Non-government Senators summarise the key aspects of this
inquiry as follows:
As a result of 3 years of collective bargaining, and following
recommendations from the Fair Work Commission, agreement has been reached
between the Board of the Country Fire Authority (CFA) and the United
Firefighters Union of Australia (UFU) on the Operational Staff Enterprise
Agreement 2016 (EBA).
Clause 7A of the agreement makes it clear that the role of
volunteers is not altered by the agreement. Nothing in the agreement shall
prevent volunteers in the CFA from providing the services normally provided by
such volunteers without remuneration.
The Volunteer Fire Brigades Victoria (VFBV) have claimed that the
agreement affects volunteers and as such breaches the Country Fire Authority
Act 1958 (CFA Act) and the Volunteers Charter that comprise part of the
The VFBV has referred the agreement to the Supreme Court of
Victoria. The VFBV chief executive Andrew Ford said at the time 'the issue will
now be dealt with where it should be dealt with: in a fair and transparent
process through the Supreme Court'.
Prime Minister Malcolm Turnbull, on 22 August 2016 in the middle
of the election campaign, announced legislation to change the Fair Work Act 2009
(Fair Work Act) to 'protect' CFA volunteers from the firefighters union.
The agreement became a political football with the Prime
Minister, government ministers, and coalition backbenchers misrepresenting the
implications and effects of the agreement.
Expert evidence from Professor Andrew Stewart to the Senate Education
and Employment Legislation Committee (the committee) inquiry raised a number of
significant issues arising from the bill.
Professor Stewart told the committee that an EBA made under the
Fair Work Act is 'subject to, and thus cannot override, the provisions of
certain state (or territory) laws' including matters relating to provision of
essential services or to situations of emergency including directions to
perform work (including to perform work at a particular time or place, or in a
particular way), and directions not to perform work (including not to perform
work at a particular time or place or in a particular way).
Professor Stewart found it 'hard to identify many specific
examples of the current or proposed enterprise agreement being used to prevent
the CFA from discharging its statutory responsibilities'.
Professor Stewart stated that 'if a Chief Officer gives
directions, or establishes standard operating procedures [under the CFA Act],
as to the chain of command for the performance of emergency work by
firefighters, those directions or procedures must prevail over anything to the
contrary in an enterprise agreement'.
Professor Stewart raised a number of problems in relation to
interpretation issues associated with the bill, including one interpretation
that 'any attempt to reserve particular work (including management) for paid
employees would be unlawful'.
Professor Stewart raised issues of constitutionality including
that 'the Commonwealth cannot legislate in such a way as to "significantly
impair, curtail or weaken" the capacity of the states to function as
autonomous and independent entities.'
Professor Stewart concluded that the risk inherent in the bill is
that 'the scope for disputation, uncertainty, delay and expense is
The CFA Chief [Fire] Officer Mr Steve Warrington was unequivocal
in his view that the proposed EBA would not impact the CFA's firefighting
abilities. He stated that 'I am really confident that, during a firefight,
operations will not be compromised.'
The Chief Officer also indicated 'the instrument provided to me,
in writing from the [CFA Board] Chair, gives me assurances that the powers of
the Chief Officer are not being compromised by this EBA, and I can continue to
exercise those powers with certainty and clarification.'
On the evidence before the committee the bill would simply add
layers of uncertainty, complexity and delay to any future bargaining process.
Bargaining would become even more complex, with the capacity for legal appeals
to the High Court including on issues of constitutionality. Volunteers will not
be affected by the proposed EBA and the security and well-being of Victorians
will not be compromised. However interminable legal arguments arising from the
bill would exacerbate division and divert resources from firefighting. On this
basis and on the evidence before the committee the bill should not be passed.
In 2011, the Senate Education and Employment Legislation Committee (the
committee) recognised the vital and dangerous role performed by firefighters in
ensuring community safety. The unanimous conclusion of that committee's report
The community holds a deep respect and gratitude for those
who serve to protect and assist. If we are honest, however, along with this
respect and gratitude comes a generous dose of expectation. We expect
firefighters to come to our assistance when our homes, schools, hospitals and
businesses are ablaze. We expect that a firefighter will enter a burning
building when every human instinct tells us to leave. We expect they will
search for those trapped inside and bring them out alive. We expect them to do
what they can to minimise loss of life and damage to property. While everyone
else is fleeing danger, it is the firefighter's duty to tackle it head-on, to
enter an extreme and dangerous environment, armed with the best protective gear
It is a duty firefighters take seriously, aware of the
inherent risks to their own health and safety. This awareness on their part
does not mitigate the community's responsibility towards them.
And yet a mere five years later, the majority report in this inquiry has
failed to recognise or counter the profound misinformation that has been
propagated about the proposed enterprise bargaining agreement (EBA) between the
Victorian Country Fire Authority (CFA) and the United Firefighters Union (UFU),
or indeed to condemn the gross politicisation of the EBA dispute and the consequent
and potentially irreparable damage that has been done to the reputation of the
CFA, career firefighters, and the morale of the firefighting community more
Senior representatives of the CFA were very clear in their evidence that
the dispute is causing enormous damage to the organisation and that they want to
resolve the dispute. Indeed, as the evidence later in this report makes clear, the
CFA had come to an agreement with the UFU on the EBA, and the Board had
instructed the Chief Executive Officer to put the EBA to the CFA's employees.
