The key purpose of the bill is to preclude or render ineffective any
term in an enterprise bargaining agreement (EBA) that would impact on the
capacity of a designated emergency management body to properly manage its
volunteers, regardless of whether the EBA comes into effect before or after the
bill is passed.
In addition, the bill provides a voice for volunteer bodies by according
them a statutory right to make submissions to the Fair Work Commission (FWC) in
respect of issues arising from an EBA that affects, or could affect, the
volunteers of a designated emergency management body.
Submitters in support of the bill emphasised that numerous clauses in the
proposed EBA between the Victorian Country Fire Authority (CFA) and the United
Firefighters Union (UFU) would adversely affect the overwhelmingly volunteer
firefighting workforce (approximately 97 per cent) of the CFA.
These submitters also argued that the proposed EBA contained numerous
clauses that were inconsistent with the CFA Act and would constrain the CFA
Chief [Fire] Officer in carrying out their duties.
These submitters therefore argued that the bill was a necessary, timely,
and targeted response to the CFA dispute that would provide volunteers with an
appropriate voice in matters where their interests were affected by an EBA.
Submitters who opposed the bill argued that the proposed EBA dealt with
the relationship between the CFA and its paid employees and did not impinge on
the role of volunteers in the CFA.
Submitters opposed to the bill also argued that the bill was inconsistent
with the basic policy of collective bargaining, was unnecessary and uncertain
in its scope, and was an unwarranted intervention into state matters.
Versions of the EBA
The committee notes that the FWC does not publish a proposed EBA until it
has been finally agreed by both parties.
The EBA between the UFU and the CFA has been through various iterations.
The most up-to-date version at the time of writing was provided to the
committee as an attachment to the submission from the UFU Victoria Branch and
labelled '2016 CFA UFU Operational Staff Enterprise Agreement 2016 – FINAL'.
The reference to EBA clauses in this report is taken from version 17.6
of the EBA provided by the UFU with their submission. However, the FWC 'Final
Recommendation' of 1 June 2016
referred to an earlier version of the EBA. The committee notes that the clauses
between various versions of the EBA do not necessarily align. There is,
therefore, some inconsistency between the numbering of the clauses to which the
FWC (and some submitters) refer and the numbering of the clauses in the most
recent version of the EBA. While the report refers to the clause numbers as
they currently stand, where possible, the committee also provides the previous
clause number in square brackets afterwards.
The rest of this chapter canvasses the key issues raised by submitters
and witnesses to this inquiry in greater detail.
Adverse impact of the EBA on volunteers and CFA culture
As noted in chapter two, the CFA is a statutory agency operating under
the CFA Act. That same Act also accords statutory recognition to the role and
voice of volunteers in the CFA.
Mr John Peberdy was a CFA board member from September 2009 to June 2013,
deputy chair from October 2013 to August 2015, and acting chair from 29 August
2015 to 17 June 2016. He argued that the aim of adding the volunteer charter
(sections 6F to 6I) to the CFA Act was 'to build a strong, vibrant and capable
Mr Peberdy pointed out that the role of paid firefighters under the CFA
Act is to support the volunteers in a fully integrated manner
and that, in the future, there would be an increase in the integrated station
model 'in densely populated locations including peri-urban Melbourne and larger
Mr Peberdy also submitted that during his time as a CFA board member,
his experience of integrated stations was mixed. While career firefighters at
some stations treated volunteers respectfully and worked well together, at
other stations career firefighters expressed a disregard for volunteers and
treated them as 'second‑class citizens'.
This sentiment of volunteers being treated as second-class citizens was
echoed by volunteer firefighters as well. For instance Mr Greg McManus, a
volunteer with 26 years of experience at the Lara fire brigade in the North
Geelong district, highlighted the controlling nature of the EBA's education
It [the EBA] relates to community education as well. We are a
brigade that does a lot of community education. We have a very strong community
education workforce. Clause 17 actually states that community education must
only be performed by paid firefighters, and volunteers can only do it if the
paid firefighters are unavailable. While I have no issue with paid firefighters
doing community education—and they should do it—to have volunteers subjugated
and be second-class citizens when it comes to delivering community education is
a real slap in the face to our members.
Another Victorian firefighter who expressed concerns over the EBA was
Mr Jay Martin. With over 22 years' experience, Mr Martin explained that he
...concerned that union influence and "consultation"
will erode CFA management decisions making and erode the role of volunteers
within CFA whereby a divide is created between paid and volunteer firefighters.
The EBA will impact the ability of volunteers to fulfil operational and
management roles across the organisation and relegate them to the rank of
second class citizen. The EBA wishes to have volunteers closed out from
applying for roles across CFA such as community education coordinators and
brigade support officers. I believe this is in itself discriminatory and
Similar concerns were raised by Ms Leigh Sutton, a member of the
Fenton’s Creek fire brigade (North West region) who submitted that:
The worth and value of the CFA volunteers would be diminished
by insisting on paid firefighters taking control of a fire ground. They would
be reduced to second class workers even though they have the same expertise and
possibly greater experience in firefighting, especially bushfires.
Ms Sue Bull was another volunteer who expressed deep concerns about the
treatment of volunteers if the EBA is signed off:
To be treated as second class members of CFA & to be
minimalised in such a habitual manner is a risk to public safety. This closed
shop mentality often associated with unionised work places is risking the
dismantling of CFA as a community embedded volunteer based emergency service.
The cost to Victoria by a grab for power & control that disempowers both
CFA's Chief Fire Officer & the CFA Board will be the loss of volunteer
participation in protecting their communities.
Adverse impact of the EBA on emergency management legislation
Hierarchy of Commonwealth and state
The FWC is an arbiter under the Fair Work Act 2009 (Cth) (FW Act)
for determining unresolved disputes between parties, generally employers and
the union representing the employees. The negotiations are usually restricted
to the parties involved, and this may involve a state government if they have
responsibility for funding a service provider.
Unlike most other states, emergency services workers in Victoria are
employed under the FW Act rather than under specific state legislation.
Several submitters expressed a concern that the FW Act in its current
form could override relevant state legislation such as the CFA Act. These
submitters specifically argued that clauses within the proposed EBA would be
incompatible with the CFA Act.
In this regard, the VFBV drew attention to what it saw as a dangerous
anomaly in that the FWC could alter the operation of state emergency management
arrangements merely by approving an EBA under the FW Act:
The Fair Work Commission is bound to act and approve an
enterprise agreement where there is compliance with the relevant provisions of
the FWA [Fair Work Act]. Under the current FWA there is no requirement for them
to be cognisant of or have regard to the provisions of state or territory
emergency management legislation or matters of public safety. Therefore any
terms in an enterprise agreement that are contrary or inconsistent with the
provisions of state or territory emergency management legislation or public
safety are currently not relevant to whether the FWC approves such enterprise
The VFBV spelt out its concern that a substantial number of clauses in the
proposed EBA would undermine CFA management prerogative and were also inconsistent
with certain provisions of the CFA Act:
The UFU Agreement contains clauses requiring all manner of
matters be the subject of a consultation process by consensus between CFA and
the union. Under Victorian state legislation many of these matters are the
preserve of CFA Board and management including matters of statutory
responsibility reserved to the CFA Board and the CFA Chief (Fire) Officer under
the CFA Act.
More explicitly, the UFU Agreement has more than 50 clauses
on matters where no decision can be made or implemented without the union's
explicit agreement. Again these matters include those that by statute are the
responsibility of the CFA Board and/or the Chief (Fire) Officer including
operational matters; the provision of support and equipment to volunteers; and
the contribution and role of volunteers.
These requirements of the UFU Agreement represent not only
the subordination of appropriate management prerogative but the contradiction
of statutory requirements and responsibilities under Victorian legislation.
The CFA Act remains unaltered, with the CFA Board, CEO and
Chief (Fire) Officer being held accountable for relevant decisions, however if
the UFU Agreement is approved by the Fair Work Commission then they will not be
able to make such decisions.
Likewise, Mr Peberdy argued that the EBA would effectively give the UFU
a veto over the decisions of the CFA board, Chief Officer and CFA management. Furthermore,
the outcome of the EBA would be to hand control of resources to career
fire-fighters, and thereby relegate volunteers to 'second-class' firefighters.
Mr Joe Buffone, the former Chief [Fire] Officer of the CFA advised the Standing
Committee on Environment and Planning of the Parliament of Victoria that his
resignation occurred as a result of concerns with the proposed EBA, following
extensive discussions with the new CFA chair, new CEO, new minister, and the
emergency management commissioner. He told the Victorian parliamentary
...the reason that I resigned was as a result of the proposed
EBA and that it put me in a position such that my ability to perform my
statutory obligations as the chief officer under the CFA Act had been
fundamentally inhibited. The Victorian government's decision to implement the
proposed agreement had put undue pressure on me and made my position untenable.
Mr Buffone stated that around 50 clauses in the EBA contained a UFU veto
power that would override his ability to fulfil his role including
policy-making, timely service delivery decisions and allocating resources. He
pointed out that the EBA would have an operational impact beyond just
The EBA touches on trainers, it touches on our operational
command and control staff, it touches on what I would describe as our managers
in the field, who are our operations officers and our ops managers who
basically do the day-to-day planning and preparedness, day-to-day management,
workforce management — and when I talk workforce management, that is workforce
management across volunteers and career staff.
Furthermore, Mr Buffone observed that the clauses in the EBA could not
be taken in isolation because the inter-related effect of the clauses was
complex and cumulative and had an impact on how the CFA conducted its
Ms Lucinda Nolan, the former Chief Executive Officer (CEO) of the CFA,
agreed with the sentiments expressed by Mr Buffone. She told the committee that
the EBA had not been resolved in over three years because it overreached into operational
areas that would have an adverse effect on the capacity of the Chief Officer to
perform his or her operational duties. For example, there were '50 new segments
within it [the EBA] covering a broad range of managerial functions and
accountabilities where we need to not only consult but agree'.
