutional (“or
trading”) corporations, these bodies are not covered by the Fair Work laws.
This is because, unlike Victoria, other States have not referred their
industrial relations powers over their public sectors to the Commonwealth.
Consequently, Victoria is the only State in which public sector bodies that are
not constitutional (“trading”) corporations are covered by the Fair Work laws.[30]
Victoria further submitted that ‘this Bill amounts to an
unnecessary and undue interference by the Commonwealth in a State matter.’[31]
The Police Federation of Australia was concerned that the
provisions of the Bill that would permit a body to be prescribed by regulation
as a recognised emergency management body[32]
could permit the coverage of the new unlawful terms to be extended to police
agencies in future.[33]
The NSW Rural Fire Service Association (RFSA) submitted
that they and the Council of Australian Volunteer Fire Associations (CAVFA) ‘both
strongly support the (Bill)’. Noting, ‘(t)hese amendments are vital in ensuring
that the unique volunteer culture in our emergency services, and that the
credibility and respect that has developed over decades, is not detrimentally
affected.’[34]
The Bendigo Fire Brigade, an integrated volunteer and
career firefighter brigade of the CFA, submitted that they supported the
currently proposed agreement, opposed the proposal for volunteers to be
encouraged to intervene in ‘employment matters’, and:
... the VFBV has made commentary that they oppose the clause in
the proposed UFU/CFA Agreement relating to dispatching seven firefighters to
the fire ground. Volunteers at Bendigo Fire Brigade do not agree with the VFBV
in relation to this issue and see the importance of this provision for both
firefighters safety and better service delivery and protecting the community.[35]
The Bendigo Fire Brigade submission goes on to state:
The proposed Legislation before the Committee is designed to
deal with alleged concerns arising from the proposed CFA UFU Enterprise
Agreement 2016. These concerns however are based on misleading and incorrect
information regarding the proposed EBA.[36]
Financial
implications
There are no financial implications linked to the
amendments proposed in this Bill.[37]
Statement of compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[38]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee on
Human Rights had not commented on the Bill.[39]
Key issues
and provisions
Objectionable
emergency management terms
The proposed amendments in the Bill would add an
‘objectionable emergency management term’ to the list of unlawful terms in
section 194, and provide definitions for this term and the bodies to which it
would apply.
Currently the FWA creates two forms of what may be
colloquially referred to as ‘objectionable’ terms:
- unlawful
terms and
- non-permitted
terms.
Subsection 186(4) of the FWA requires the FWC not
to approve an EA that contains an unlawful term. Section 194 provides a list of
terms that are unlawful, including terms that are ‘discriminatory’ or
‘objectionable’.[40]
Further, even if an EA were approved with an unlawful term, the term will not
be enforceable and employees would not be able to take protected industrial
action in support of such terms.[41]
Item 3 inserts proposed paragraph 194(baa)
to add an ‘objectionable emergency management term’ to the list of unlawful
terms.
Proposed subsection 195A(1) of the draft Bill introduces
a definition of ‘objectionable emergency management term’ to make agreement
terms unlawful if they had the effect of restricting a designated emergency
management body’s ability to engage, deploy, support or equip volunteers, or
manage operations or relationships in relation to the volunteers.
Proposed subsection 195A(4) provides a definition
of ‘designated emergency management body’ as a body, established under a Commonwealth,
state or territory law, that ‘is, or is a part of, a fire-fighting body or a
State Emergency Service of a State or Territory’,[42]
or a recognised emergency management body that is prescribed by regulations.[43]
Proposed subsection 195A(5) allows bodies to be
excluded from the definition of ‘designated emergency management body’ by
regulation.
Continued control
by States over their volunteers
While the proposed amendments would have the effect of
preventing the approval or enforcement of an EA term that restricted a body’s
ability to deal with its volunteers in the manner described, it is worth noting
that nothing in this Bill would interfere with any state’s ability to deal with
its volunteer workforces in any other way. Other means by which states may exercise
control over volunteers could include direct legislative control, issuing
directions or through directed funding.
Constitutional
issues
In his second reading speech, the Prime Minister stated
that the Government had legal advice confirming the constitutional validity of
the amendments.[44]
At present, the Commonwealth is accepted to have the power
to legislate private sector industrial relations (IR) laws that apply to
constitutional corporations within a state as well as to all disputes extending
beyond a single state, or where powers have been referred by a state.
