[2010] FWAFB 3009

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Fair Work Act 2009
s.238—Application for a scope order

United Firefighters’ Union of Australia
Metropolitan Fire & Emergency Services Board
Metropolitan Fire & Emergency Services Board
United Firefighters’ Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes



[1] The United Firefighters’ Union of Australia (UFUA) and the Metropolitan Fire & Emergency Services Board (MFESB) have been involved for some time in negotiations for an enterprise agreement. The UFUA and the MFESB disagree on whether the proposed enterprise agreement should include two classifications of employee, namely: Commander and Assistant Chief Fire Officer (ACFO). This decision concerns two applications under s.238 of the Fair Work Act 2009 (the Fair Work Act) for orders determining the scope of the proposed enterprise agreement. The applications were heard together. The UFUA contends that the proposed enterprise agreement should cover all operational employees including Commanders and ACFOs. The MFESB contends that any enterprise agreement covering operational employees generally should not cover Commanders or ACFOs. It goes on to propose that, in addition to the enterprise agreement covering operational employees, there should be two additional enterprise agreements covering Commanders and ACFOs respectively.

[2] The UFUA and the MFESB are parties to an agreement-based transitional instrument known as the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2005 (the current agreement). 1 The nominal expiry date of the current agreement is 19 April 2009. It is common ground that the UFUA and the MFESB have been bargaining for a new agreement for many months. Pursuant to s.176 of the Fair Work Act the UFUA is a bargaining representative for the MFESB employees in the ranks of Recruit to Commander who are its members and who it is proposed should be covered. As well, eight ACFOs have appointed the UFUA as their bargaining representative. Within the MFESB there are 58 positions at the rank of Commander and 11 positions at the rank of ACFO. Fifty-five of the 58 Commander positions were filled at the time of the hearing. Twenty-one Commanders are members of the UFUA.

[3] The UFUA application was lodged on 3 September 2009. It seeks an order that the following classifications be included in the scope of the proposed enterprise agreement:

[4] The MFESB application was lodged on 7 September 2009. It seeks to include all of the classifications specifically named in the UFUA application in the scope of the proposed agreement other than the ranks of Commander and ACFO. We also note there is agreement that employees in the classification of Fire Services Communications Controller should be covered by the proposed enterprise agreement and that any order made as a result of these applications should reflect that position.

Section 238

[5] The terms of s.238 have not previously been considered by a Full Bench and should be set out in full:

[6] The terms of the section will require interpretation and application in this case. In particular it will be necessary to consider the application of the criteria in ss.238(4) and 238(4A).

The context

[7] In order to understand the cases put it is necessary to set out some of the organisational and historical context. We commence with a description of the relevant part of the MFESB’s organisation and then deal with the role of senior staff including Commanders and ACFOs. The MFESB is responsible for fire prevention and suppression and emergency prevention and response services in metropolitan Melbourne. Its establishment and operation are provided for in the Metropolitan Fire Brigade Act 1958 (the MFB Act). Section 7 of the MFB Act sets out the MFESB’s functions:

[8] The MFESB employs operational staff pursuant to s.25B of the MFB Act. It is not necessary to set that section out. Section 26 provides for the formation of units of employees and stipulates that a member of a unit is subject to the direction and control of the Chief Officer. The MFESB is the only unit formed under the MFB Act. The term “operational staff” is defined in s.3 of the MFB Act as “all members of units”. Sections 32A and 32B of the MFB Act are central to the work of operational staff and should be set out in full:

[9] We draw attention in particular to the provision that operational staff at the scene of an alarm of fire are under the control and direction of the senior member of the operational staff in attendance and the special responsibility which that senior member has in suppressing any fire and saving any person or property in jeopardy. The term “senior operational staff” is defined in s.3 of the MFB Act to mean “all employees of the Board employed in senior positions”. A “senior position” means “a position in a unit designated by the Board as a senior position”. On 30 October 2007 the Board of the MFESB resolved to designate the following positions as senior positions: Chief Fire Officer, Deputy Chief Fire Officer, ACFO and Commander. It is also relevant that the rank of Commander has been designated as a senior position by the MFESB since 1997 when the definition of senior operational staff was included in the MFB Act.