Ms Nolan also pointed out that as CEO, she would, along with the Chief
Officer, be fully accountable for the operations and management of the CFA and
yet under the proposed EBA, the CEO and Chief Officer would be handing over
'control, management and decision making' to the UFU.
In a similar vein, Mr Brad Battin MP, Shadow Minister for Emergency
Services (Victoria), argued that the consultation and agreement requirements
contained in the EBA 'will trigger a chain of events that will force the CO
[Chief Fire Officer] to a time consuming dispute resolutions clause' and may
end up being referred to the FWC. According to Mr Battin, this outcome would
compromise the ability of senior CFA management to manage their workforce and
protect the community.
Mr Michael Tudball is a Country Fire Authority (CFA) Volunteer Member,
firefighter for over 36 years and a government appointed CFA Board Member first
appointed in 2003 and re-appointed successively in 2007, 2011, 2014. Mr Tudball,
along with the rest of the CFA Board, was removed by the Victorian State
Government in June 2016.
Mr Tudball reflected the views of many of the submitters to this inquiry
when he stated that the CFA is unique as a fully integrated volunteer and
career firefighting workforce. As such, Mr Tudball stated that the CFA
'requires a unique approach to ensure that throughout any deliberations or
decisions these two key components of our workforce are not disadvantaged'.
As set out in chapter two, the CFA Act accords statutory recognition to
the role and voice of volunteers in the CFA. In particular, sections 6F, 6G, 6H
and 6I of the CFA Act recognise the CFA as primarily a volunteer organisation
supported by employees and require the government and the CFA to, amongst other
things, recognise the role played by volunteers, consult with the VFBV over
matters that affect volunteers, and develop policy and organisational
arrangement that strengthen volunteer capacity to provide services to the CFA.
The Volunteer Charter (see Appendix 4) to which the CFA Act refers was a
document signed on 27 February 2011 by the Premier of Victoria, the Minister
for Police and Emergency Services, the President of the VFBV, and the Chair of
the CFA. The preamble to the Volunteer Charter states that:
Volunteers of the Country Fire Authority of Victoria (CFA)
are fundamental to emergency management in Victoria and their value and
importance is recognised. Volunteers and the commitment they bring to the
protection of the Victorian community remain the core strength of CFA. The
individual and collective interests and needs of Volunteers must be protected
if they are to deliver their services safely and effectively. They must always
be consulted about issues that affect them as Volunteers. This Charter
recognises that the members of CFA and their Association, Volunteer Fire
Brigades Victoria (VFBV), operate under the Country Fire Authority Act 1958.
This Charter is a statement of principle that will apply to the relationship
between CFA, the State of Victoria and CFA's Volunteers.
Mr Tudball submitted that he had legal advice that indicated the CFA
would breach its statutory obligations, in particular the Volunteer Charter
embodied in sections 6F to 6I of the CFA Act, if it agreed to certain clauses
in the proposed EBA such as those that provide the UFU with the power to veto
In his evidence to the Victorian parliamentary inquiry, Mr Buffone also
indicated that the EBA would compromise his statutory obligations with respect
to the role of volunteers in the CFA:
The Parliament of Victoria acknowledges that CFA is
fundamentally a volunteer organisation. I think that is an important context to
put when we are talking about the relationship of an industrial agreement and
the impact of an organisation that is fundamentally a volunteer organisation.
CFA is not two separate organisations. It is not the same as the MFB. It is not
a paid workforce or a career workforce and a volunteer workforce that sit
separately. It is actually an integrated model that delivers critical services
all the way from the fringes of Melbourne right out to the single shed in
Ms Nolan told the committee that her 'greatest fear' was that the EBA
would alienate volunteers:
The CFA is a volunteer organisation. We rely heavily on the
goodwill of our volunteers to keep our communities safe. Not only do they turn
out to support and protect their own communities, but they go as part of our
surge capacity, and that could be not only state but interstate and overseas. I
fear that, the way this goes, the environment will become so toxic, so
divisive, that it will not be an attractive place to volunteer and they will
seek to volunteer their services to other emergency agencies, such as the SES
The Victorian Farmers Federation (VFF) argued that all clauses in the
EBA that restricted the CFA Chief Officer and board from exercising their right
to recruit, direct and allocate staff should be removed.
The Council of Australian Volunteer Fire Associations (CAVFA) represents
more than 250,000 volunteer fire-fighters and operational support volunteers
across Australia. CAVFA was concerned that EBAs registered with the FWC could
have adverse impacts on volunteers across Australia and that this was
'unacceptable, and untenable for any volunteer organisation serving their
communities across Australia'. Furthermore CAVFA warned that if the EBA was
successfully registered with the FWC, it would set a precedent for other
branches of the UFU across Australia thereby creating significant issues for
volunteer services Australia-wide.
Some witnesses at the Melbourne hearing disagreed with the proposition
that an EBA could override state legislation. Mr Steve Warrington, Chief [Fire]
Officer of the CFA told the committee that an EBA could not override his powers
under the CFA Act as Chief Officer:
The reality is that section 27 of the CFA Act essentially
says that I have power—and, with that, the responsibility—to make sure
Victorians are safe from fire and emergency and over all people and resources
in our organisation. In my view, that overrides any form of legislation. When
we are at an emergency, I do not see that happening. Leading up to it, I see
that we should be consulting volunteers and our career staff in a formal
consultation mechanism. This particular document has a dispute resolution
officer and it has access to Fair Work; there are a number of dispute
resolution processes within it. Should we get to that stage, it would be
disappointing—and it is certainly not our experience to date that that has
Likewise, Professor Andrew Stewart told the committee that the FW Act provides
that an EBA cannot override state or territory laws dealing with certain matters.
In particular, Professor Stewart advised that an EBA
...cannot override state laws dealing with essential services
or emergency management to the extent that those laws are concerned with a
direction to perform work. So, if a state essential services or emergency
law—and the CFA legislation would, on the face of it, fall within that
category—provides for certain things to happen, to secure essential services or
to deal with an emergency, a federal enterprise agreement cannot override that.
Power of veto—consultation and agreement requirements
The issue of the consultation and agreement requirements contained
within the proposed EBA was at the heart of many of the complaints made by
submitters and witnesses. These submitters argued that the requirement imposed
on the CFA to reach agreement with the UFU on numerous matters effectively
conferred upon the UFU a power to veto operational decisions made by CFA senior
The VFBV submitted that both the CFA and the Metropolitan Fire Brigade
have 'long held serious concerns' regarding the inclusion of consult and agree
clauses in previous and proposed enterprise agreements 'effectively resulting
in the UFU having a veto over Government agency decision-making.'
The VFBV submission elaborated on the veto mechanism stating:
VFBV asserts that the UFU’s ability to block, prevent, seek
agreement or delay decisions of the Authority and its officers – represents
veto powers. The requirement to reach agreement before something can be done,
changed or implemented provides the UFU an ability to withhold agreement, and
thus delay, impede or stop a decision. VFBV contends this constitutes a clear
Attached to the VFBV's submission, and reproduced at Appendix 3, is a
comprehensive table which sets out 46 specific instances where EBA clauses
constrain CFA decision making and erode the CFA's ability to meet its
consultation obligations to volunteers consistent with the CFA Act and
Examples include issues such as constraints relating to Brigade Administrative
Support Officers (BASOs), cross crewing, part‑time employees, training
and professional development and uniforms. Many of these issues are discussed
In June 2016, the former Chief Officer of the Victorian Metropolitan
Fire and Emergency Services Board (MFB), Mr Peter Rau, wrote to the Victorian
Emergency Services Minister, the Hon James Merlino MP, raising similar concerns
about the MFB-UFU enterprise agreement. In particular Mr Rau highlighted the
current UFU veto power in the MFB-UFU enterprise agreement:
The current Enterprise Agreement and its power of veto over
my statutory responsibilities is unworkable and undermines community safety.
I have considered the proposed UFU agreement for the CFA.
This proposal would, if applied to the MFB, exacerbate the failings of the
current MFB agreement. It would be inappropriate for the MFB to adopt these
arrangements. The extensive consult and agree (veto) provisions would continue
to permit the UFU to interfere with fundamental operational decisions of the
MFB. In the MFB's experience, it is no answer to these concerns to have the
Fair Work Commission arbitrate on matters that are not agreed. Such an
arrangement is not compatible with effective and timely decision making
relating to emergency management and public safety.
The VFF was highly critical of clauses in the EBA related to staff,
resources, new trucks, other appliances, and policy that required referral to a
consultation committee made up of equal numbers of employer and employee
representatives appointed by the CFA and UFU respectively. The VFF noted that
all 'Clause 21 referrals' require the consultative committee to reach consensus
before the changes can proceed. If the CFA and the UFU are unable to reach
agreement, the matter is referred to the FWC.
Clause 16.1 of the proposed EBA states that:
Given the agreed impact of such programs and roles [Volunteer
Support Program/Officers] on persons covered by this Agreement, the parties
have agreed that the CFA will consult and reach agreement with the UFU under
clause 21 on the structure of any Volunteer Support Programs impacting on
employees and/or any implementation of Volunteer Support Officers (or person(s)
engaged in any similar classification or position howsoever named) impacting on
employees, prior to any such decision or implementation.
The VFF pointed out that under clause 16.1, the CFA cannot change
volunteer support programs/officers without consulting and securing agreement
from the UFU.