The resolution of the dispute is currently stalled by the injunction taken out
in the Supreme Court of Victoria by the Volunteer Fire Brigades Victoria (VFBV)
to prevent the CFA from putting the EBA to its employees.
Furthermore, the Coalition government has unnecessarily inflamed the
dispute for its own political ends by bringing forward a bill that is not only
an unnecessary and unwarranted intrusion into state matters, but a bill that
will serve to deepen an already unfortunate divide between career and some volunteer
firefighters predominately from rural brigades that are not deployed with
career firefighters. It will also extend a dispute that had effectively been
resolved by the CFA and the UFU.
Indeed, Professor Andrew Stewart, an expert in industrial relations law
from the University of Adelaide, told the committee that the bill was a recipe
for increased complexity, uncertainty, and disputation. Furthermore, he was of
the view that the bill would require the Fair Work Commission to move into the
highly problematic area of attempting to form judgments about how an
organisation such as the CFA should construct a 'proper' balance between paid
and volunteer firefighters. Moreover, the bill would require the Fair Work
Commission to determine matters that properly reside within the authority of
the CFA and the state government of Victoria to resolve.
This dissenting report covers some of the key issues that arose during
the inquiry. But first, it makes some comments that are pertinent to the
conduct and timeframe of the inquiry.
This inquiry, although premised on unnecessary legislation, could have
been an opportunity to bring transparency to the EBA process. The committee
could have used this inquiry to draw attention to the reputational damage that
has been inflicted on the CFA and career firefighters by misinformation and
Instead, the committee's inquiry has been flawed. The firefighting
dispute in Victoria is both complex and contentious. Yet the timeframe set for
the inquiry of just over one month was patently unreasonable. Those interested
in making submissions had a mere 7 business days to do so. And the committee's
hearings, conducted in Macedon and Melbourne, were held so close to the date
for reporting as to give the committee little time to adequately consider the
The committee spoke to 65 witnesses in two days of hearings, with the
majority of witnesses appearing at the hearing in Macedon hearing. The notion
that these two hearings alone allowed for a full and fair presentation of
evidence is scarcely tenable.
Furthermore, a large number of senators from across the political
spectrum expressed considerable interest in this inquiry. In total 17 Senators
attended the hearings across the two public hearings. The number of senators
attending was a clear and welcome indication of this interest but, because of
the packed hearing schedules, the practical outcome of the increased interest
was a reduction in the time available for senators to effectively question witnesses.
That said, non-government senators join with the rest of the committee
in thanking all those who contributed to the inquiry and particularly those
witnesses who travelled a considerable distance to participate in the hearings.
The EBA between the CFA and the UFU has been the subject of gross
politicisation. This politicisation has resulted in:
the unfair vilification of career firefighters throughout the
the development of misconceptions within the volunteer
firefighting ranks about the impact of the proposed EBA.
In addition, the politicisation of the entire process is amply demonstrated
by the CFA hiring a renowned Chicago-based 'union busting' company to provide 'strategic'
advice on the dispute and to provide options to weaken the firefighters
bargaining position by, according to media reports, introducing individual
Vilification of career firefighters
A major concern throughout the bargaining process—and indeed throughout
the inquiry—has been the politicisation of the issues at hand. Perhaps the most
unfortunate aspect of this politicisation has been the vilification of career
firefighters and the immeasurable trauma inflicted on career firefighters and
their families as a result of wilful misrepresentation during the dispute,
particularly in certain segments of the media.
Mr Thistlethwaite, a career firefighter from Greenvale, told the
committee of his personal experience of abuse:
I can tell you about a personal experience of mine. I was playing
lawn bowls, and there was a person playing next to me who knew I was a career
firefighter. He came up to me and he started abusing me, using the language
that you saw in that letter [a volunteers’ fund raising flyer], calling me a
thug, a scumbag and a mercenary taking money from volunteers. That is the sort
of behaviour that I have had to deal with, that other career firefighters have
had to deal with and that my family has had to deal with.
The catalogue of abuse suffered by career firefighters was confirmed in
evidence by Mr Peter Marshall, National Secretary of the UFU. He told the
committee that the EBA dispute had severely damaged the reputation of career
[Career firefighters'] reputation has been sorely damaged.
Their children have suffered at school as a result of this irresponsible public
media campaign and, now, political campaign. Most of these articles were run
during the federal election. A career firefighter actually collecting money for
volunteers was handed a bullet on one occasion. Children at schools have been
abused and harangued because of this particular campaign. As I say, it is based
on many misleading statements and blatant untruths. I do not see a change since
2011 when the Australian parliament recognised career firefighters as people
who actually put their lives on the line and forego quantity and quality of
life in the pursuit of protecting others, but who are being denigrated now...