[10] The relevant rank structure in the MFESB, in hierarchical order, is as follows:

[11] The current agreement applies to all ranks up to and including the rank of Commander but excludes the ranks of ACFO, Deputy Chief Fire Officer (DCFO) and Chief Fire Officer. Most of the operational employees are covered by the current agreement. The MFESB also employs a significant number of non-operational employees in administrative and other positions. It has not been suggested by either party that non-operational employees should be included in the proposed agreement.

[12] It is important to make some comment on the role of senior operational staff. Commanders and ACFOs, as noted already, are designated as senior operational staff. Only senior operational staff may lay a charge under the Metropolitan Fire Brigades (General) Regulations 2005 (the Regulations) for a breach of the Regulations such as misconduct, negligence or careless discharge of duties, or disgraceful or improper conduct. Senior operational staff also have the power to require a firefighter to undergo a medical examination. Unlike other staff, senior operational staff have no right of appeal against promotion decisions.

[13] The Chief Officer has power under reg.11 of the Regulations to issue general orders in relation to the role of senior operational staff. Under the general orders, senior operational staff can give a direction to downgrade the level of response to an alarm of fire. The only other rank with that authority is the Fire Services Communications Controller. A senior operational staff member at the scene of an alarm of fire may elect not to take charge and direct a member of lesser rank to do so, although the senior operational staff member remains responsible for the conduct of that other member on their behalf. Only senior operational staff may approve leave applications made by operational personnel. Under a project governance model which the MFESB is proposing, Commanders and ACFOs would have special project responsibilities.

[14] We now deal specifically with the role of ACFOs. ACFOs report to directors who in turn report directly to the Chief Executive Officer. Seven ACFOs are in charge of departments. Those departments are: training and education, structural fire safety, dangerous goods, community education, operations improvement, emergency management and equipment and resource management. Four ACFOs have responsibility for a firefighting zone and an additional coordination role. The four positions are: Central Zone plus administration coordination, Northern Zone plus health and safety and training coordination, Western Zone plus community safety coordination and Southern Zone plus operations coordination.

[15] The current ACFO position description includes the following responsibilities:

[16] The objectives of the ACFO roles and the principal requirements were described by DCFO Wright as follows:

[17] It is clear that ACFOs have important planning, leadership and other management functions. They are part of the Executive Management Group which provides support to the Executive Management Team. That team is comprised of the Executive Director, the Chief Fire Officer and the Chief Executive Officer. ACFO Swain gave evidence concerning his responsibilities as the Central Zone ACFO. As he put it:

[18] We conclude that, allowing for variations in number and degree, this description of responsibilities applies to all Zone ACFOs. As noted already, the four Zone ACFOs all have a coordinating responsibility for a particular area. It is not necessary to set out the detail of those responsibilities. It is beyond dispute that they are senior management ones.

[19] Although not based in fire stations, ACFOs are generally required to be on call outside business hours seven days a week on about 10 occasions per year. When the officer at the scene of an alarm of fire requests a third alarm response or higher an ACFO’s attendance is required. The evidence shows that attendance at incidents is a small part of the ACFOs’ job, with ACFOs attending fewer than 1% of all incidents.

[20] When the MFESB advertised for ACFOs in November 2008 the advertisement included the following:

[21] It may be relevant to these proceedings that the current UFUA log of claims contains a demand that all appointments to ACFO positions in future be internal appointments drawn from the rank of Commanders.