Clause 21 of the EBA sets out the terms under which consultation is to
be conducted including the establishment of a Consultation Committee (clause
21.2). Clause 21A sets out the terms for the operation of the Dispute
Any dispute from a party regarding consultation shall be
dealt with in accordance with this clause and the dispute resolution clause of
this agreement. The Dispute Resolution Officer is responsible for ensuring
consultation proceeds pursuant to this Agreement in a fair, timely and
effective manner. The Dispute Resolution Officer is to act independently of the
Clause 22 (Introduction of Change) states:
Where the employer wishes to implement change in matters
affecting the application or operation of the agreement or pertaining to the
employment relationship in any of the workplaces covered by this agreement, the
provisions of clause 21 will apply.
As the VFF pointed out, the operation of clauses 21 and 22 effectively
mean that consultation must occur 'on all aspects including but not limited to
the design and specification, infrastructure, staffing levels and conditions,
training and allowances related to the appliance'.
In summary, the VFBV argued that the requirement for the CFA to obtain
the UFU's agreement on a raft of matters in the EBA amounted to excessive and
unaccountable union control and an effective veto over CFA management decision
Even though that state's legislation makes the CFA Board and
its senior officers accountable for such matters the UFU Agreement dissolves
any notion of appropriate responsible management prerogative and transfers
an effective right of undue control to the union’s leadership.
The UFU disagreed with the VFBV's characterisation of the process and argued
that consultation process in the EBA was one of resolution:
The Agreement will not give the UFU a veto over CFA decisions
but provides for a robust consultation process that enables firefighters to
have critical input into the decisions that directly affect their workplace and
Mr Peter Marshall, National Secretary of the UFU, told the committee
that such a process was not usual in an EBA:
There is a process of resolution and consultation on
important issues, given the nature of our industry, which not unusual. Our
industry is a very dangerous one. To say that we have to be consulted on every
facet of operational activities is just simply not true.
Furthermore, career firefighters from integrated stations argued that
union concerns over consult and agree requirements stemmed from legitimate
concerns over firefighter safety. Career firefighters objected to the portrayal
of the consultation requirements as a veto power. Career firefighter Mr Alan
Thistlethwaite from Greenvale, argued that the veto contained in the EBA was
...It is portrayed as a veto but that is not a veto, and we all
know that is not a veto because it states in there that it requires agreement,
and if it cannot be agreed to then it goes to a committee or a distribution
officer so that that decision can then be made. It is about firefighter safety,
the community's safety and ensuring that we have the best possible procedures
and best possible equipment that can be out there. I cannot see how anybody can
be against that and say that our safety is not important.
If a dispute cannot be resolved through the extensive processes set out
in the EBA, ultimately it may be referred by the UFU or the CFA to the FWC. The
FWC may utilise all its powers in conciliation and arbitration to settle the
The explanations by the UFU and career firefighters did little to allay
the concerns of individual volunteer firefighters. Volunteer firefighters
viewed the UFU demands for consultation on matters that will directly impact
volunteers as unreasonable. For example, Mr Chris Rutherfurd, a CFA volunteer
firefighter and SES rescue responder, submitted that:
Requiring union agreement for all workplace changes including
those that directly affects volunteers is unreasonable in my opinion as it will
make the already complex task of tasking and crewing for large scale
deployments even more complicated as it will require agreement from the union
before something can be done... I don't see a problem with the union fighting
to benefit career firefighters as that is the role of the union but I feel that
it would be very dangerous and restrictive to give them that same power over
volunteers who have at no time accepted the union for representation.
Other volunteer representatives told the committee that the EBA's numerous
'consult and agree' clauses give the UFU an effective veto power over the
operational responsibilities of the CFA. For instance, Mr David Blackburn, a
CFA volunteer in the Woorndoo brigade in the Westmere group for 40 years,
explained the impact of the 'consult and agree' clauses:
The current version makes reference to 50 clauses that
consultation and agreement must be reached by UFU and CFA with regard to change
in the organisation. Basically, these clauses have veto rights by UFU over CFA.
With regard to organisational and operational issues, this is ridiculous and dangerous
and undermines volunteers...
Volunteers also expressed concern that the proposed EBA would damage the
integrity of their organisation:
CFA volunteers are often the first responders to hundreds of
incidents annually across the state, 24 hours a day, seven days a week.
Volunteers are well equipped to apply professional firefighting skills at these
incidents, as they are often remote from the resources of manned CFA stations
and district headquarters...Volunteers are an essential integrated force of disciplined,
experienced, diverse and professional firefighters. We have become involved in
this current issue not to gain status or power or with any pecuniary motivation
whatsoever but really to protect the power and integrity of the CFA CEO, chief
officer and board of this great organisation to allow it to function without
Mr Lachlan Gales from the Wangaratta district stressed to the committee
the concern volunteers had about being effectively left out of decision making:
The issue with agreement between consultation with volunteers
and CFA is that we do not have an arrangement with the CFA that says that
decisions will not be made without our agreement. This EBA puts in place a
system where decisions will not be made without the agreement of the union. We
do not have that right.
This issue goes to whether volunteers effectively have a say in
important CFA operational matters.
In regards to the committee system put in place by the EBA, Mr Gales
told the committee that:
...any findings or preferences of that committee will be
effectively overridden if the union choose to take a different path, because
they have, or will have, an agreement that says they must agree. So they will
have a power of veto which we just do not have.
Content of the proposed EBA
One of the key areas of contention is the scope of the EBA between the
CFA and the UFU. While the UFU argued that the EBA was an appropriate document
to achieve the recommendations of the 2009 Royal Commission,
the CFA and volunteers maintained that the EBA included areas which impact on
Mr Marshall told the committee that the EBA represented a long process
in which the UFU had sought to create common ground between the CFA and the
...Essentially, in Victoria there are two main fire services,
and then there is Department of Environment, Land, Water and Planning (DELWP).
The royal commission was extremely scathing on the fact that that assets paid
by the community were not utilised to their full potential because of
'differences in processes and procedures'.... For the very first time in these
enterprise agreements, in the command and control structure for career officers
the classification titles will be the same—from recruit firefighter up to
commander, and the senior ranks above them. We are talking about career
personnel, because this does not have any impact on volunteers. The
classifications above that will be referred to Fair Work for harmonisation of
that classification. So when you are on the fireground you will be able to
identify a commander as opposed to an operations officer, who are essentially
the same thing but are a different classification and are identified
The VFBV was critical of the UFU's argument that the EBA represented a
more consistent approach. Mr Andrew Ford, Chief Executive Officer of the VFBV
lamented the inclusion of many extraneous matters within the EBA beyond clauses
covering career firefighters' pay and conditions:
We have said all along that if this EBA extracted those matters
that were not about pay and conditions, extracted particularly those matters
that impact on the chief officer's decision making about resources and support
to volunteers, extracted those things that are not even about the operational
employees covered by the EBA—those support programs, for example—and dealt with
them through the CFA Act, dealt with them through the normal process where
volunteers have a voice, dealt with the issues of service gaps through the
normal CFA operational planning, dealt with the issues of procedure and policy
through the normal standard operating procedures work in consultation, where
volunteers and paid people can be involved together, and left the EBA to the
pay and conditions, it would have been signed off in January.
Mr Ford went on to contest the argument put by several career
firefighting representatives that there was no alternative avenue other than
the EBA to address these important matters:
I heard that [at the hearing in Macedon] last week. It will
be in the transcript. I remember those words. People said, 'We've got no other
mechanism to fix this problem and we have, out of desperation, brought it to
the EBA because it can make things happen.' The concern I have with that is
that, if an issue should be fixed in resource planning by the chief officer or
a capacity gap should be fixed by the resource support and capacity building by
the organisation and the chief officer, that should happen. It should happen
outside of the EBA, in the organisation, and it should happen in a range of
ways. The answer to every capacity gap is not more paid firefighters. It will
be at times. I myself, in my past role with CFA, have been involved in actually
implementing additional paid firefighters to almost half a dozen volunteer
stations, so I am well aware of the times when you will need to have paid
firefighters. The point I am making is that that happens as part of normal
operational management and resource planning in CFA, not a pay deal, not an
EBA. So that issue should certainly be fixed inside CFA and outside of the EBA.
Senator Back summed up witnesses' concerns about the inclusion of
aspects of what should be included in standard operating procedures in the EBA:
I have been agonising over this for some period of time, but
what is clear to me from most of the examples that most of you have given,
starting with you, Mr Dowie, in terms of the incident control the other day,
and Mr Shawcross in terms of the letter that you showed me, is that this
has nothing to do with enterprise bargaining. These are standard operating
procedures. Mr Spicer, you eloquently and correctly explained to us why we need
the seven personnel. These are all in standard operating procedures. In terms
of the hierarchy of call-out, in terms of the mistake made—as evidenced in this
letter; the fact that the correct group were not called out—that has nothing to
do with enterprise bargaining.
Concern was expressed that one of the main reasons the EBA was so large
was that it appeared to contain several clauses that were more appropriate to
an operations manual than an EBA. Furthermore, as set out in the following
paragraphs, many of these particular operational type clauses caused particular
concern for volunteer firefighters. Many volunteer firefighters provided
examples of what they saw as the overreach of the EBA into the command
structure of the CFA.
Mr Walter Aich, a volunteer firefighter from the Warragul district, told
the committee that he was concerned that the EBA aims to have an impact outside
of its stated scope:
I believe that the proposed EBA that led to this bill being
introduced will negatively impact the other workers sharing this
workplace—namely, the around 35 000 unpaid CFA firefighters—and have
impact outside the scope of an EBA in that it seeks to covers workers from
other awards, like BASOs [Brigade Administrative Support Program] and volunteer
support officers and also has a potential impact on other emergency services like
the SES. I believe that this EBA seeks to pre-empt government policy regarding
the way different emergency services operate and cooperate.