That damage will take a long time to repair. It is unfair on these people who,
as we speak, may be going into a normal house fire that is around 1400 degrees
Celsius. They may actually have to come in here and extract us out of this
building, knowing that, perhaps, they will be injured, or even worse, in the
A document tabled by Mr Marshall showed that the dispute has been front
page news in the Herald Sun on numerous occasions since June 2015, with
headlines such as 'Union Chief Bullied Me', 'Fire Storm' and 'Hands Off Our
Mr Marshall highlighted the frequency of the coverage as well as its
negative impact on career firefighters:
...what has, essentially, has been the front page of the Herald
Sun since June to April 2015. As you can see, there are 19 front pages
alone in relation to this enterprise agreement claim and 33 front pages since
the 27 April. Chair, the point I raise to you is this: career firefighters
have been labelled as thugs, bullies, misogynists based on untrue documents
that have been released to the press... Their reputation has been sorely damaged.
Mr Marshall said that 'it is so easy to slur people, as the Herald
Sun has done over 29 articles.'
He drew the committee's attention to the fact that this vilification has had a
significant detrimental impact not just on the firefighters themselves, but
also on their partners and children:
...I have never seen something affect them as much as that [Herald
Sun campaign]. That actually translated into their homes, their children
being abused, their being heckled down the street as a result of that
irresponsible advertising campaign. I can give you letters from wives and I can
give you evidence from members who have been traumatically damaged, not for any
reason other than that they are a professional person who puts their life on
the line to look after the community. One minute they are up here; the next
minute they are thugs, misogynists and a whole range of other things that were
actually being said in those articles. It has had a detrimental effect I have
never seen in 31 years.
However, Mr Marshall also pointed out that the involvement of the
federal government in the dispute had exacerbated the harm done to career
If there had not been a federal election, this dispute would
have been resolved and would have been confined to the barriers of Victoria.
This became a political football in the federal election, and there were many
untruths said about things, as you can see by the acceleration of those
articles. We do not say this lightly, but the firefighters dispute and the
allegations against the union and its members got more coverage than the Iraq
war, and we find that reprehensible given these people save lives on a daily
basis. We are not denigrating the military people; we have the highest respect
for them. There are some terrible things that happen in the world, but if you
have a look at that one would think that career firefighters in Victoria are
the devil incarnate.
Misconceptions over the proposed
It is clear from the evidence presented to the committee that
significant misconceptions exist over the proposed EBA and its application. Mr
Marshall suggested that this confusion was exacerbated by numerous inaccurate
media reports, particularly in the Herald Sun, that implied the UFU was
seeking to take over the CFA and that 'the information and the media saturation
had got to the point where people did not know what to believe'.
An example of the above was Minister Cash's opinion piece in the Herald
Sun on 22 August 2016, where she claimed that seven paid firefighters had
to be present before CFA personnel are able to be deployed to a fire and that
paid firefighters are to report only to other paid firefighters.
Given this was a considered opinion piece such blatant misrepresentation
is objectionable and designed to create mistrust and division between
volunteers and career firefighters and diminish the standing of career
Mr Marshall contended that once volunteers closely examined the proposed
EBA, many of the misconceptions and fears over its effect were allayed:
When you sit down with some volunteers—I am not saying all,
because in all groups there are people you will never sway—and you take them
through the actual document and all the clauses, they say, 'I did not know
that; I was not told that.' For example, the allegation which was on the front
page of the Herald Sun and also on the VFBV's website that for every
fire in country Victoria you will have to wait until seven career firefighters
turn up was just not true, and the agreement never said that. So when we take
people through that they say, 'We did not know that'.
The perpetuation of misinformation was also identified by on-the-ground
career and volunteer firefighters as being a major challenge, especially for
those volunteers who did not work at an integrated station. Mr Raj Faour, a volunteer
firefighter with an integrated brigade at Hallam, reflected positively on the
camaraderie that existed between the volunteer and career firefighters at his
He expressed sadness at how the bargaining process had unfolded, and noted that
volunteers working at integrated stations had benefitted greatly from being
able to clarify information:
So it saddens me to see this situation turning into a huge
political game. There is a lot of misinformation that is being pushed onto many
volunteers out there who do not have the exposure to these integrated brigades
or the firefighters. If I was in doubt of anything, I would always go up and I
would research it. I would ask, whether it is a UFU delegate at our brigade,
whether it is Steve, whether it is another friend of mine who might be up
Similarly, Mr Luke Symeoy, a volunteer firefighter with an integrated
brigade at Craigieburn observed that once the correct information was shared,
volunteers in his brigade had concluded that the proposed EBA would have
positive benefits for the community:
Right across the board there has been a lot of
misinformation. People do not know what the truth is. People have not had the
opportunity to find out what the truth is because of being in remote areas and
all that sort of stuff and not being able to get to an integrated station and
talk to the guys that have been there. We have been lucky enough to have the
opportunity to ask questions and be told what the EBA is all about. By doing
that, the brigade has come to the conclusion that the EBA has got nothing to do
with volunteers. Basically what is going to come out of this is: we are going
to be benefited better; the community is going to be benefited better.
Mr Symeoy concluded forcefully on the critical importance of
disseminating accurate information to resolve the situation as soon as possible:
Everyone gets misinformed. Everyone starts to worry that
someone is going to come into their catchment and takeover and push that person
aside. It is not going to happen. This has been going on for a long time...This
is where we need to get this over the line and we need to fix it now because,
unfortunately, people's lives, other than the firefighters, their families and
also everybody else, are going to disrepute here and it is not fair on anyone.
We need to fix this. We need to get the right information out to everybody.