[22] We deal now with the organisational roles of Commanders. There are 20 shift Commanders. Sixteen of the shift Commanders are responsible for a platoon of firefighters in one of the four MFESB zones. The other four provide relief. The remaining 38 Commander roles are day work roles. Of these, 12 are located in zones (Zone Commanders) and 26 are in functional roles. The functional roles are in relation to such matters as community safety operations, operations support, corporate governance, etc. Commanders are required to attend at the scene of an alarm of fire more frequently than ACFOs, but this is still a small component of their duties. We deal first with the responsibilities of shift Commanders.

[23] Each shift Commander is usually responsible for 13 stations, except the Central Zone Commander who is responsible for 8 stations. Stations vary in size. A station of 3-5 firefighters would be under the command of a Station Officer. A station of 10-16 firefighters would be under the command of a Senior Station Officer. There are some 95 Senior Station Officers and 322 Station Officers. We accept the accuracy of the following paragraphs from the evidence of DCFO Wright:

[24] We turn now to day work Commanders. The 12 Zone Commanders attend a second alarm of fire or greater if the shift Commander is unable to attend. They are also on call outside business hours for a seven day period every six to eight weeks. According to the evidence the “vast bulk” of the work of the day work Zone Commanders concerns training and development, community safety or operations strategy within the Zone.

[25] The day work Commanders who are in functional roles are on call outside business hours for seven days every six to eight weeks. These Commanders are in key management positions within the MFESB. According to DCFO Wright, the Commanders are required, among other things, to:

The industrial history

[26] We shall deal briefly with the history of industrial regulation of the higher ranks within the MFESB. The Fire Brigades Operational Staff Award 1988, an award of the Industrial Relations Commission of Victoria, applied to the MFESB and covered the ranks from Firefighter to Chief Fire Officer. In 1994 the first federal award was made. 8 That award applied up to the classification level of Senior Station Officer. Ranks above that level were covered by contractual arrangements. The rank immediately above Senior Station Officer was at that time Inspector. There was a significant amount of disharmony concerning the industrial coverage of Inspectors between 1993 and 2002 and the UFUA discouraged its members from applying for positions at that level. In 2002 an award was made to cover Inspectors only.9 Shortly thereafter, an agreement was certified between the MFESB and the UFUA covering Inspectors only.10 At about the same time, the new rank of Commander - Operations was created in the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operations Staff Agreement 2002.11 In heads of agreement reached between the UFUA and the MFESB in 2005 there was agreement in principle that all ranks up to and including Commander be covered by the one enterprise agreement. A clause in the heads of agreement provided for conditions for Commanders to be included in an appendix to the enterprise agreement. When the current agreement was made in April 2006, the ranks of Inspector and Commander were combined into one rank, known as Commander. In the negotiations for a new agreement a number of claims have been made for conditions which are specific to Commanders. These include claims relating to use of vehicles, mobility and position descriptions.

[27] ACFOs, then known as Commanders, although covered by The Fire Brigades Operational Staff Award 1988, were not covered by the interim federal award made in 1994. 12 Thereafter ACFOs were employed subject to contract. In the final half of 2005 a number of ACFOs raised a dispute concerning their conditions of employment. The dispute concerned: salary levels, recognition for being on call, recognition of emergency response and operational duties, an annual review of salary and removal of the bonus system. Ultimately the dispute was referred to an independent barrister for resolution pursuant to the relevant terms of the contracts. The barrister’s recommendations, however, were apparently not put before the MFESB Board as required by the contract.

[28] During 2005 there were negotiations with the MFESB, which also involved the Victorian Government and the Australian Council of Trade Unions (ACTU), for a collective agreement that would apply only to ACFOs. Agreement was not reached on a separate collective agreement, but agreement was reached on some matters and these were recorded in a deed of agreement. The deed, among other things, provided for mediation before a member of the Australian Industrial Relations Commission (the Commission) on the outstanding matters.