Mr Aich also raised concerns regarding the EBA's impact on the CFA's
command structure, particularly in operational situations:
I believe that the EBA impacts on the CFA's and, more
importantly, the Chief Officer's ability to manage human and physical resources
by imposing a consultation process that gives the UFU effective veto power over
a range of matters, which go to operating procedures and fireground practices
as well as resource development and distribution of employment, and by seeking
to change the way that CFA volunteers are supported and work with their
communities. I believe that the EBA does not give sufficient importance to the
key role unpaid firefighters play in integrated stations and the need to manage
that relationship carefully.
The likelihood of the EBA acting to constrain CFA operational decisions
was frequently raised by witnesses at the Macedon hearing. Mr Neil Beer, a CFA
member, explained the practical effect of the EBA's constraint on command and
control in the CFA:
It has already been mentioned about the chief officer's
powers, particularly under command and control. Emergency services operations
can be very complex and require the need for quick decision making to suit the
requirements of an incident. Under the EBA, one of the important matters is the
restriction of the chief officers to allocate resources. This is completely
impractical and fraught with danger. We are an organisation with approximately
60 000 members and our expertise at combating incidents on a daily basis,
as well as major long-term campaigns over many years, is well known and proven.
The authority of the chief officer must be reinstated. I cannot stress this
Mr Greg McManus, a volunteer firefighter from the North Geelong district
agreed with the assessment of Mr Beer. Mr McManus noted that:
One of the key things being called out is the power of the
chief officer to make decisions about the deployment of equipment and resources
and personnel, and to do that in a flexible manner. In fact, many of you may
know that the Victorian Fire Services Review, which was handed down late last
year, actually talked about having flexibility and having a more modern way to
deploy resources, particularly staff as support volunteers.
Limitations on the role of volunteers imposed by the EBA
Work organisation and incident
Volunteer firefighters expressed considerable concern about the impact
that the proposed EBA would have on the work performed by volunteers and the
existing chain of command within the CFA. Volunteer firefighters were
particularly concerned about clauses in the EBA that appeared to prevent career
firefighters from reporting to volunteer firefighters.
Clause 35.4 (previously 36.4) currently states:
All employees covered by this agreement shall only report to
operational employees under this agreement or at the rank of DCO [Deputy Chief
Officer] or CO [Chief Officer] when responding to fire alarms or incidents
under this agreement except in the case where the incident is a level 3
multi-agency incident or to a CFA/MFB [Metropolitan Fire Board] incident
controller at an incident.
The VFBV expressed serious concerns about the negative impact of this
clause upon the chain of command and control currently operating in the CFA
because the clause limits the capacity of qualified volunteers to, amongst
other things, control incidents. According to the VFBV, the effect would be to
dismantle the CFA's integrated response to emergencies.
The Victoria Emergency Service Association (VESA) pointed out that
volunteers and staff in emergency service organisations train and operate under
the current operational framework AIIMS (Australasian Interagency Incident
Management System). VESA noted that AIIMS allows all agencies to work together
cooperatively and be able to take on functional management of an event
irrespective of which agency is in control or whether the responders are paid
Mr Greg McManus, a volunteer firefighter from North Geelong, was also
concerned about the EBA's intrusion into the organisation of the CFA,
specifically in the command structure. He told the committee:
...clause 35, which is work organisation... is probably one of
the most misunderstood and talked-about clauses. It goes to the fact of
volunteers reporting to staff members or staff members reporting to volunteers
on the fire ground. It talks about how, at level 3 incidents, staff members can
report to volunteer incident controllers—and that is absolutely correct; it is
right. But with a number of the incidents that people have spoken about
here—and I hope the committee matters can understand this—most of these
incidents are multitiered in their management structure, so, while you may have
a volunteer incident controller, and staff members will report to them as per
the agreement, there may be two or three levels of management underneath that.
You might have divisional commanders, sector commanders, strike team leaders.
All of those—and many of the panel members here, including me, are qualified to
do those roles. If I were a sector commander, for example, staff, according to
this agreement, would not report to me, simply because I am a volunteer. I am
fully qualified, fully trained and have done the role a lot of times, but that
is what the agreement says. It is easy to say that they will report to
volunteer incident controllers, but to have the staff going around the levels
of management up to the incident controller completely breaks down the incident
management structure. Having that discrimination against volunteers, of not
being able to have them report to you simply because they are volunteers—even
though they have the qualifications, skills and, in many cases as cited here,
the local experience and knowledge—takes away from the ability of volunteers to
work in a fully integrated way, as they should.
Mr Lachlan Gales, a volunteer from the Wangaratta district, observed
that the EBA clause which dictates reporting arrangements, and effectively
sidelines volunteers, was criticised by the FWC:
What I would like to point out is that, when this agreement
[the EBA] went to the Fair Work Commissioner with clause 35.4, he amended it;
one of his seven recommendations was to amend it. His recommendation was to
include a line that said 'except in the case where an incident is a level 3
multi-agency incident or to a CFA/MFB incident controller'. Prior to the Fair
Work Commissioner's amendment, this clause read, 'All employees covered by this
agreement shall only report to operational employees.' So the Fair Work
Commissioner saw that that was a flaw and he added to it, but the Fair Work
Commissioner did not fully understand—or it would seem he did not fully
understand—the depth of the hierarchy of control we have. There are many, many
positions of rank—or not rank but many, many positions of responsibility—within
incidents beyond those members. So this, coupled with other clauses in the
agreement, can effectively sideline volunteers from having command roles
wherever operational members—sorry, career members—are on the scene.
Mr Ford pointed out that in an integrated organisation such as the CFA,
the notion that clauses in the EBA only affected career firefighters or
integrated stations was wrong:
No brigade in CFA operates in isolation. Whenever there is an
incident, depending on the incident, there will be multiple brigades, so an
integrated brigade will give support to and be supported by volunteer brigades.
If you change the construct of the nature of CFA's integrated approach, you
impact on volunteers.
For example, Mr Ford stated that the incident reporting requirements in
the EBA would destroy the CFA:
There is a clause in the EBA that says that paid firefighters
or paid employees will not report to volunteers other than to the incident
controller at level 3 incidents. The reality is that the chain of command at an
incident is much more than the incident controller. There will be officers,
paid or volunteer, working as divisional commanders, sector commanders, strike
team leaders and crew leaders. If you break that chain of command and
arbitrarily say that paid people will not report to volunteers, no matter what
their qualifications and experience, you have deconstructed, you have
dismantled, the CFA.
Mr Ford also outlined how the EBA would have a negative impact on
volunteers and volunteer support programs:
The community support facilitator program, which is a non-operational
position that has existed in the past to build volunteer and community
capacity, is disallowed by the EBA.
The brigade administrative support program is another core
volunteer support program. It understands that the work of fire brigades is not
just responding to incidents. It is running the fire brigade. It is being
prepared. It is organising training. It is recording training. It is
maintaining, preparing, acquiring and practising on equipment. It is working
with communities. It is doing pre-incident plans and so forth. The brigade
administrative support officer has become a critical support to volunteers who
are finding that workload burdensome when they need to be able to put all their
energy into other aspects of their work. That program is impacted by the EBA.
There is another support program, the volunteer support
officer program, which, again, is a program aimed at assisting brigades with
volunteer recruitment and retention and with engagement in the community. Where
there is a gap in a brigade's response capability, it helps the brigade bridge
that gap, plan training, target recruitment and target people to be available
at certain times of the day. That program is directly impacted by the EBA.
Dispatch of seven career firefighters
One of the clauses in the EBA that has attracted attention is clause
77.5 (previously clause 83.5) which relates to the dispatch of seven career
firefighters from integrated stations to a fire ground incident before
commencement of safe firefighting operations. On 1 June 2016, Commissioner Roe
of the FWC emphasised that clause 77.5 (previously clause 83.5) only applied to
integrated fire stations made a
non-binding final recommendation on the EBA:
Clause 83.5—the CFA will ensure a
minimum of seven professional firefighters are dispatched to fire ground
incidents before commencement of safe firefighting operations (applies to
integrated stations in Districts 2, 7, 8, 13, 14, 15 and 27)
the changes to clause 83.5 only
relate to integrated stations and to the work of professional firefighters. The
role of volunteers in remote and regional areas and in integrated stations is
not altered by this Agreement.
Clause 77.5 is densely worded and a clearer interpretation of the clause
is given in the Joint Statement of Intent by the CFA and UFU.
It sets out the application of the clause and clarifies that the clause does
not require seven career firefighters to be physically present at a fireground
before firefighting operations can commence:
Seven on the fire ground
6. It is the mutual intention of the parties that clause
77.5, 43.2.7 and 44.13 of the Agreement operates in the following manner:
a. The clause only relates to integrated stations in
districts 2, 7, 8, 13, 14, 15 and 27, and to Warrnambool, Shepparton and Mildura
once the additional resources to achieve seven professional firefighter
positions per shift in Schedule 1 are in place.
b. The requirement only applies to professional firefighters,
it does not prevent volunteers from providing the services normally provided by
c. In the integrated stations where the provision applies it
requires a minimum of seven professional firefighters to be dispatched to fire
ground incidents before commencement of safe firefighting operations. It does
not require seven professional firefighters to be physically at the fire ground
before the commencement of firefighting operations.
d. Incident controllers maintain their discretion as to the
management of resources in the interests of public safety after undertaking a
risk assessment/sizeup upon arrival at the fire/incident.