CFA's engagement of a 'union
The third area that highlights the politicisation of the enterprise
bargaining process is the engagement by the former CFA Executive of Seyfarth
Shaw, a renowned Chicago-based union busting company, for advice on the
enterprise bargaining process. On its face, the former CFA Executive's
engagement of Seyfarth Shaw demonstrates an earlier lack of commitment in the
CFA's approach to resolving the stalled bargaining process.
Ms Lucinda Nolan, the former Chief Executive Officer (CEO) of the CFA, explained
that she engaged Seyfarth Shaw to get strategic advice about the enterprise
bargaining process and the options available to the CFA:
This was about where we were at. It was advice from the
players around that table about how we should best proceed as the CFA. I wanted
to get independent advice to make sure that I was fully informed about what all
of our options were that may not have come out within those discussions. That
is why I used Seyfarth Shaw.
Ms Nolan advised that Seyfarth Shaw was selected on the basis of its
expertise in matters of complex enterprise bargaining agreements, rather than
anything to do with the firms' reputations:
Senator CAMERON: Wouldn't you take steps, if you are spending
public money, to know some basis of the company that you are spending the
public money on?
Ms Nolan: I did, and the people that recommended them said
that they were experienced in complex EBs.
Senator CAMERON: So that was all you were told?
Ms Nolan: That is all I can remember at this stage.
Senator CAMERON: All you can remember?
Ms Nolan: There was certainly nothing about union busting. It
was around a legal firm that had dealt with significantly complex EBs, which
was what I was looking for in terms of this.
Ms Nolan denied knowing of the firms 'union busting' reputation until
her appearance before the Victorian Parliament's inquiry into Fire Season
Senator MARSHALL: You engaged them because you knew they were
specialists in what we call union busting?
Ms Nolan: No, not at all.
Senator MARSHALL: You didn't?
Ms Nolan: I did not know that until I went to the state
Ms Nolan provided further clarification as to her own knowledge of the
firm's reputation and her reason for engaging them:
I am still not aware of their background—only the questions I
was asked at the state inquiry. My understanding was that we asked around—I
cannot remember, to be honest, who actually put them forward, but a number of
names were put forward—who could provide very strong strategic advice around
all of our options that could resolve this EB. Whether they came from our legal
advisers or whether they came from someone from my organisational leadership
team, I am not sure. As I said, I do not have access to my notes. They would be
in the notes around where that recommendation came from. I had some initial
discussions with them. I gave them some terms of reference about what I was
looking for, which was around giving me as many options that we have to resolve
When asked about his perceptions of the hiring of Seyfarth Shaw, Mr Marshall
questioned the appropriateness of seeking advice from Seyfarth Shaw given the
reputation of the firm and the circumstances of the dispute:
It did not surprise me when the revelation was made that that
firm was engaged. If anyone wants to do a cursory google, they have been
involved in union busting and are designated as a union-busting firm in the
United States. In fact, they have been involved in firefighter disputes. But it
does not surprise me with the CFA, and you have to ask that question about that
sort of advice in the context of good-faith bargaining. Why did they get that
advice? I understand they say it was just seeing what our options are. Not once
was that advice talked about in the Fair Work process, and there was no
Ms Nolan refuted claims that the hiring of Seyfarth Shaw was based on
anything other than the firm's experience in relation to complex enterprise
bargaining agreements, but acknowledged that engaging them may not have been
the wisest course of action given their reputation:
Ms Nolan: These people [Seyfarth Shaw] are experienced. We
put out the terms of reference—what we were looking for—and they responded with
Senator CAMERON: If you had been advised of their anti-union
history, would you have engaged them?
Ms Nolan: Probably not, to be honest, because it is a red rag
to a bull, so that takes away from the intent about the advice that I was
seeking. I was not seeking to inflame the union. I was seeking to actually work
in a consultative way, and this was really around my fiduciary responsibilities
as CEO to make sure that I had considered every available option so that we
would get the best result for the CFA.
Non-government senators are of the view that the evidence from Ms Nolan
on this issue was evasive and disingenuous. It beggars belief that the former CEO
of the CFA cannot remember who advised her to hire a Chicago-based union busting
legal firm during a protracted industrial dispute with career firefighters. It
also beggars belief that Ms Nolan could provide no information of any substance
in relation to what has been reported in the media as a secret union busting
Ms Nolan's evidence must, therefore, be treated with significant scepticism
as to its veracity.
At the time of writing this report the committee is still waiting on
requested documentation including the terms of reference and instructions to
Seyfarth Shaw; and answers to questions taken on notice by the CFA in relation
to this matter.
The credibility of former CFA Board members Mr Peberdy and Mr Tudball
was highly questionable given they were members of the Board at the time
Seyfarth Shaw were engaged, and were part of the Board that was dismissed in
June 2016 in part for the continued operation of the contaminated CFA Fiskville
training ground. A Victorian Parliament Inquiry found CFA Board members and
management knew of contaminated soil and water yet continued to operate the
Senator MARSHALL: Did the board ever consider that they
should stop sending people to Fiskville until they could be assured that it
was, in fact, safe? Was that ever a consideration of the board?