[29] Towards the end of 2005 the ACFOs asked the UFUA to make a claim for the terms of the operational staff agreement to be extended to include ACFOs. The claim was made but was unsuccessful. At the end of 2006 and continuing on in 2007, Commissioner Smith mediated between the ACFOs and the MFESB pursuant to the deed of agreement reached the previous year and some further progress was made. It is apparent that complete agreement was close but never reached. The discussions finally broke down in early 2008, apparently on the issue of superannuation, after which the MFESB withdrew from the negotiations on the basis that the Victorian Government had not approved the proposed collective agreement. The MFESB then proposed another draft collective agreement with a number of different terms.

[30] Mr Watt, one of the ACFOs and a principal UFUA witness in the proceedings, indicated that while the ACFOs negotiated with the MFESB on the terms of a collective agreement to apply to ACFOs only, it was intended that the expiry date should coincide with the expiry date of the current agreement so that a claim could then be made to combine the two agreements. That course of events did not occur. Mr Watt testified that the ACFOs now wish to be included in the proposed operational staff agreement.

[31] It seems clear that various claims have been made on the ACFOs behalf in the recent enterprise bargaining discussions. The MFESB submitted that those claims raise matters which affect ACFOs only. Claims relating to bonuses, salary relativity with executive levels in the Victorian Public Service and workload were referred to. It was submitted that the 160 page log of claims submitted by the UFUA does not contain any claims relating to the special circumstances of ACFOs.

The submissions of the UFUA

[32] The UFUA submitted that the tribunal should place great weight on the views of employees, which overwhelmingly favour the inclusion of Commanders and ACFOs in the scope of the proposed operational staff agreement. Reference was made to the terms of s.3(e) of the Fair Work Act, which is part of the general objects, and to s.171, being the objects of Part 2-4 of the Fair Work Act. It was submitted that the concepts of freedom of association and collective bargaining include the right of employees to organise and bargain as they choose. In a related submission the UFUA contended that the references to the concept of fairness in s.238 should be read in conjunction with the object in s.3(a) of “providing workplace relations laws that are fair to working Australians”. In this context it was said that there is “a sound legislative imperative to accord the views of employees significant weight”. It was also submitted that because of their operational responsibilities Commanders and ACFOs should be covered by the same agreement that applies to operational employees generally and that the scheme of the Fair Work Act requires a preference to be given to agreements that cover as much of an enterprise as possible.

[33] The UFUA also drew our attention to, and relied upon, the following conclusions in support of its application:

[34] It is appropriate to also summarise the UFUA’s submissions in response to the MFESB application, noting that implicit in that application is the proposal that Commanders and ACFOs should each be covered by a separate enterprise agreement. It will be apparent that in some but not all respects the UFUA submissions replicate the submissions made in support of its own application, but viewed from a different perspective.

[35] The UFUA submitted, in response to the MFESB’s application, that the majority of all ranks wish to be covered by one agreement and it would be unfair to require three separate agreements, that a significant number of terms and conditions are common for all ranks covered by the UFUA application, it will be more efficient to have one common set of negotiations rather than three, if there are some concerns about being outvoted the majority of Commanders and ACFOs do not share them, attempts to negotiate separate agreements in the past have led to disputation and attempts to negotiate a separate agreement for ACFOs have been unsuccessful.

[36] As additional considerations favouring its application over the MFESB’s, the UFUA submitted that the number of agreements that would need to be negotiated and renegotiated on an ongoing basis would be minimised, where appropriate the interests of particular ranks could be dealt with by smaller negotiating groups as part of the overall negotiations and that because employees will perceive one agreement as a fair outcome, industrial harmony and increased productivity would result.

The MFESB submissions

[37] The MFESB contended that on its view of the legislative scheme, the UFUA places too much emphasis on the views of employees. It submitted that the introductory words of s.3 and the terms of s.171 require that fairness be achieved through a balancing of considerations including flexibility for business and productivity. It denied the suggestion that the orders it seeks are inconsistent with the terms of Part 3-1 of the Fair Work Act relating to the protection of freedom of association.