Given how contentious clause 77.5 has been, the committee was interested
to hear the rationale behind this requirement. Mr Peter Spicer, Senior Station
Officer at Craigieburn and a career firefighter, described to the committee at
its hearing in Macedon on 19 September how he saw the need for seven
professional firefighters to attend an incident:
Let us say we are going to a house fire. The house is going;
it is alight and there are people reported inside. As an incident controller my
first tasking will be for two crew wearing breathing apparatus to take a hose
line, make an entry and start a search. There are my first two. I am the
third—so we are now up to three—because I am the incident controller. When I am
sending two people into that environment it is a totally uncontrolled
environment. It is not like anybody else's workplace. It is totally
uncontrolled. My job is to try and bring some control back to that and get rid
of the variables.
I want another two breathing-apparatus operators on standby,
outside the house, ready to assist those operators inside should the ceiling
collapse, should fire increase and they get trapped or whatever that might be.
It is a safety requirement that I have another two operators. Now we are up to
five. These people are going inside with a hose line and they are going to put
out the fire. They need a pump operator to provide water. There is my No. 6.
The seventh guy should be, probably, managing BA control, knowing who is in and
who is out, how long they have been gone and where they are. He will be doing
that but he will also be running around, essentially, as a gopher outside the
building. He will be getting a ladder off the truck. He will be running another
hose line. He will be getting equipment for the guys inside as they need it.
That is how we come to our seven.
Mr Spicer explained that the need to have all seven firefighters be
professionals rather than volunteers, arose from practical considerations. Mr Spicer
argued that while volunteers are often qualified in the tasks required in a
scenario like a house fire, it is not possible to predict whether the
volunteers who attend the incident will be those qualified or not:
What we do not have is a guarantee that when I go out there
with my crew of three I am going to get an additional four people who are
qualified in those things to an incident. The only way I can be guaranteed I am
going to get that No. 7 at the fireground when I get there or shortly after I get
there is by despatching seven career firefighters. Even assuming that the
volunteer brigade responding with me turns out with a full crew of four people
on their truck, there is still no guarantee of the skills mix I am going to
get. They may be BA qualified, they may not be. They may be pump operators,
they may not be. We just do not know. As I said earlier, it is about removing
those variables. Sure, I can use those people. If the volunteers turn up and
they are breathing-apparatus qualified I will task them and I will use them in
my fire suppression. But if they are not, my plan just went out the window and
I have got two guys inside potentially compromised by a structural collapse or
increasing fire activity, and I have no way to get them out—because the people
who have turned up may not be qualified to do that.
This sentiment underpins the view held by many volunteer firefighters
that they are being treated as second class citizens. See also paragraphs
Provision of support and equipment
The VFBV noted that the EBA undermines key volunteer roles in the CFA:
The UFU Agreement also provides for UFU effective control
over key volunteer support initiatives such as the Brigade Administrative
Support Officer (BASO), the Volunteer Support Officer (VSO) and the Community
Support Facilitator (CSF) programs. These programs are delivered by paid staff
who's pay and conditions are not part of the UFU Agreement. These positions are
not firefighter roles and have no operational role. They directly serve volunteer
brigades and are seen as effective and dedicated programs for maintaining and
building volunteer capacity and capability. The UFU Agreement arbitrarily ropes
them into being classified as operational positions in order that the UFU can
take effective control of them.
Mr Aich, from the Warragul district, told the committee that the EBA
would lead to discrimination against volunteers:
I believe that this EBA would introduce or strengthen
elements of a previous EBA that will allow discrimination against unpaid or
volunteer firefighters by, for example, stipulating different clothing and
protective gear and by interfering with the specialist role that volunteers can
take. It is also extremely ambiguous around the relationship between unpaid and
paid firefighters within fireground command structures. I have not experienced
it but it has been reported to me that even under existing arrangements a
number of unpaid firefighters were told that their instructions would be
refused simply because they were unpaid firefighters.
Mr Greg McManus told the committee of an example in which the EBA had
already caused significant problems for volunteers. He explained that the Lara
Brigade, currently a fully volunteer brigade, is to have paid staff included as
at 1 July 2018. Chief amongst the concerns of the Lara Brigade was the complete
lack of consultation regarding the change in staffing. Mr McManus told the
committee that now the Lara Brigade faced many unanswered questions regarding
equipment, command and control structures, operational decisions, and station
While there may be reasons to use staff or not use staff,
what we need to understand is that that is not really the point about what this
clause is about. There needs to be the ability to deploy resources in a
flexible and creative way, as specified by the chief when he sees fit, taking
into account all factors, including building the capability of the volunteer
brigade in question. This takes away that flexibility. It takes away the
ability of the chief officer to make that decision. What it says is that staff
will move in on a certain date, in a certain way, and that the rostering will
be done without flexibility and without consultation with the brigade...
We have not been consulted, as a brigade, about that change.
In fact, what has happened is the opposite over the last few months. We have
had several meetings with Deputy Chief Officer John Haynes of the CFA. We have
talked about various service delivery options that enhance volunteer support
and enhance the use of volunteers. Some of those options actually talk about
the use of paid personnel to support us, but the decision to implement clause
44 in schedule 1 actually specifies that it be done in a very cookie-cutter
way, without the flexibility of the chief to do that. That, for us, is a very
clear example of where a change will be made. That is why, I guess, our brigade
has been somewhat surprised, and we have members of parliament and Minister
Merlino and Premier Andrews standing up on stage saying, 'No volunteers will be
affected by this.' I am not sure how that can be, when our brigade will have
paid personnel move in—our captain will be removed and be replaced by a paid
firefighter—without any consultation or agreement from us. There are lot of changes
that will happen to the brigade as a result of that.
I am glad that in the next group of panels you will have paid
staff members and volunteers from integrated brigades, because I think there
are some really great stories to share about the success of integrated
brigades. But unfortunately that is not always the case. There are clauses in
the document—for those that have read it, schedule 1 has a thing about lockup
arrangements. It actually specifies in the station what rooms and what doors
volunteers are and are not allowed to go into. We actually paid for some of
that station ourselves. We had sausage sizzles and tin rattles. It also talks
about cross-crewing. If and when staff are to be moved into our station, we
could have fully qualified people who are currently qualified to operate
vehicles and equipment but, because of the cross-crewing clause, they will not
be allowed to get on vehicles with staff members...
In his letter to the Victorian Emergency Services Minister, the former
Chief Officer of the MFB raised concerns about the MFB-UFU enterprise agreement
negotiations, which are similarly troubled to those between the CFA and UFU. Mr Rau
outlined a number of serious examples of when the MFB was unable to roll out
new equipment due to UFU refusals:
I wish to draw to your attention some examples under the
current MFB enterprise agreement that have led to unacceptable situations:
1. For over two years, the MFB was unable to deploy new
advanced appliances because the UFU refused to agree to their deployment. This
came to a head during a week-long heatwave when I needed these appliances to be
deployed to meet the MFB's responsibilities, in particular, the MFB's
responsibilities to support Ambulance Victoria. In this instance I had a direct
request for support from Ambulance Victoria (at SEMT) for additional MFB
resources to deliver pre-hospital emergency medical response. Over a two day
period consultation occurred with the union to try and resolve the matter. Due
to the inability to reach agreement we sought the assistance of the Fair Work
Commission (FWC) and as such, in the middle of the heatwave, two Deputy Chief
Officers spent a further afternoon and evening at the FWC seeking a resolution
to release these appliances into operations the following day, distracting us
from critical operational activities.
Cost of the proposed EBA
The EBA sets out the requirement for the CFA to employ an additional 509
career firefighters by 30 June 2019:
The CFA will establish 509 additional career firefighter
positions in accordance with the minimum staffing set out in the Charts in
Schedule 1 as applicable from time to time. The CFA will deploy an additional
509 career firefighters into these substantive established positions between
the date this agreement commences and 30 June 2019.
The EBA also states that all employees covered by
the terms of this agreement shall receive the following increase in wages:
Table 3.1—Wage increases under the proposed EBA
1 May 2016
1 November 2016
1 May 2017
1 May 2018
1 May 2019
Source: United Firefighters
Union, Submission 83, Attachment 6, Country Fire Authority /
United Firefighters Union of Australia Operational Staff Enterprise Agreement
2016, Clause 89.1.
Several submitters argued that the volunteer-based model is the only
financially sustainable model available for emergency management in Australia.
These submitters were troubled by the overall cost of the EBA and the additional
financial burden that it would impose on all landholders and businesses through
the Fire Services Property Levy (FSPL).
The National Farmers Federation (NFF) noted that the FSPL that Victorian
farmers, households and businesses pay to fund the CFA is calculated on a
combined fixed and variable basis, according to land value. A farmer whose
property has a capital improved value of $1 000 000 would pay roughly
$473 each year.
Many active CFA volunteers are members of the VFF.
The VFF argued that the EBA should not be finalised until the full cost of the
EBA had been subjected to independent assessment and the results made public.
The VFF argued that the assessment should consider not only the impacts of
additional staffing and wage increases including the cost of increased
allowances, penalties and resources needed to employ the existing UFU members,
but also the additional 509 paid firefighters that the EBA requires the CFA to
employ by 30 June 2019.
Mr Tudball stated the former CFA Board had serious misgivings about the
financial implications of the EBA on the CFA and its ability to maintain
infrastructure such as fire stations and fire trucks. Mr Tudball cautioned that
the funding shortfall would impact on volunteer services and community
Mr Tudball submitted that the CFA Board advised the former Victorian
Minister for Emergency Services on 10 June 2016 that the CFA's Chief Financial
Officer estimated that the EBA would cost the CFA $627 million over the 4 years
of the agreement. According to Mr Tudball, more recent advice to the former
Board indicated that the EBA would between $671 and $755 million over 4 years.
Similarly, the VFF was concerned that increasing the number of CFA
career firefighter from about 600 to more than 1000 would lead to a 'blowout'
in the CFA budget.