Mr Peberdy: The consideration of the board was: was Fiskville
safe? It was not that it was not safe. The consideration was: was it safe?—
Senator MARSHALL: So you always considered it in the
Mr Peberdy: We were of the view that whilst there was
evidence of PFOS and so on there, as has been found at most firegrounds around
the world, that is also—
Senator MARSHALL: That is your justification?
Mr Peberdy: No, what I am saying is there is a level where it
is safe and where it is unsafe. We did not have evidence to suggest that
Fiskville was unsafe.
Senator MARSHALL: Mr Tudball, do you have any comments on
Mr Tudball: I think Mr Peberdy has answered. I was not aware
we were here for the Fiskville inquiry again, and I have not prepared for it.
Senator MARSHALL: It is one of the reasons you were dismissed
from the board.
Mr Tudball: Apparently.
Non-government members of the committee are deeply suspicious of the
politicisation of this dispute by the Liberal Party in Victoria in order to
take advantage of this issue for the 2016 federal election.
The Liberal Party registered a 'Hands off the CFA' website in April
2016. Members of the public registered their interest in the website and that
personal information was later used to solicit financial support for the
campaign — which was a Liberal Party campaign.
Productive relationships between career and volunteer firefighters at
The committee also heard evidence from volunteer firefighters from
integrated stations that they did not support the bill because the EBA had
nothing to do with volunteers. Furthermore, the good relationships between
volunteer and career firefighters at integrated stations had led to
improvements in skills and equipment. For example, Mr Luke Symeoy from Craigieburn,
told the committee:
On behalf of my brigade: we do not want this bill to go
ahead. We want this settled. I would like this settled. The fire season is
coming up and we do not need this. This has gone on for too long. The EBA has
got nothing to do with volunteers. If anything, it is going to better us and
better our skills and better our equipment, because half the equipment that we
have got today we would not have if it were not for staff. That is the honest
truth. I can stand here and put my hand on my heart and tell you that.
Other volunteers were saddened that the political intervention and
misinformation about the EBA were driving a wedge between volunteers and career
firefighters. Mr Raj Faour, a volunteer from Hallam, told the committee:
You probably hear a lot in the media, and the VFBV love to
speak about 60,000 volunteers and how they represent the 60,000 volunteers. Well,
I am one—and one of many—who stands before you today and tells you that we are
not represented by the VFBV. We see all these things that are happening. We
see a huge wedge and divide that is being driven between the volunteers and the
staff, and unfortunately there seems to be a lot of detachment from certain
brigades which seem to be further out in the state and do not have much to do
with staff firefighters. I jump on the truck with my comrades here, because
they do not stop me from getting on the truck. They actually welcome me getting
onto the truck. When I get to the station, they are like, 'Raj, are you
available? Are you jumping on with us?'. My first answer is, 'Boys, I'm with
you 100 per cent.'...Just to show you the camaraderie between the volunteers and
the staff at our station: when I am free at lunchtime, I am down at the station
and I share a meal. We sit down in the mess and we eat together. We have
coffees together. We have a fishing club together—we all fish together. So it
saddens me to see this situation turning into a huge political game. There
is a lot of misinformation that is being pushed onto many volunteers out there
who do not have the exposure to these integrated brigades or the firefighters.
If I was in doubt of anything, I would always go up and I would research it. I
would ask, whether it is a UFU delegate at our brigade, whether it is Steve,
whether it is another friend of mine who might be up north.
EBA negotiation process
The length of time taken to negotiate the EBA was cited favourably by
those arguing in favour of the bill. Proponents of the bill argued that the EBA
process had been complex; had trampled the rights of volunteers; and that the
EBA itself now covered areas which should fall under standard operating
These arguments are examples of the misinformation about the EBA which
has so damaged goodwill in the firefighting community. This section provides
evidence from the committee's hearings which demonstrates the reality of the
EBA negotiation process.
The former CEO of the CFA, Ms Nolan, told the committee that complexity
and the involvement of many different individuals were the chief causes of
delay in the EBA bargaining process.
It is important to note that the previous CFA Board and CEO continued
to attempt to frustrate bargaining as outlined in the Final Recommendation of
Commissioner Roe. The Commissioner expressed frustration about the CFA seeking
to re-agitate matters previously agreed.
In contrast to Ms Nolan's evidence, other witnesses were certain that
prior to the political interference in the EBA process, the EBA was on the
point of being finalised. Ms Frances Diver, the CFA's new CEO explained how
within eight weeks, she had worked with the CFA Board to resolve issues related
to the EBA. Ms Diver told the committee that the process had involved
discussions with the UFU, advice to the CFA Chief Officer, Mr Warrington,
regarding the interaction between his powers and the EBA, and consultation with
In my perspective, what we did was: the board came in, we
consulted very heavily both externally and internally, we consulted with the
volunteers association, we took on board their feedback, we went back to the
UFU, we negotiated hard, we got some concessions, we got some additional
assurances by way of clarification and we got some legal advice that provided
the CFA board—so it was a board decision, obviously, not my decision—that, in
the interests of the overall organisation, we thought we could work through any
of the issues in the enterprise agreement in terms of implementation. So the
task in front of us was implementation.
Unfortunately, as Ms Diver told the committee, legal action in the
Supreme Court has put the process on hold.
Elements of the EBA
Mr Marshall told the committee that the EBA 'achieves the outcomes of
the [2009 Victorian Bushfires] Royal Commission.'