[38] The MFESB submitted also that the bargaining process would be less efficient if it was structured to include groups with different interests and that the achievement of productivity benefits would be less likely from such a process. It stressed differences in the “roles, functions and interests” of Commanders and ACFOs as between each other and the operational ranks generally. It referred in particular to working hours and mobility provisions, noting that no ACFOs and only some Commanders work on shift rosters, and that Commanders and ACFOs work across zones and are not station-based.

[39] Submissions and material were also advanced relating to the detail of the bargaining process. It was contended that negotiating separate agreements would promote efficient resolution of specific issues and that there would be fewer bargaining representatives and fewer issues. The MFESB submitted that if the UFUA application was granted, the current negotiating arrangements, which all agree are neither efficient nor fair, would be entrenched. It maintained that specific groups should have control over the negotiations of their terms and conditions and pointed out that Commanders constitute a little over three percent of operational employees and ACFOs less than one percent.

[40] The MFESB also submitted that the ACFOs and Commanders have managerial roles which distinguish them from other operational employees. This submission is illustrated by the following passage from the MFESB’s written submissions:

[41] In similar vein, the MFESB relied upon the status and responsibilities of Commanders and ACFOs as senior operational staff under the MFB Act including the power to lay charges for breaches of the MFB Act and Regulations and the power to require employees to undertake a medical examination.

[42] Finally, the MFESB referred to the productivity benefits that would result from separate agreement coverage. It submitted that separate coverage would support the distinct role of senior managers and lead to a situation in which “they will have confidence to make decisions and take responsibility for matters for which they are accountable. Separate agreements for ACFOs and Commanders will allow these employees to operate without the conflict that may arise from a shared industrial instrument”. The MFESB submitted that “the potential for common industrial arrangements to lead to a conflict of loyalties for managerial staff has long been recognised”. In this regard we note the evidence of DCFO Wright that the CEO had formed the view that the MFESB is “at risk of becoming a dysfunctional organisation in which roles were duplicated and managers lost the ability to make decision because of a lack of clarity and understanding about what their role entailed”. 13

Submissions of other parties

[43] We heard submissions from a number of other parties, namely: the ACTU, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Industry Group (AiGroup).

[44] The ACTU made submissions concerning the construction and application of s.238 of the Fair Work Act and contended that the objects of the Fair Work Act and international law are relevant. It submitted that the prerequisites to an application for a scope order, those matters set out in ss.238(1)-(3), involve little requirement or scope for lengthy contested evidence. It was said, for the most part, these matters call for subjective evidence. As we will later indicate, there was little serious argument that the prerequisites in this case have not been met in relation to both applications.

[45] In referring to the considerations set out in ss.238(4) and (4A), the ACTU submitted that each involved an objective assessment and the exercise of discretion. The discretion should be exercised bearing in mind that a scope order is not directly enforceable, unlike other orders, but non-compliance will impact on the approval process pursuant to s.187. It was submitted that ss.187(2) and 228 guide the exercise of discretion required by s.238, as indicated by the following passage from its submissions:

[46] The ACTU submitted that concepts of freedom of association and collective bargaining should be understood in the context of relevant ILO instruments and relevant decisions of courts and international bodies. Reference was also made to provisions in Part 3 of the Fair Work Act, designed to enhance and protect freedom of association, and to provisions in the Fair Work (Registered Organisations) Act 2009 which require unions to pursue the interests and wishes of their members. Finally, observations were made concerning the operation of the provisions, the ACTU concluding with the following statement:

[47] APESMA urged us not to make any global findings in relation to managerial employees. It submitted that we should consider whether the management levels in issue in this case are “inherently organisationally distinct” from the employees they manage. That question should be answered by reference to the relevant facts and circumstances before us. APESMA supported the ACTU’s submissions that s.238(4) must be read in light of the freedom of association provisions. It also supported the UFUA application on the basis that the fact that managers wish to be included in the collective agreement is an indication that their inclusion would promote the fair and efficient conduct of bargaining.