The extent of Commonwealth power to legislate employment
law for the public sector within states is less settled, both due to the
implied constitutional limitation on the Commonwealth’s power to interfere with
a state’s ability to function as a government, and the absence of a clear head
of power. Commonwealth power may depend upon whether a given agency is
determined by the court to be a constitutional corporation or it may rely on the
referral of powers from the state in question.
In UFU v CFA 2015 the Full Federal Court reaffirmed
the earlier finding of the Court that the CFA is a constitutional corporation, providing
a head of power for the application of the FWA to that body. [45]
Victorian legislation refers certain public sector IR
responsibilities and powers to the Commonwealth.[46]
However, following the decision on the corporate nature of the CFA it has not
been necessary to consider the referral of powers and any relevant exceptions
to it in the current situation.
As noted above, the application of Commonwealth IR laws to
state government issues may be limited by the implied constitutional limitation
on Commonwealth interference with state governments. This limitation is
sometimes referred to as the Melbourne Corporation principle following
the case in which it was first laid out.[47]
The application of this principle has been explored
further in subsequent cases:
- in
AEU, the High Court reaffirmed that there is an implied constitutional
limitation on the Commonwealth’s power to interfere with a state’s ability to
function as a government, and that this extends to awards prescribing the
number, identity and terms of appointment of state government employees, but
does not limit the making of an award of minimum wages or working conditions[48]
- in
UFU v CFA 2015 the Full Federal Court introduced an exception to the
implied constitutional limitation from the AEU case such that it does
not limit terms in voluntary agreements, as they are not considered to involve
any Commonwealth imposition on the states.[49]
Further, in UFU v CFA 2015[50]
the Federal Court summarised the history of judicial consideration of the Melbourne
Corporation principle, and cited a recent High Court framing of the
principle as follows at [206]:
... it is relevant to note the following similar formulation of
the implied limitation by Hayne, Bell and Keane JJ in 2013 in Fortescue at
[130]:
Hence, as the decisions in Austin
and Clarke each demonstrate, the Melbourne Corporation principle
requires consideration of whether impugned legislation is directed at States,
imposing some special disability or burden on the exercise of powers and
fulfilment of functions of the States which curtails their capacity to function
as governments.
Together, these authorities suggest that a determination
of whether the proposed amendments would breach the implied limitation, would
likely involve consideration of whether the practical effects of the amendments
in a specific factual situation created a significant impairment on a
government, and whether they related to staffing levels or simply working
conditions, as defined in AEU.
Academics have questioned the constitutional validity of
the Bill’s proposed approach.[51]
Regarding the relevance of the Melbourne Corporation principle in
particular, Professor Andrew Stewart commented:
The potential application of these constitutional limitations
to the proposals in the Bill should be evident. It could be argued that by
preventing a State government agency such as the CFA from making its own
decisions as to how to deploy a mix of professional firefighters and
volunteers, or who it consults with before making those decisions, or (more
broadly) what role to accord to volunteer firefighters, the Commonwealth would
be unduly interfering with the agency’s power to determine the composition of
its workforce.
I do not go so far as to suggest that the Bill is necessarily
unconstitutional. The principles concerned are necessarily imprecise and flexible
in their application, being based on implications in the Constitution that,
over the years, the High Court has chosen to formulate and apply in different
ways. Australian Education Union was decided over 20 years ago by a
differently constituted court, and did not deal with the role of volunteers. It
is entirely possible that a challenge to the constitutionality of the Bill’s
provisions would fail. But it is just as possible that it would succeed.[52]
(emphasis added).
The issues raised in the submission by the Victorian
Government to the Senate Committee, as discussed in the Stakeholder section
above, suggest that they have also considered the Melbourne Corporation
principle.[53]
Right to
make submissions
Proposed sections 254A and 281AA would provide volunteer
representative organisations with the ability to make a submission in relation
to a matter before the FWC where the matter affects, or could affect, the
volunteers of a designated emergency management body. The proposed sections
provide this ability in relation to enterprise agreements and workplace
determinations respectively.