He explained that:
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 differently.
On top of that, at the moment recruit firefighters in the MFB
and CFA—I am talking about career firefighters; they have nothing to do with
volunteers—are actually taught different syllabuses, terminologies, equipment
procedures. So they are not interoperable. That was identified in the royal
commission. As a result of this, for the very first time the MFB and CFA
enterprise agreements are actually virtually the same. There will be one
recruit course. The firefighters will come out as a firefighter for the state of
Victoria. They will still be employed by CFA or MFB, but they will be
interoperable. In other words, they will be able to utilise MFB equipment. The
CFA will be able to use MFB equipment. For the very first time, there is now a
secondment program, which we initially trialled in 2011, but it was stopped by
the previous government. That secondment program embeds MFB career firefighters
into the CFA structure and CFA career firefighters into the MFB structure to
break down those parochial barriers. And there is a transitional course. Again,
there is no impact on volunteers in relation to this. 
Career firefighters, like Mr Peter Spicer, Senior Station Officer at
Craigieburn, felt that the EBA contained provisions essential for firefighter
safety. He told the committee:
[The EBA] is not just about our pay and conditions. It is
probably worth noting that we rejected an earlier pay offer which was higher
than the one that is currently on the table. We rejected it because the other
conditions that went with that did not provide the degree of firefighter safety
that we require and it did not offer the additional safety that is offered in
the proposed EBA now for community. One of the things that was mentioned
briefly was road accident rescue, EMR. Those are things that are included in
the proposed EBA that we will be providing to the community, which is obviously
a positive thing.
Firefighter safety is always going to be top of our list. We
cannot help anyone else if we are injured or do not get to the fire in the first
place. I have a couple of points, and PPC was one that came up earlier, I know.
I might just touch briefly on the PPC, if I can, and how we came to the
position we had with the PPC. That was through our consultation and the fact
that we did have a union representing us.
One of the early specifications for the structural gear that
we wear now, from CFA, without going into too much technicality, had the layers
within it the wrong way around and it was going to create danger for
firefighters. There is a thermal barrier and a moisture barrier. The moisture
barrier was on the wrong side, which would have allowed moisture into the
clothing and then, in a hot environment, potential steam burns for
firefighters. That was one of the things that we fought and fought and fought,
and finally we got through. Now the gear that we wear is safe and, as we talked
about, was also issued to volunteers, so we do have the same gear.
The repeated claims that the consultation provisions in the proposed
Agreement constituted a veto for the UFU and a union take-over was not
substantiated by the evidence.
The VFBV’s written submission conceded the consultation provisions were
a matter of a process.
The CFA Chief Officer, Mr Warrington, also confirmed that the
consultation and dispute provisions do not constitute a 'veto':
The agreement provisions require agreement between the UFU
and CFA. This does not constitute a veto power for either party.
As I stated in my evidence before the committee, it has not
been the experience of the CFA that I or the officers under my control have
been 'locked away' at the FWC [Fair Work Commission], attempting to resolve a
dispute whilst we are in an emergency situation. Further, the CFA has
negotiated a joint statement of intent with the UFU which, among other things,
records the parties' intention to resolve disputes as quickly and efficiently
Volunteers and the EBA
While some volunteers told the committee that the EBA would unfairly
impact their situation, it was clear from evidence that these concerns were the
result of misinformation.
But in brigades where accurate information had been available, the
opinion of volunteer firefighters was that volunteers need have no part in the
EBA negotiations. Mr Justin Rees, First Lieutenant and volunteer firefighter at
the Melton brigade, told the committee:
We, as a brigade, believe that the proposed EBA does not
affect volunteers and we have formally expressed this to Volunteer Fire
Brigades Victoria. However, the volunteer bill 2016, if implemented, will
affect our relationship with our members, staff and volunteers and impact our
service delivery. Encouraging volunteer organisations to intervene into the
employment matters and conditions of people employed by emergency services is
not appropriate. We need to be focused on supporting our community, protecting
life and property and supporting our emergency service people—volunteer and
Professor Stewart, an expert in industrial relations law, was in
agreement with Mr Rees' brigade regarding the need for volunteers to become
involved in the EBA. Professor Stewart's view was that should the bill be
passed, it would allow for intervention by volunteers and result in increased
uncertainty and delays:
So, to the extent that the dispute at the CFA is about the
right balance to be struck, there is a clear industrial issue there. Is it a
legal issue? Not so much. What this bill will do is create a legal issue around
the very specific question of how a body like the CFA manages its employees and
its volunteers. Do employees have a legitimate interest in that? Yes. Do
volunteers have a legitimate interest in that? Yes. Again I stress I am not
here to talk about the rights and the wrongs. It seems to me from everything I
have heard that there are clearly strongly held and potentially legitimate
concerns on every side of this debate. The question is: does this bill help
resolve the dispute? I would say no; it just adds uncertainty.
CFA consultation with volunteers
The view expressed by many volunteers that there is no consultation with
them or their organisation by the CFA is another example of the clear and
blatant misinformation being circulated.
The CFA has, does and will continue to consult with volunteer
representatives through the CFA-VFBV joint consultation committees on matters
including training, volunteerism, equipment, uniform and infrastructure,
operations, community safety and communication and technology. These
consultation processes are separate and independent of any consultation process
with the UFU.