[48] AiGroup’s submissions focused on the statutory framework and developed a number of key points. One of the main contentions was that while the tribunal’s power to make a scope order can influence the bargaining process, an order cannot require that the negotiating parties enter into agreement with a particular scope. This contention is based on the terms of ss.228 and 255. Section 228 provides that parties cannot be forced to make concessions or to reach agreement on particular terms. Section 255 prevents Fair Work Australia from making an order which regulates the content of an agreement. AiGroup urged a conservative approach to the making of scope orders, arguing that a liberal approach will undermine the bargaining process in general.

[49] It also submitted that, contrary to the ACTU’s submissions, the effect of a scope order on the bargaining process can be very significant. In the absence of agreement between the parties that the tribunal should make a determination, the primary circumstance in which an order should be made is one in which the tribunal forms the view that in the case of one party to the negotiations the scope of agreement being sought is an unfair one. Where each of the bargaining parties seeks a scope which is fair, Fair Work Australia should not interfere with the bargaining process by making a scope order. In amplifying this view of the operation of the section, AiGroup submitted that the requirements in s.238(4)(b) that an order promote the “fair and efficient conduct of bargaining” should be read so as to make fairness an indispensable element.

[50] AiGroup also took issue with the submissions of the ACTU and the UFUA concerning the weight to be accorded to the views of the employees. In particular, AiGroup submitted that the outcome of an application could not be determined based on the generality of employee views. An employer which contends for a scope which differs from the scope employees’ support is not acting in any way contrary to the principles of freedom of association found in the statutory regime. Finally, AiGroup listed a number of factors which in its submission should be taken into account in determining an application for a scope order. Those factors included the way in which the employer has chosen to organise the enterprise, the nature of the work of particular employees, their role in the organisation and their relationship to other employees who will be covered by the agreement, the effect of any order on managerial effectiveness, the industrial history including award and agreement coverage, the views of the employer and employees and a number of other factors. AiGroup also submitted that before making an order the tribunal should consider whether the applicant has explored all reasonable alternative courses, including an application under s.248 that Fair Work Australia deal with a bargaining dispute. Although AiGroup did refer to aspects of the bargaining regimes in the United States of America and the United Kingdom, we do not understand that it was relying in any significant way on those aspects.

Findings and conclusions

[51] We have set out the relevant statutory provisions earlier and it is not necessary to do so again. Section 238(1) provides that an application may be made for a scope order if a bargaining representative has concerns that bargaining is not proceeding efficiently or fairly and the reason is that the representative considers that the coverage of the agreement will not be appropriate. We have no doubt that these requirements are fulfilled in relation to each application. The applications are in substance a mirror image one of the other and there is no evidence suggesting the applicants do not have the relevant concerns.

[52] Section 238(3) prohibits a scope order application unless the applicant bargaining representative has given written notice of its concerns to the other relevant bargaining representatives, has given time to respond and considers that the other representatives have not responded appropriately. It is apparently common ground that these requirements have also been fulfilled and we so find. We now turn our attention to the criteria for the granting of a scope order. Those criteria are in ss.238(4) and (4A). In doing so it is necessary to make some preliminary comments about a number of submissions concerning the exercise of the discretion conferred on Fair Work Australia by those sections.

[53] As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.

[54] In its submissions AiGroup sought to limit the circumstances in which an order might be made. We refer in particular to the submission that a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair. That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so.

[55] The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.

[56] We disagree with the UFUA’s suggestion that as a matter of statutory construction preference ought to be given to agreements that cover as much of an enterprise as possible. Section 238 permits a scope order which does not apply to the whole enterprise. In such a case the tribunal, in deciding whether the group is fairly chosen, must take into account whether the group is distinct in one of three specified respects. It may follow that if the group is not distinct in one of those respects it may not have been fairly chosen, but it does not necessarily follow in all circumstances. For present purposes it is not necessary to speculate upon the circumstances in which the conclusion might not follow.