Currently standing to make submissions to the FWC for
consideration related to Part 2–4 (which deals with EAs) and Part 2–5 (which
deals with determinations) of the FWA is not automatic. Further, generally
where the FWC grants permission to parties to provide submissions, it is
generally, as a matter of practice, restricted to employers who would be
covered by the relevant EA or determination or properly selected bargaining
representatives (for example, a relevant trade union engaged in bargaining for
the EA). In short, despite section 590 of the FWA, which enables the FWC
to inform itself about any matters by inviting oral or written submissions from
any parties or persons it selects, currently no parties have an automatic right
to make submissions to the FWC in regards to any matters dealt with by Parts 2–4
and 2–5 of the FWA. Regarding these provisions, Professor Andrew Stewart
commented:
What is extraordinary about this proposal is that it would
confer on the relevant bodies a right that is not guaranteed to any other
party, with the sole exception of the Minister for Employment (and even that
right is limited to matters involving public sector employment). Under the FW
Act as it stands it is entirely a matter for the FWC to determine, in
accordance with its Rules, whether it hears or accepts submissions from a
particular party in relation to the approval of an enterprise agreement. In
practice, it will allow the likes of unions, employer associations and
individual employees to intervene, if they have a genuine interest in the
proceedings. But nobody (with the partial exception of the Minister) is automatically
entitled to be heard.
Hence if included in the FW Act, these proposed provisions
would give volunteer bodies superior rights to employees, unions, governments –
and, it may be noted, volunteers themselves.[54]
(Footnotes omitted, emphasis added).
As a result, the Bill would give an automatic right to
volunteer representative organisations to make submissions to the FWC regarding
a wide range of matters related to EAs and determinations including:
- when
applications are made to approve, vary or terminate an EA[55]
and
- applications
for bargaining orders and serious breach declarations, majority support
determination and scope orders and for the FWC for it to deal with a dispute,[56]
in circumstances where no other entities currently have
such automatic standing.
Is the Bill
retrospective?
The Bill is not legally retrospective, as noted in the
Explanatory Memorandum,[57]
but it does alter the future operation of previously agreed agreements.
Application
of the Bill’s provisions to existing agreements and determinations
Item 9 of the Bill inserts application provisions
into Schedule 1 of the FWA in the form of proposed Part 3 (and in
particular proposed clause 14) to provide that the amendments will apply
after commencement in relation to enterprise agreements approved, and workplace
determinations made, before or after commencement, as well as to matters that
are before the FWC after commencement whether they began before or after
commencement.
Nothing in proposed clause 14 would alter the legal
status of the signing of a pre-commencement agreement or of anything that had
previously occurred under a newly-objectionable term of such an agreement. In
particular:
- nothing
that had previously occurred under an agreement containing a
newly-objectionable term of such an agreement is rendered invalid or made
unlawful and
- the
approval of agreements with the newly-objectionable terms (proposed section
195A and existing subsection 186(4) of the FWA) and enforcement of
such terms or conduct purported to occur under such a term, is only prohibited
(and unenforceable) after the commencement date.
In addition, proposed subclause 14(3) specifically
ensures that agreements approved before commencement will continue to have
legal force despite including newly-objectionable terms. In short, proposed subclause
14(3) ensures:
- enterprise
agreements with objectionable terms are not rendered invalid and
- other
non-objectionable terms in the enterprise agreement continue to operate to the
extent that they are in accord with the amended Act.
As such, the provision is not retrospective but, in so far
as the Bill seeks to (in effect) amend previous agreements by providing that
any newly-objectionable terms are no longer enforceable, it could alter how those
agreements will operate in the future.
Concluding comments
The broad definition provided by this Bill for
objectionable emergency management terms, relating as it does to the
interaction of such terms with a body’s dealings with its volunteers, means
that it will be difficult to predict whether potential terms would be
considered to be objectionable or not. It is likely that in many cases such a
determination would require the consideration of the practical effects of the
terms, rather than textual analysis of the terms themselves.
The ability for further emergency management bodies to be
prescribed by regulation also adds uncertainty to the scope of application of
the amendments.
The entitlement for volunteer bodies to make submissions
to the FWC is unusual in that it would be a right that is not provided to any
other participants in agreements or disputes. Further, that right extends to
all stages of the processes related to making an EA or determination, including
determining the scope of a proposed agreement, obtaining good faith bargaining
orders, approving an EA, varying an EA or terminating it in circumstances where
(for example) even the parties to a negotiation about a proposed EA would not
automatically have standing to make submission on the matters being determined
by the FWC.