The NFF argued that even though the Victorian Government has agreed to
cover the base salary costs of the 509 new career firefighters, the CFA would
have to cover a range of associated costs such as station and equipment
upgrades, training, overtime and increased allowances 'including reimbursement
of driving license costs, a minimum one hours' pay per after hours disturbance
with double time after that, stamp duty reimbursement for employees promoted or
transferred to a new location who purchase a new property within 4 years of
moving; and gym membership where gym facilities are not provided'. The NFF
stated that these unfunded additional costs would have to be recovered through
an increase to the FSPL, meaning that the farm sector would be burdened with a
large proportion of the costs involved in resolving the CFA dispute.
Contrary to these concerns, Ms Francis Diver, Chief Executive Officer of
the CFA told the committee that there has been an undertaking from the
Victorian Government to cover the costs of implementing the EBA:
CFA has undertaken a process to cost the agreement, and that
is costing the agreement with all the clarifications that we had from my appointment,
which is very different to some earlier costs that the previous CFA board and
management had made some assumptions about. For that costing, we have reached
an agreed figure with Treasury, and Treasury has provided in writing—...The costs
of the implementation of the enterprise agreement will be fully covered by
government, and there will be no cross-subsidisation from volunteer
initiatives. In addition to that, when the board resolved to authorise the
agreement going to the vote, the board also resolved to ensure that there was
no cross-subsidisation. Both at the government level funding will come, and at
the board level there will be no cross-subsidisation.
Potential inconsistency of the EBA with Equal Opportunities legislation
Mr Tudball submitted that the former CFA Board had alerted the former Victorian
Emergency Services Minister on 10 June 2016 that certain clauses in the EBA
may be discriminatory:
The clear advice of Melina Richards SC, Crown Counsel of the
State of Victoria with Rebecca Preston, Counsel is that the proposed EA
includes discriminatory, unlawful terms. In particular, the advice is that
there are a number of clauses that would place the CFA in breach of its
obligations to provide reasonable accommodation of an employee's responsibilities
as a parent or carer and to make reasonable adjustments for an employee with a
disability. This advice has been shared with you.
Ms Nolan told the committee that, based on legal advice provided to the
CFA, the proposed EBA would exacerbate the lack of gender diversity within the
CFA and would discriminate against people with carer responsibilities who are
unable to work full-time.
Similarly, the VFF argued that all clauses in the EBA that require the
CFA to gain UFU approval on a case-by-case basis to employ casual and part-time
staff should be removed because they act as a major barrier to women working as
paid CFA firefighters.
Mr Tudball noted that diversity is a matter the FWC must take into
account in exercising its functions (s.578(c)) as well as being an objective of
the FW Act (s.3c). However, the former CFA Board advised the former Victorian Emergency
Services Minister that the Board itself was of the view that it must also be
satisfied that the EBA was lawful:
It is of no comfort to the Board to suggest the Commission
(Fair Work Commission) is the entity that 'must be satisfied' of the relevant
requirements on approval. It is the view of the Board that it must be
comfortable that the agreement is lawful and capable of being approved. In fact,
the Board would have to disclose any contrary view it held.
However, Professor Andrew Stewart noted that sections 194(a) and 195 of
the FW Act already provide that an EBA cannot contain terms that discriminate
against employees on the basis of gender, family or caring responsibilities.
Therefore, to the extent that the proposed EBA between the UFU and the CFA
might have discriminatory terms in it, the FWC would be required to reject it.
Relationship of volunteers to their local communities
Mr Peberdy drew attention to the unique relationship between volunteers
and their community and the unique understanding and skill set that they
[Volunteers] understand the environment in which they are
living and how best to communicate with the locals. They have a vested interest
in looking after their family, neighbours, property and the local environs.
This understanding is not picked up in a short space of time.
It comes from living in the area and understanding how to deal with the
challenges the environment. Many of the volunteers have skills developed
through living off the land, or providing services to those who do.
A similar point was made by the NFF which observed that there are
'approximately 220,000 volunteer rural firefighters in Australia and a further
5900 employees. In other words, more than 97% of rural firefighters are
The NFF went on to state that:
Local fire brigades are an important part of life in rural
communities. They are made up of farmers, their families and friends. Volunteers
give up their time and sometimes risk their lives to help others in times of
emergency. They are called on to respond to a range of emergency situations,
including bush and grass fires, house and structure fires, storm damage, search
and rescue, motor vehicle accidents, community education and bush fire
mitigation. This important contribution is one that should be recognized and
supported by all Australian governments. Volunteers deserve better than to be
put in a position where third party interests can dictate what they can and
cannot do to support their communities in times of crisis.
The VFBV drew attention to the fact that the unique advantage of
substantial numbers of emergency service volunteers was the 'surge capacity of
personnel and equipment that can be deployed to multiple and long duration
emergencies anywhere within their state or territory or, where needed, across
Witnesses at the Macedon hearing emphasised the important relationship
between the volunteer firefighters and their local communities. Mr Lachlan
Gales, a volunteer firefighter from the Wangaratta district, stressed the
importance of the volunteers in communities:
CFA brigades are the quintessential example of how the
community can effectively join together for the greater good. People are
attracted to CFA because it allows them to make a contribution knowing they
have autonomy and influence within an organisation that was created by
volunteers for volunteers. This EBA is in effect a grasping of our autonomy and
influence by a minority group within the organisation for their own benefit. If
adopted, it will weaken CFA and diminish volunteerism by creating an
environment not conducive to attracting or retaining the resilient, engaged and
motivated volunteers that our communities have relied on for decades.
Mrs Sharron Jones, another volunteer firefighter from the Wangaratta
district, echoed Mr Gales' comments:
In my own brigade, which is the Tolmie rural fire brigade, we
are the community; we are the people who live in the community and we are the
people who protect our community. We are the people who go out and inspect
houses and give assistance with mitigation and so on. Our community is why we
do this, and the community supports us entirely, so we are the community.
Miss Eliza Sawyer, a volunteer firefighter from the Lilydale district,
explained to the committee that as the fire prevention coordinator at the
Macclesfield fire brigade, a large part of her role is community safety and
education. The focus on education extends to providing Fire Safe Kids sessions
at the local primary school, something Miss Sawyer described as creating an
emotional connection between the community and the brigade.
Under the EBA, however, Miss Sawyer's ability to deliver community education
programs will be restricted:
As per clause 17 of the EBA, our capacity to deliver
community education will be prevented or restricted, despite us holding various
qualifications in community education. I hold the Fire Safe Kids presenter
qualification and burns table presenter qualification, which include nationally
recognised units in public safety. We are experts in our own community and
their needs. In line with the vision of the CFA, we take the community with us.
Being a small rural community, I fail to see how our community will be better
off with community education external to our local brigade. As a result, I
believe that our community will be left behind as we lose the connections that
we have made with them over the years.
Scope of the bill
Under the bill, a designated emergency management body is defined as:
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
the body is a recognised emergency
management body that is prescribed by the regulations for the purposes of this
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.
Submitters in support of the amendments argued that the bill was
necessary to ensure that the rights of paid firefighters and volunteers were
equally represented. This view was articulated by Mr Ford, CEO of VFBV:
I try to imagine if the [amended] Fair Work Act had already
been in place months ago. It would have laid a clearer path for everyone to
work through, there would have been a fair playing field where volunteers had a
voice on matters affecting them and there would have been a clear process to
deal with differences ... in our mind the fix being proposed is pretty simple. It
is innately fair, it is consistent with what everyone is either saying they
want or claiming to be already reflected in the EBA.
A number of volunteer firefighters also expressed strong support for the
bill as drafted. For example, Mr Bill Stockdale, Secretary of Tatura fire
The district council strongly supports the passing of the
Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 as a
safeguard for all rights of all volunteers in carrying out their vital
community safety role unfettered by obstacles placed as a result of industrial
Mrs Mary-Anne Egan, volunteer firefighter, Wangaratta district, also
argued forcefully in support of the bill, suggesting that it would:
...give volunteer bodies a place at the table, in Victoria,
where volunteer management and ops belong. Your bill offers us hope. It offers
hope that the industrial agreements will not interfere with legislation which
protects the rights of volunteers who give their services freely each and every
day and night of the year if needed.
However, some inquiry participants were concerned about the scope of the
bill, arguing that there was uncertainty about the extent of its application.
For example, the Victorian Government criticised the scope of the bill,
suggesting that it:
...creates significant uncertainties. A number of clauses of
the Bill are ambiguous and ill-defined, and on one reading, could apply to a
wide range of matters in agreements. This is likely to lead to uncertainty for
parties negotiating enterprise agreements as to which clauses may or may not be
unlawful and result in delay in the bargaining process and lengthy and
Ryan Carlisle Thomas (RCT) Lawyers argued that while the Explanatory
Memorandum states that the bill is intended to apply only to 'volunteer-based
emergency management bodies', the bill's scope seems much wider because it
refers to a 'State Emergency Service of a State or Territory (however
The Police Federation of Australia (Police Federation) pointed out that only
Victoria Police and the Australian Federal Police currently operate under the FW
Act and that all other jurisdictions except the Northern Territory (NT) operate
under various state acts.
The Police Federation was greatly concerned that the bill would permit
an emergency management body to be declared as such by regulation and that this
could reduce the use of volunteers by police forces. The Police Federation
observed that both the Australian Federal Police and Victorian Police use
volunteers in a limited number of non-operational roles. The Police Federation
noted that permitting volunteer bodies to make submissions to the FWC would be
likely 'to hinder and restrict police forces from encouraging the use of
volunteers'. Consequently, the Police Federation submitted that the bill should
be amended to 'expressly state that the Commonwealth cannot declare a police
force of any Australian jurisdiction' to be an emergency management body.