[57] Section 238(4A) provides that if the scope order will not cover all of the employees of the employer, the tribunal must, in deciding whether the group was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. We shall deal with this question first, since it is clear that neither party seeks an order which would cover all of the MFESB’s employees.

[58] Referring to the criteria in s.238(4A), the UFUA submitted that the employee ranks of Recruit to ACFO inclusive are a distinct group within the MFESB because they all work within the Metropolitan Fire District or all attend operational incidents within the district. The majority are normally located at a fire station. Those employees who are not come from station backgrounds and often return to station work. It was submitted that operational employees are an operationally distinct group because they perform the operational work of dealing with fire, rescues and emergencies and work within a sequential rank and progression system. The group provides a highly organised and structured operational response to incidents and alarms and in all cases a direction to attend an incident takes absolute priority. Finally, it was submitted that the ranks in question are organisationally distinct because their functions differ from those of all other employees of MFESB. It was said that there is no organisational basis for distinguishing between the ranks of Commanders and ACFOs and other operational employees. Almost all ranks have some supervisory or managerial responsibility in relation to lower ranks. In this connection reference was made to evidence indicating that Senior Station Officers frequently work as Commanders on a temporary basis and that Commanders regularly perform the work of ACFOs.

[59] In relation to the matters dealt with in s.238(4A), the MFESB submitted that Commanders and ACFOs are an organisationally distinct group. It emphasised their managerial roles and their functions as senior operational staff under the MFB Act.

[60] We accept, as submitted by the UFUA, that s.238(4A) should be interpreted in the context of the Fair Work Act as it now stands, and not by reference to the construction attached to similar words in earlier legislation. The words should be given their ordinary and natural meaning. Commanders and ACFOs have much in common with the operational ranks below them. They are part of a group characterised by a requirement to attend operational incidents such as alarms of fire, rescues and so on. Without undervaluing the critical importance of operational work, however, the amount of time Commanders and ACFO’s spend attending operational incidents is in relative terms quite small. It is relevant also that they only attend incidents of a more serious kind and they are likely to be responsible for the management of the incident. Apart from their operational responsibilities the two ranks concerned have very significant managerial responsibilities in the MFESB organisation. In our view these duties are qualitatively different from the duties of Senior Station Officers and the ranks below them which are primarily operational. We find that employees of the rank of Commander and of the rank of ACFO constitute a distinct organisational group for the purposes of s.238(4A). Whether they could be further divided into two distinct organisational groups is not a matter of direct concern. We also find that all of the ranks up to and including Senior Station Officer are a distinct operational group. What separates the groups is the extent of their operational responsibilities in one case and the level of their managerial responsibility in the other. While these findings are relevant, in considering whether to make an order we must be satisfied of the matters specified in s.238(4).

[61] It can be seen that s.238(4) specifies four matters of which Fair Work Australia must be satisfied before it can make a scope order. We deal first with s.238(4)(a). We have concluded that the UFUA and the MFESB have met and are meeting the good faith bargaining requirements as required by s.238(4)(a). While the UFUA did not concede that the MFESB was bargaining in good faith, the UFUA’s position was based on the MFESB’s alleged refusal to meet in relation to the ACFOs, despite a recommendation of the Commission that it should do so. Whatever the position in relation to ACFOs, in an overall sense it is apparent that the UFUA does not accuse the MFESB of not bargaining in good faith. Any refusal by the MFESB to discuss the conditions of ACFOs is bound up with the reasons for the applications.

[62] It is convenient to deal with the requirements of ss.238(4)(b) and (c) together. It is common ground that the current agreement has expired, enterprise bargaining has stalled and that the coverage of Commanders and ACFOs is a major obstacle to the progress of negotiations for a new agreement. It is clear that operational employees generally support the scope proposed by the UFUA. Reasons given by the UFUA witnesses to support the UFUA application included that Commanders and ACFOs should be regarded as principally operational staff and be covered by the same agreement as other operational staff and that all operational staff have the same obligations and immunities under the MFB Act.