The operation of the Bill is not retrospective, but it
will affect the operation of applicable existing agreements or ongoing matters
before the FWC.
Finally, as noted previously whilst the amendments will
fetter the ability of a state to exercise its managerial prerogative over
emergency service volunteers via an EA or determination made under the FWA,
it will not prevent any state exercising its managerial prerogative via other
mechanisms. As such, states will continue to be able to deal with the issues
encompassed by the CFA dispute via other mechanisms.
[1]. Fair Work Act 2009 (Cth)
(FWA).
[2]. United
Firefighters Union of Australia (UFU), Country
Fire Authority/United Firefighters’ Union of Australia Operational Staff
Enterprise Agreement 2010, UFU website.
[3]. United
Firefighters Union of Australia v Country Fire Authority (2014) 308 ALR
438, [2014]
FCA 17; (referred to as UFU v CFA 2014), [1].
[4]. Ibid.,
[2].
[5]. Ibid.,
[3].
[6]. Ibid.,
[7].
[7]. The
so-called Melbourne Corporation principle, further developed in Re
Australian Education Union & Australian Nursing Federation; Ex Parte Victoria
(1995) 184 CLR 188, [1995] HCA 71
(referred to as AEU); and later cases as described in United
Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR
497, [2015]
FCAFC 1 (referred to as UFU v CFA 2015) at [179]–[214].
[8]. UFU v CFA 2015, op.
cit.
[9]. Department
of Employment, Submission,
no. 2, to Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, September 2016, p. 3.
[10]. Proposed
Country
Fire Authority-United Firefighters Union of Australia Operational Staff
Enterprise Agreement 2016, CFA website.
[11]. Volunteer
Fire Brigades Victoria v CFA (Discovery ruling) [2016] VSC 573.
[12]. Country
Fire Authority Act 1958.
[13]. Volunteer
Fire Brigade Victoria (VFBV), Victoria
CFA Volunteer Charter, VFBV website, 27 February 2011. The CFA states
that ‘The Volunteer Charter is an agreed commitment by the State of Victoria,
CFA and VFBV on behalf of CFA Volunteers to each other. It ensures the State of
Victoria and CFA will commit to consultation with Volunteers about all matters
which might reasonably be expected to affect Volunteers.’ CFA, ‘Act and regulations’,
CFA website. The Volunteer Charter is recognised and the CFA must have regard
to its principles, under sections 6F to 6I of the Country
Fire Authority Act 1958 (Vic). The VFBV’s concerns regarding the
agreement and process are outlined further on its website: A Ford (CEO VFBV), ‘CFA
board approves UFU EBA – no changes put forward by volunteers included’,
VFBV website, 14 August 2016.
[14]. Victorian
Government, Submission,
no. 1, to Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 12 September 2016, p. 8.
[15]. J
Teicher, ‘What's
the Victorian government's dispute with the CFA about? And how will it affect
the election?’, The Conversation, 1 July 2016.
[16]. S
Whyte, ‘Fighting
fire with ... what, exactly?’, Crikey, 6 June 2016.
[17]. R
Harris, ‘Vow
to fireys backed’, Herald Sun, 11 July 2016, p. 5.
[18]. M
Turnbull, ‘Second
reading speech: Fair Work Amendment (Respect for Emergency Services Volunteers)
Bill 2016’, House of Representatives, Debates, 31 August 2016, p. 80.
[19]. Senate
Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016 [provisions],The Senate, Canberra, 2016.
[20]. B
O’Connor (Shadow Minister for Employment and Workplace relations), Interview
with Greg Jennett, ABC News 24, ABCC; CFA; disclosure, transcript, 31 August 2016.
[21]. F
Hunter, ‘One
Nation votes key to CFA law bid’, The Age, 24 August 2016, p. 5.
[22]. Ibid.
[23]. A
Smethurst, ‘Hanson
leans to CFA laws’, Herald Sun, 20 September 2016, p. 8.
[24]. VFBV,
‘The
Federal Government’s volunteer protection amendments to the Fair Work Act’,
VFBV website, 23 August 2016.
[25]. United
Firefighters Union of Australia – Victoria Branch, ‘Important:
members asked to voice their concerns to senators about proposed changes to the
fair work act as a matter of urgency’, UFUVIC Bulletin, 151(22), 27
August 2016.