Further the VFBV has 4 representatives on the 9-member CFA Board.
The EBA and the CFA Act
The committee heard evidence from several witnesses that a raft of
appropriate checks and balances already exist within the current legislative
framework to ensure that the proposed EBA would not impact on the ability of
the Chief [Fire] Officer to perform his or her duties under the CFA Act.
For example Chief Officer Warrington told the committee quite clearly
that his powers under the CFA Act were not compromised by the EBA:
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.
This view was supported by Professor Stewart who told the committee that
the FW Act provides that an EBA cannot override state or territory laws dealing
with essential services or emergency management:
Federal enterprise agreements...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.
The current CFA Board has released a Board Resolution which explicitly
states that 'the Fair Work Act 2009 (Vic) operates so as to ensure that
nothing in the Agreement [proposed EBA] can inhibit the Chief Officer from
giving directions about the performance of work in an emergency situation'.
As Chair of the CFA Board, Mr Greg Smith wrote to the CFA Chief [Fire]
Officer, Mr Warrington, and set out in the plainest possible language that the
proposed EBA will not affect the operation of certain Victorian laws:
The purpose of this letter is to advise you that, if the
agreement becomes operative, this will not and cannot affect the operation of
certain Victorian laws and your powers and obligations under those laws. The
principal legislation to bear in mind is the Equal Opportunity Act 2010
and the Occupational Health & Safety Act 2004. You must at all times
ensure that we comply with those laws.
It is also relevant to note that the Fair Work Act 2009
and any award or agreement made under it cannot interfere with or detract from
your powers and obligations under the Country Fire Authority Act 1958
concerning directions to perform work relating to the provision of essential
services or in situations of emergency. In that regard, I draw your attention
specifically to your powers under section 27 of the CFA Act which places all
officers and members of CFA brigades under your order and control.
The evidence presented above clearly contradicts the erroneous and malicious
assertions propagated during the course of this inquiry by former CFA Board
members, the former CEO of the CFA, and by the VFBV that the EBA would somehow
cause the CFA to be in breach of the CFA Act and would prevent the Chief [Fire]
Officer from carrying out their duties under the CFA Act.
Furthermore, the question of whether the EBA contravenes elements of
state law is currently before the Supreme Court of Victoria. As Professor
Stewart told the committee, 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'.
The fact that there already exists a capacity for these matters to be
put before a superior court renders obsolete one of the key reasons for this
bill put forward by the government, namely to prevent an EBA from allegedly
being able to override relevant state legislation.
Uncertain scope of the bill
Numerous organisations expressed great concern during the inquiry about
the inherent ambiguity in the legislation and the consequent uncertain scope of
the bill. The Australian Nursing and Midwifery Federation (ANMF) pointed out
that, on the face of the bill, public hospitals and the Australian Red Cross
could fall within the scope of the bill.
Likewise it appears that the police force in Victoria and the Australian
Federal Police might fall within the terms of the bill.
The Police Federation of Australia and the ANMF drew attention to the adverse
consequences that the bill, if enacted, could have on the use of volunteers by
the police and within the health services sector.
The bill provides for the deeming of employers as 'emergency management
bodies' whether or not those organisations (public or private) would be
described as such. The submission from Ryan Carlisle Thomas Lawyers pointed out
further uncertainty in the scope and nature of organisations that may be
captured by this bill:
At a policy level the bill has the appearance of a 'private bill'
in essentially targeting a single entity, namely the Country Fire Authority.
The bill has a veneer of general application. The uncertainty about its general
application is reflected in the necessary use of Regulations to determine:
- what are designated emergency management bodies and thus caught
by the bill (new section 195A(4)(a)(ii);
- what are not designated emergency management bodies (new
section 195A(5); and
- what are volunteer bodies (new section 254(A)(2)(b).
It is submitted the use of Regulations to determine the
actual scope and application of the bill is an inappropriate use of Regulations
in such a case.
Reliance on regulation to
determining the scope of the bill
Significant unease was expressed by both the Australian Council of Trade
Unions (ACTU) and by the ANMF over the reliance on regulation to determine the
scope of the bill. The ACTU pointed out that relying on regulation to clarify
the inherent uncertainty in the bill had the effect of evading proper
parliamentary scrutiny of the full consequences of the legislation.
Entitlement for volunteers to make submissions to the Fair Work Commission
Submitters such as Professor Stewart and Ryan Carlisle Thomas Lawyers observed
that the bill grants an extraordinary and unprecedented power to volunteer
organisations to intervene in the bargaining process between an employer and
their paid employees.
Furthermore, several submitters and witnesses pointed out that the bill
strips the discretion that the Fair Work Commission currently has to determine
who to hear from and who not to hear from in relation to a specific bargaining
As a consequence, Ryan Carlisle Thomas Lawyers pointed out that the bill
would not only allow 'a stranger to the bargaining process to intrude into the
bargaining between the industrial parties', but would also require the Fair
Work Commission and bargaining representatives 'to address submissions made
regardless of merit and proper interest'.
The granting of this extraordinary and unprecedented legal right to
volunteer bodies caused deep concern to several employee organisations. For
example, Ambulance Employees Australia Victoria objected strongly to the fact
that the bill would allow individuals not covered by an EBA to intervene in the
setting of terms and conditions for paid employees.