The Ambulance Employees Australia Victoria (AEAV) also expressed concern
over the 'ambiguous' scope of the bill:
The Bill provides no guidance, criteria or considerations as
to which emergency service organisations will be covered by the legislation.
The AEAV can only conclude that Ambulance Victoria will be considered a 'designated
emergency management body'. The AEAV, as the Ambulance Union within Victoria,
objects in the strongest terms to having individuals not covered by our
enterprise agreements intervening in the setting of terms and conditions of its
The perceived uncertain scope was also an issue for the Australian
Nursing and Midwifery Federation (ANMF) Victorian Branch. The ANMF highlighted
its concern that, if enacted, the bill would impact on the many volunteers
within the Victorian health service:
...Victorian hospitals and health services would meet the
description of a designated emergency management body given their role as part
of the State Health Emergency Response Plan under which state health command
can be implemented. Of course many hospitals have volunteers and thus the Bill
might impact on a huge area of volunteerism and on employers' involved in
enterprise bargaining with many thousands of employees. Similarly public
hospital emergency departments may be caught by the definition simply because
of their role in the provision of co-ordinated state emergency health services.
The ANMF (National) also observed that it was unclear about the type of
organisations that would be affected by the bill:
Of specific concern to the ANMF is that several elements of
the definition of 'recognised emergency management body' could easily apply to
various organisations in the health industry which employ nurses and midwives
and engage volunteers, for example public hospitals, Australian Red Cross, etc.
The use of regulations to include or exclude organisations from being
impacted by the bill was a second area of concern. For example the ANMF
Victorian Branch said:
The reliance on regulations to determine the application of
the Bill, if passed, underscores the fact that it is selective and targeted at
the CFA but in an attempt to appear to be of more general application the Bill
has created uncertainty. The necessity of having Regulations to include, and
then also exclude, agencies from the scope of the Bill underscores its
uncertain reach. Of course this uncertainty is the result of the highly
political motivation of the Bill itself.
The Australian Council of Trade Unions (ACTU) also expressed unease over
the reliance on regulation to clarify the application of the bill:
... the scope of agreements it [the bill] applies to is
uncertain and is subject to change by mere regulation. The cumulative effect of
section 109(3)(d) of the Fair Work Act and the proposed section 195A(4) is that
the only requirement confining the scope of operation of the Bill is that the
relevant employer is a body, or part of body, that is established for a public
purpose by or under a law of the Commonwealth, a State or Territory. The
remainder is entirely left up to regulations and thereby lacks any effective
Parliamentary scrutiny. Beyond the current discussion about the CFA, we simply
do not know which public instrumentalities will be declared to be covered by
In response to concerns about the scope of the bill, the Commonwealth
Department of Employment advised the committee that the bill was 'deliberately
narrow in its application' and would only cover certain public sector
organisations in Victoria, the ACT and the Northern Territory. In other states,
these bodies are covered by state workplace relations law, and the Commonwealth
does not have constitutional power to cover them unless they are constitutional
The Department also specifically addressed the concerns raised by the
Police Federation and the Australian Nursing and Midwifery Federation (ANMF)
with respect to the scope of the bill:
To be clear, police forces and hospital workers are not
covered by the legislation. Neither fall within the meaning of 'designated
emergency management bodies', to which the amendments will apply, as set out at
proposed section 195A(4)(a)(i), as they are not firefighting or State Emergency
Service bodies. There is no intention to prescribe these bodies by regulation.
The committee notes the concerns expressed by employee organisations including
the police and health services unions that the bill may have unintended
consequences for their operational practices and use of volunteers. The
committee also notes the unease expressed over the use of regulation to clarify
the application of the bill.
The committee is reassured that the Department of Employment has drafted
the bill to be deliberately narrow in its application, and is convinced that
neither police forces nor hospital services fall within the meaning of 'designated
emergency management bodies'.
Nevertheless, in light of the concerns expressed, the committee believes
the government should proceed cautiously and with full consultation before
considering any future extension of the bill through regulation.
Entitlement for volunteer bodies to make submissions
The Victoria Emergency Service Association (VESA) considered that
'volunteers currently have few rights, are not recognised for their
professional expertise, and are not given the respect they warrant for the work
they undertake for the community'. VESA observed that, in many instances, SES
volunteers have to accept directives through a chain of command and that
volunteers may be subject to unfair treatment from paid employees.
Consequently, VESA saw the provision for volunteer representative bodies
to appear before the FWC as a 'significant step towards recognising the rights
The inability of affected volunteer representative bodies to make
submissions to the FWC on matters impacting their members was a matter of
significant concern for the Volunteer Fire Brigades Victoria (VFBV), as
outlined by Mr Ford:
We find it hard to understand that an EBA can be adopted by
the FWC under the current Commonwealth Fair Work Act with a raft of clauses that
reach beyond the intended realm of the Fair Work Act and beyond the realm of
employees' pay and conditions into areas that clearly impact on volunteers.
Then when volunteers say, 'Hang on, how about a fair go here for volunteers?
Hang on, you've gone too far. Could you leave those things that are beyond the
pay and conditions out of the EBA and let them be dealt with by due process
consistent with the CFA Act but also gives a voice to the volunteers,' we are
told that we are sticking our nose into someone else's business. We are told
that now these things are in the Fair Work process, even though they impact on
volunteers in our own organisation built by volunteers on issues that directly
impact on volunteers and on volunteer rights, we have no rights to have a say
or for volunteer rights to be fairly considered.
Mr Ford concluded that VFBV was 'not asking for anything other than
respect and effective protection of volunteers' roles and rights'.
A number of volunteer firefighters expressed concern that volunteer
organisations have not been permitted to make submissions to the FWC on the
impact of matters affecting their members. For example, Mr Robert Cooke
highlighted the unfairness of the situation:
When the EBA went to the Fair Work Commission, they could
only hear one side of the argument. The legislation that is there precluded
them from hearing from the CFA, because it is a volunteer organisation, and
that is what we need changed. This EBA needs to be annulled, and they need to
start again. Then we will get back to an even playing field.
If I was the commissioner and that was put in front of me, I
would go to the government and say, 'The law isn't right. I can only hear one
side of the argument. I cannot hear the other side of it and I am called a fair
work commissioner. How is that fair?'
Dr Morehead advised that the bill addresses these concerns by enabling
certain volunteer bodies to make submissions in matters before the FWC that
relate to enterprise agreements and workplace determinations, and that affect
or could affect the volunteers of a designated emergency management body.
Dr Morehead explained that the reason for including this right in the
bill was to ensure that volunteer organisations can:
... have a say and present their views and concerns in matters
before the FWC about, for example, any clause in a proposed enterprise
agreement which could potentially impact on volunteers. Previously, CFA
volunteers tried to be represented at the FWC conciliation proceedings in May
2016 so they could put their concerns on record. However, Commissioner Roe
determined that the volunteers did not have sufficient standing to be heard.
This amendment ensures that volunteers will be able to make submissions in the
RCT Lawyers observed that if a volunteer association currently had a
proper interest in a matter arising from the FWC it might apply to be heard.
However, RCT Lawyers argued that inserting a statutory entitlement to make a
submission was flawed because it removed the FWC's discretion on who to hear
from, required the FWC and bargaining representatives 'to address submissions
made regardless of merit and proper interest', provided 'for a stranger to the
bargaining process to intrude into the bargaining between the industrial
parties', and would add complexity to an enterprise bargaining process.
Similarly, Professor Stewart noted that the FWC currently has the
'general discretion' to hear from affected parties such as volunteer organisations
and observed that the creation of a statutory right for volunteer organisations
to be heard '...goes beyond a right that is simply not available to anyone else'.
Professor Stewart emphasised the unusualness of granting a statutory
right to be heard to volunteer organisations when that same right was not
afforded to any other stakeholder, including the relevant minister:
What this bill would do is remove any discretion from the FWC
but only in relation to volunteer organisations, so the Victorian government
would not have a right to have a say, the federal minister would not have a
right, volunteers would not have a right but organisations, as long as they are
incorporated or mentioned in the regulations, would.
The ACTU described the provision of statutory right to be heard as
contending that there are a number of problems with the proposal:
These provisions are curious primarily because they are not
in any way linked or limited to the issue of the presence or otherwise of
'objectionable emergency management terms' in agreements or workplace
determinations. They effectively require the FWC to consider submissions that
may extend to matters that are entirely irrelevant to the questions at issue in
a given matter before the Commission – for example a volunteer association's
views on whether or not a majority support determination ought to be issued.
This may create unnecessary delay and cost.
Constitutionality of the bill
Some submitters questioned the basis on which the Commonwealth was able
to legislate in an area that restricted the ability of a state government to
conclude an industrial agreement with its employees.
The Prime Minister acknowledged that while the states are responsible on
a constitutional and practical basis for the provision of firefighting
services, the state government of Victoria had 'abdicated its authority on this
matter and capitulated to the Union'.
RCT Lawyers noted that the bill imposed restrictions on a state agency's
dealings with employees by removing agency discretion and the right to
determine for itself appropriate arrangements.
