August 25, 2016 3.27pm AEST – Julian Teicher (click HERE to view the original version)
For many, the release of draft legislation purporting to bring an end to the prolonged Victorian firefighter dispute was a welcome, timely fulfilment of Prime Minister Malcolm Turnbull’s promise to make it the “first item of business” following his re-election.
However, the bill – both in the manner of its launch and in its content – will generate continuing controversy. And it will not solve the problems to which it was allegedly directed.
If federal parliament passes the bill, a constitutional challenge is likely to ensue.
Where is the dispute up to?
The dispute between the Country Fire Authority (CFA) and the United Firefighters Union (UFU) in Victoria has been running for almost three years.
At one level it is about the parties’ failure to agree on a new enterprise bargaining agreement (EBA). But there is a variety of underlying issues, including a poor relationship between management and the paid firefighters and the union that represents them.
The core issues have been partly obscured in the highly politicised public debate. The UFU’s Victorian secretary, Peter Marshall, has been depicted as a union militant hell-bent on destroying the CFA. And Victorian Premier Daniel Andrews is said to have a “sinister purpose” and to be indebted to a “union boss” who played a key role in his electoral victory.
On June 1, the Fair Work Commission issued recommendations intended to resolve the dispute. It explicitly referred to the flashpoint issues of the relationship between paid and volunteer firefighters, and the:
… maintenance of the discretion of incident controllers in managing resources in the interests of public safety.
The CFA rejected the proposed EBA. It argued the agreement would give the UFU the power to veto operational decisions by the chief officer while undermining the role of volunteers.
Events escalated from here. The Victorian government endorsed the agreement; the CFA sought a Supreme Court injunction preventing the agreement being put to a ballot of paid firefighters. This was followed by the sacking of the CFA board and the resignations of Emergency Services Minister Jane Garrett and CFA chief executive Lucinda Nolan.
Subsequently, the new CFA board, in consultation with Volunteer Fire Brigades Victoria (VFBV) and the UFU, produced a draft agreement. The CFA and UFU affirmed the agreement:
- applies only to the small number of integrated fire stations with paid and volunteer firefighters;
- does not require seven paid firefighters on the ground before firefighting begins; and
- incident controllers maintain their authority in deploying resources.
On the face of it, this should have been the end of the dispute.
But the VFVB again rejected the agreement and returned to the Supreme Court. There it secured an undertaking from the CFA that the agreement would not be put to a ballot until the court makes a decision on the agreement’s legality in a hearing beginning on September 22.
The federal government’s response
Turnbull claims the immediate purpose of the federal government’s legislation was to protect the CFA and its volunteers from a “hostile takeover” by the UFU, which would ultimately undermine the CFA’s effectiveness and “compromise the safety of Victorians”.
The federal government will do this by inserting a new section into the Fair Work Act to prevent the Fair Work Commission approving terms of an enterprise agreement (objectionable terms) relating to emergency services volunteers – if those terms restrict the emergency services organisation’s ability to engage or deploy its volunteers, or provide them with support or equipment, or require the “body to consult, or reach agreement with, any other person or body before taking any action” in relation to those matters.
It also purports to invalidate any agreement provisions:
… restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well‑being and safety of the community.
Unusually, the bill also provides for bodies that represent emergency services volunteers to make submissions to the Fair Work Commission where the subject matter may affect the interests of volunteers. This right is not extended to employers, employer organisations or unions under the Fair Work Act.
Presumably, the federal government was concerned the VFBV was precluded from participating in the facilitated bargaining by the commission. Arguably, this is best addressed by separate consultative arrangements undertaken by the CFA.
The bill is far-reaching. But it is unlikely to be effective and will not hasten a settlement in this case.
The restriction on terms in enterprise agreements relating to volunteers is likely to face a constitutional challenge from its intended target, the Victorian government. This is because it infringes on a state’s capacity to govern in an area that is clearly its responsibility: firefighting services operations and employment.
If the provisions survive, there will then be potentially lengthy proceedings in the Fair Work Commission and possibly the Federal Court to determine their precise meaning.
With the bill yet to go before parliament, Victoria is likely to enter the next bushfire season without the enterprise agreement being approved by the Fair Work Commission. On its own this would not be a problem, but with intense politicisation and polarisation, morale and operational efficiency are likely to suffer.
If politicians – both federal and state – have any real concern for the CFA workforce and Victorians’ safety, they would do best to refrain from further public comment.
Perhaps the best that can be hoped for is the Supreme Court makes an early decision on whether the proposed agreement breaches the Country Fire Authority Act requirements that the CFA consult meaningfully with the volunteers on any matters that may affect them before any decision is made, and develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteers to provide the CFA’s services.