Beyond this, however, the bill sets up a recipe for greater uncertainty
and the ability for third parties to prolong the dispute between the CFA and the
UFU. Bear in mind too that the dispute between the CFA and the UFU has now been
resolved to the extent that the CFA Board had, prior to the Supreme Court
injunction instigated by the VFBV, instructed its CEO to put the EBA to its
employees for a vote.
However, as Professor Stewart remarked, because the bill provides for a
volunteer organisation to make a submission to the Fair Work Commission that
some aspect of the EBA may have some impact on volunteers, the bill sets up a
scenario for potentially endless disputation.
Furthermore, as Professor Stewart pointed out, the bill would add a
further layer of complexity to the bargaining negotiations because the Fair
Work Commission would then need to begin forming potentially problematic
judgments about how an organisation such as the CFA should be run in terms of,
for example, the allocation of work or resources between paid employees and
Professor Stewart was not alone in his comments. Mr Matt O'Connor,
Deputy Secretary from the Victorian Department of Economic Development, Jobs,
Transport and Resources agreed with Professor Stewart's assessment of the bill:
One has only to read the concepts that are included under the
definition of 'objectionable emergency management term' to form the impression
that they potentially cover a wide gamut of matters, or at least are ambiguous
in their terms. They are provisions that would require the Fair Work Commission
to form opinions about a range of matters and in our view have the potential to
slow down the approval process, firstly, and to open up avenues of appeal down
the track. So we do have major concerns with the legislation. That is probably
our major concern with it.
Constitutionality of the bill
Professor Stewart stated quite forcefully 'that there will be an obvious
argument' that the bill is 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.
Beyond this, Professor Stewart noted that regardless of whether a
constitutional challenge was successful or not, there was a 'clear potential'
for the matter to eventually end up in the High Court, resulting in further
uncertainty in dealing with matters which the bill is supposedly designed to
Retrospectivity of the application of the bill
The bill will apply to Agreements that are already in place and certified
by the Fair Work Commission. Current agreements will be judged against these
new regulations and 'objectionable term' tests. In this regard, Professor
...if passed, the new FW Act provisions could be used to
challenge terms in enterprise agreements that had already been approved by the
Fair Work Commission (FWC): see cl 14 of the bill. It is true that the
amendments are not in a technical sense 'retrospective', since they would not
render any provisions invalid as from before the time the amendments took
effect. But the amendments would have the potential effect of changing the
operation or effect of agreements that had already come into force, and that
may indeed have been negotiated long before this legislation was ever
This bill is an ill-construed, rushed, and partisan intervention into
state matters for purely political reasons.
It bears repeating that the dispute between the CFA and the UFU over the
EBA had effectively been resolved when the CFA Board, having consulted widely
and reviewed all the evidence available to it, instructed its CEO to put the
proposed EBA to its employees for a vote.
Yet the actions of the Coalition government during and since the federal
election campaign seem designed to inflame the dispute for purely political
gain at the expense of the CFA, and career and volunteer firefighters on the
Non-government senators object in the strongest possible terms to the
obscene vilification of career firefighters, brave men and women who routinely
risk their lives on behalf of others to keep the community safe.
Non-government senators also recognise the enormous damage that the
politicisation of this issue by the Prime Minister and Federal Employment
Minister has wrought on structural relationships within the CFA.
Non-government senators also register their deep unease about the impact
that misinformed commentary has had on public perceptions of the dispute and
the reputation of the CFA as an organisation.
Non-government senators are firmly of the view that the CFA dispute is a
state matter and should be resolved at a state level. Commonwealth intervention
such as the proposed bill is ill-judged, unwarranted, and certainly not in the
interest of the overall fire service.
Non-government senators praise the outstanding contribution of both
volunteer and career firefighters to the CFA and remain of the view that the
restoration of a productive and harmonious working relationship between CFA
management and career and volunteer firefighters is of paramount importance.
The most pressing item of business at this juncture is for the EBA to be
put to employees in order for the dispute to be resolved, and for career and
volunteer firefighters to continue working together to promote and provide
Yet the bill contributes nothing towards the process of resolving this
dispute. Instead, the bill adds another layer of complexity and, by virtue of
the appeal mechanisms that it seeks to set in place, virtually guarantees that
the dispute will be needlessly prolonged. This is a dangerous ploy by the
Coalition government on the eve of the fire season.
Non-government senators draw attention to the concerns expressed by a
great many submitters regarding the inherent uncertainty about the scope of the
bill and the reliance on regulations to try to clarify the scope of the bill.
Beyond all this, non-government senators note the uncertainty
surrounding the constitutionality of the bill. The Commonwealth Department of
Employment stated that it had received legal advice from the Australian
Government Solicitor which purportedly stated that the bill was within Commonwealth
The government's refusal to divulge that legal advice creates the impression
that the legal advice may not be as conclusive as the Prime Minister has previously
In summary, the bill is an unnecessary and counterproductive intrusion
into state matters and will have the disastrous effect of prolonging a dispute
that has already been resolved between the parties to the agreement.
1.94 Non-government senators recommend that the bill
not be passed.
Senator Gavin Marshall
Senator Doug Cameron
Senator Lee Rhiannon
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