RCT Lawyers also noted that the Explanatory Memorandum refers to the
Commonwealth's power to legislate being derived from the states' referral to
the Commonwealth of 'workplace relations matters' in section 51(xxxvii) of the
Constitution. In the case of Victoria the referral is given effect by the Fair
Work (Commonwealth Powers) Act 2009 (Vic) and Division 2A of Part 1-3 of
the FW Act. However, given the referral of legislative power relates to the
terms and conditions of employment contained in enterprise level agreements,
RCT Lawyers noted it was doubtful whether the referral of legislative power
would be supported in circumstances where the objective of the bill was not
directed to employees but rather was to protect the role of emergency service
Professor Andrew Stewart began by observing that the provisions of the
bill could only come into play in the dispute between the CFA and the UFU if
three conditions were satisfied, namely that the EBA:
had the support of both the CFA
board and a majority of the CFA employees to be covered by the agreement;
had been found by the Victorian
Supreme Court to be consistent with the legislation governing the CFA (since
otherwise the Court would presumably not have lifted the injunction that at the
time of writing is restraining the CFA Board from concluding any agreement);
met the other requirements of the
FW Act, including that the agreement not contain terms that discriminate
against employees on the basis of gender, family or caring responsibilities,
etc. (see FW Act ss 194(a), 195).
With respect to the second dot point above, Professor Stewart therefore
noted that the question of whether an EBA contravenes elements of state law is
a matter 'that not only can be put before a state court but has been put before
a state court' and that the CFA Board can only put the proposed EBA to its
employees 'if the Victorian Supreme Court is satisfied that the CFA board can
lawfully agree to the agreement'.
On the question of constitutionality of the bill, Professor Stewart
observed that there was an argument the bill was unconstitutional:
The High Court has said in a series of decisions that it is
perfectly okay for federal law to regulate the wages and employment conditions
of state government workers or state government agency workers but there are
limits. One of the limits articulated in a 1995 decision involving the
Australian Education Union and also the Victorian government, as it happens,
was that the Commonwealth cannot tell a state who or how many people it employs
to do work. There is an argument that would be exactly what the Commonwealth
would be doing with this legislation; it would be having a federal body, the
Fair Work Commission, in effect overwriting the decisions of a state government
body like the CFA when it decides how it wants to structure its relations with
both its employees and its volunteers.
Mr Jeremy O'Sullivan, Chief Counsel Workplace Relations Legal at the
Commonwealth Department of Employment (the Department) refuted the proposition
that the prospects of a constitutional challenge were high.
He advised the committee that the government had legal advice from the
Australian Government Solicitor that the bill was 'within Commonwealth
constitutional power'. Mr O'Sullivan also pointed out that in drafting the bill
the Department had 'carefully considered the implied constitutional limits on
the power of the Commonwealth to legislate with respect to state public sector
The committee notes that the potential constitutionality of the bill has
been raised by some submitters. The committee heard from the Commonwealth
Department of Employment that the Department had given due consideration to the
implied constitutional limits on the power of the Commonwealth to legislate
with respect to state public sector employment. Furthermore, the committee heard
that the Department had expert legal advice from the Australian Government
Solicitor that the bill was within power. On the basis of the evidence provided
by the Department of Employment, the committee is therefore persuaded that the
bill is constitutionally valid.
Overall committee view
It is abundantly clear from the evidence presented to the committee in
Macedon that both volunteer and career firefighters display an incredible level
of professionalism and commitment in carrying out their roles. On behalf of the
wider community, the committee commends both volunteer and career firefighters
and thanks them for their dedication to keep the community safe.
With these remarks in mind, the committee considers it highly
regrettable that the dispute in Victoria has driven a wedge between volunteer
and career firefighters when both parties are integral to firefighting efforts
The committee acknowledges the legitimate safety concerns raised by
career firefighters at the integrated stations arising from incidents such as
the Fiskville Training Centre over which the CFA had responsibility. The
committee also heard from career firefighters that there had been a distinct
unwillingness over many years by the CFA to negotiate in good faith over safety
concerns and the development of an agreed set of safety and Standard Operating
Procedures (SOPs). In this regard, the committee notes that the inquiry
currently being conducted by the Environment and Planning Committee of the
Victorian Parliament into Fire Season Preparedness has also heard evidence of a
poor culture at the CFA and an inability by the CFA to make substantive
progress on important issues.
Nevertheless, from the evidence presented to the committee, it is clear
that many of the clauses in the proposed EBA are best characterised as SOPs.
The committee heard from career firefighters at the Macedon hearing that the
EBA may not be the most appropriate place for SOPs. The committee is firmly of
the view that a preferable outcome would be to have a stand-alone document that
contained an agreed set of SOPs.
The committee further notes that the key areas of contention in the EBA
for both the volunteers and the former CFA board and management do not relate
to wages, but rather relate to those clauses in the EBA that are best
characterised as SOPs.
The committee is therefore of the view that it is incumbent on both the
CFA management and board to redouble its efforts to successfully develop a set
of SOPs that are agreeable to both career and volunteer firefighters. The
committee is firmly of the view that these SOPs should sit outside of any EBA
negotiated between the UFU and CFA.
Given the above, and while cognisant of the frustration faced by career firefighters,
and aware of the overarching importance of firefighter and community safety,
the committee nevertheless considers that the UFU has pursued a highly
inappropriate strategy by inserting clauses into an EBA that in effect amount
to SOPs. This has proven to be highly counter-productive and has contributed
enormously to the divisive nature of the dispute.
At this point, it is appropriate to acknowledge that the CFA Act places
particular responsibilities on the board and management of the CFA. Furthermore,
the CFA Act also accords explicit statutory recognition of the fact 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.
The committee further recognises that the Volunteer Charter is
acknowledged by the CFA Act and is a statement of the commitment and principles
that apply to the relationship between the Government of Victoria, the CFA, and
its volunteers. The CFA Act recognises that the Volunteer Charter requires,
amongst other things, that the Government of Victoria and the CFA commit to
consulting with the VFBV on behalf of volunteer officers and members on any
matter that might reasonably be expected to affect them.
The uncompromising insistence by the UFU leadership that the CFA agree
to a raft of clauses in the EBA that would be better dealt with elsewhere led
to the resignations of the CFA Chief Executive Officer, the CFA Chief [Fire]
Officer, the Minister for Emergency Services, and the removal of the entire CFA
In effect, the insistence that the CFA agree to the UFU position on the
EBA placed the former CFA board, management and Minister for Emergency Services
in an invidious position. This occurred because the proposed EBA would
adversely affect how the CFA manages its large contingent of volunteer
firefighters and would be inconsistent with the current Victorian emergency
management legislation under which the CFA is required to operate. The proposed
EBA would therefore place the CFA in breach of its statutory obligations.
Moreover, the terms of the proposed EBA would have a significant adverse
impact on CFA volunteers by, amongst other things, restricting the types of
work ordinarily performed by volunteer firefighters. In addition, the
requirement under the proposed EBA for the CFA to reach agreement with the UFU
over a whole range of clauses, including many which directly affect volunteers
and how the CFA manages its volunteer workforce, effectively excludes
volunteers from negotiations, the results of which may have an adverse impact
on them. The proposed EBA would therefore contravene the provisions of the Volunteers
Charter that are acknowledged by the CFA Act.
Furthermore, the attempted resolution of the dispute by the FWC was, by
the very nature of what the FWC is required to take notice of, incapable of
considering both the legitimate concerns of affected stakeholders such as the
overwhelmingly volunteer workforce of the CFA as well as the wider
jurisdictional implications of the EBA for the CFA Act. In effect, the nature
of the FWC as it currently operates effectively excludes CFA volunteers from
having a voice in a forum where their particular interests are being affected.
This is clearly unacceptable and will inevitably have devastating consequences
for the continued participation of volunteers in the CFA.
It is therefore clear to the committee that the proposed EBA threatens
the long-standing relationship between the CFA and the community. This would be
a tragic outcome for what has been a world-renowned firefighting organisation
that has, thus far, successfully integrated a large and devoted volunteer
workforce with a small but dedicated contingent of career firefighters.
Furthermore, the unravelling of the enormous volunteer commitment to the CFA would
undermine the safety of large swathes of Victoria.
It is against this backdrop that the bill must be considered. Certainly,
the committee considers that it would be preferable for the EBA to exclude
clauses that are more accurately characterised as SOPs. Furthermore, the CFA,
the UFU, and the VFBV should engage in good faith negotiations to develop a
separate document that sets out the SOPs for the CFA with a view to maximising
firefighter and community safety.
Nevertheless, the committee must consider the circumstances before it.
Firstly, the exclusion of volunteers from an EBA process that intimately
affects them is at the heart of the firefighting dispute in Victoria. The bill
corrects this anomaly by providing relevant volunteer bodies with a right to
make a submission to the FWC on matters that affect the volunteers that they
Secondly, the proposed EBA between the CFA and the UFU will undermine
the ability of the CFA to properly manage its large and invaluable volunteer
contingent. The bill addresses these perverse outcomes by preventing an EBA
from including any term that would impact the capacity of emergency management
bodies to properly manage their volunteer operations (including requiring the
body to consult, or reach agreement with, any other person or body, or
restricting or limiting the body's ability to recognise, value, respect or
promote the contribution of its volunteers).
Thirdly, if approved, the EBA would leave the CFA in breach of its
statutory obligations under Victorian law, namely the CFA Act. The bill
addresses this outcome by precluding an EBA from including any terms that would
override the provisions of state legislation governing emergency management
bodies. The bill clarifies this position in a new note which reads 'a term of
an enterprise agreement could be an unlawful term and of no effect if it
requires or permits a designated emergency management body to act other than in
accordance with a State or Territory law and this affects or could affect the
Finally, the bill will render ineffective any terms such as those
outlined above in an EBA, regardless of whether the agreement comes into effect
before or after the bill is passed. This offers protection to volunteers who
may suffer adverse consequences from an EBA that has already been agreed, but
it still allows the EBA to otherwise continue to operate.
Having considered all the evidence before it, the committee is persuaded
that the bill is a reasonable, necessary and proportionate response to the
current anomalies in the Fair Work Act 2009 and urges the Senate to pass
The committee recommends that the Senate pass the bill.
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