[26]. Ibid.
The federal body of the UFU also stated its opposition to the Bill in a
detailed submission, UFU, Submission,
no. 54, to the Senate Education and Employment Legislation Committee Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 12 September 2016.
[27]. See
for example; Melton Fire Brigade, Submission,
no. 50, to Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, September 2016.
[28]. See
for example; Police Federation of Australia, Submission,
no. 6, to the Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 12 September 2016; Ambulance Employees Australia Victoria, Submission,
no. 13, to Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 2016, and the Australian Nursing and Midwifery Federation (Victorian
Branch), Submission,
no. 14, to Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 9 September 2016.
[29]. Victorian
Government, Inquiry into the Fair Work Amendment (Respect for Emergency
Services Volunteers) Bill 2016, op. cit., pp. 4–5.
[30]. Ibid.,
p. 4.
[31]. Ibid.,
p. 7.
[32]. Proposed
subparagraph 195A(4)(ii).
[33]. Police
Federation of Australia, Inquiry into the Fair Work Amendment (Respect for
Emergency Services Volunteers) Bill 2016, op. cit., pp. 1–2.
[34]. NSW
Rural Fire Service Association, Submission,
no. 22, to the Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, 12 September 2016.
[35]. Bendigo
Fire Brigade, Submission,
no. 307, to the Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, September 2016, p. 2.
[36]. Ibid.,
p. 4.
[37]. Explanatory
Memorandum, Fair Work Amendment (Respect for Emergency Services Volunteers)
Bill 2016, p. iii.
[38]. The
Statement of Compatibility with Human Rights can be found at pages iv–viii of
the Explanatory Memorandum to the Bill.
[39]. However,
some Human Rights concerns were raised in relation to the earlier version of
the proposed agreement itself. The Victorian Equal Opportunity and Human Rights
Commission reportedly ruled that the originally proposed EA was discriminatory
‘towards women, parents, carers and people with disabilities’ hence and may
breach the Equal
Opportunity Act 1995 (Vic), resulting in it not being human-rights
compliant. See: Australian Broadcasting Commission (ABC), ‘CFA
rejects proposed EBA as Premier Andrews returns for crisis meetings’, ABC
News, (online edition), 6 June 2016; J Gordon, ‘Human
rights watchdog rules against firefighters' union industrial deal’, The
Age, (online edition), 5 June 2016.
[40]. Fair
Work Act 2009, paragraph 194(a), section 195.
[41]. Fair
Work Act 2009, section 253 and subsection 409(3).
[42]. Proposed
subparagraph 195A(4)(i).
[43]. Proposed
subparagraph 195A(4)(ii).
[44]. M
Turnbull, ‘Second
reading speech: Fair Work Amendment (Respect for Emergency Services Volunteers)
Bill 2016 ’, House of Representatives, Debates, 31 August 2016, pp. 24–26.
[45]. UFU
v CFA 2015, op. cit.
[46]. Fair
Work (Commonwealth Powers) Act 2009 (Vic); Commonwealth Powers
(Industrial Relations) Act 1996 (Vic).
[47]. Melbourne
Corporation v Commonwealth (1947) 74 CLR 31, [1947]
HCA 26.
[48]. AEU,
op. cit.
[49]. UFU
v CFA 2015, op. cit.
[50]. Ibid.,
[179]–[214].
[51]. R
Urban, ‘Experts
query Turnbull's CFA 'solution' priority’, The Australian, 12 July
2016, p. 7.
[52]. A
Stewart, Submission,
no. 17, to the Senate Education and Employment Legislation Committee, Inquiry
into the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016, September 2016, p.4.
[53]. Victorian
Government, Inquiry into the Fair Work Amendment (Respect for Emergency
Services Volunteers) Bill 2016, op. cit.
[54]. Stewart,
Inquiry into the Fair Work Amendment (Respect for Emergency Services Volunteers)
Bill 2016, op. cit., p. 5.
[55]. Fair
Work Act 2009, sections 183, 210, 217–218, 222 and 225.
[56]. Ibid,
sections 229, 234, 236, 238 and 240.
[57]. Explanatory
Memorandum, Fair Work Amendment (Respect for Emergency Services Volunteers)
Bill 2016, op. cit., p. 6.
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