[63] The MFESB submitted that no material had been advanced which demonstrates that if the order it seeks were granted unfairness would result. While not conceding that the submission was relevant to the requirements of s.238(4), the UFUA submitted that failure to grant the application it seeks would lead to significant unfairness because Commanders and ACFOs want to be part of the one agreement, consider it would be unfair if they had to bargain separately and that there has been a long history of industrial disputation on the issue of coverage which has had unfair effects on those involved. In relation to ACFOs in particular, the UFUA submitted that ACFOs have been unable to negotiate a separate collective agreement despite years of trying, that they were treated unfairly with adverse affects on their health and that they consider the unfairness will continue unless terms and conditions are regulated by the one agreement.

[64] We accept that almost all of the ACFOs support the UFUA application. Eight of the eleven ACFOs have appointed the UFUA as their bargaining agent. The situation in relation to the Commanders is less straightforward. The evidence before us indicates that there are some 58 Commander positions but only 55 of them are filled. Thirty four of those Commanders are represented by bargaining agents other than the UFUA. None of those Commanders gave evidence or expressed a view. It is also relevant that at the time of the hearing some 15 Commander positions were being filled by Senior Station Officers who were acting up one rank. This suggests that the UFUA represents only a relatively small proportion of employees of the rank of Commander. The UFUA adduced evidence, however, that the remaining Commanders had expressed support for the UFUA’s application. The UFUA witnesses said that there was agreement between the employee bargaining representatives as to the way forward and they had a combined position. While the failure of the bargaining representatives to make any submissions does raise some questions, we have decided to deal with the matter on the basis that there is no significant evidence of opposition to the UFUA application by Commanders.

[65] It is apparent that Commanders and ACFOs identify with the lower ranks and wish to negotiate in common with them and to be covered by the same enterprise agreement. No doubt there are many standard conditions. In relation to significant matters affecting only Commanders or ACFOs arrangements could be made for those matters to be dealt with in sub-sets of the negotiations. The MFESB, on the other hand, suggested that if all ranks were to be covered by the one agreement the interests of Commanders and ACFOs would tend to be subordinated to the interests of operational employees generally and that Commanders and ACFOs would be in danger of being outvoted in areas where their interests diverged. Having found that the Commanders and ACFOs are a distinct organisational group because of their management responsibilities we are inclined to think that their negotiating interests as management employees would on occasion be very difficult to reconcile with those of operational employees generally, as the UFUA proposal for separate negotiations on some matters seems to acknowledge. It is likely that negotiations would be more productive if they were limited to the terms and conditions of Commanders and ACFOs respectively as senior management employees. While that would depend to a large extent upon the behaviour of the parties to the negotiations, we observe that the statutory provisions concerning good faith bargaining are a relevant new development.

[66] The UFUA also asked us to accept that attempts to negotiate separate agreements in the past had been unsuccessful or at least accompanied by significant disharmony. While that may be so, it might equally be said that attempts by the UFUA to negotiate one agreement covering all ranks up to ACFO have encountered similar difficulties. They are the two sides of the same issue. The history tends to favour the making of an order as a way of breaking the cycle of disputation over agreement coverage.

[67] The MFESB relied in particular on what it alleged to be a conflict of interest between management employees and those whom they manage. Speaking generally there can be no doubt that such a conflict exists. To some extent the workplace relations system is based on the potential for conflict between employers and employees. In a world of corporations the employee manager stands in the shoes of the employer for many purposes including dispute prevention and resolution and the negotiation of terms and conditions of employment. We accept the potential for an entrenched conflict of interest to arise based on managerial responsibility if agreement coverage of operational employees extends into the senior management ranks. We recognise the potential for such conflict to arise even at the lower levels of management but we have in mind conflicts of interest of a more substantial character arising at senior management levels. We also have no doubt that conflict of interest considerations may be relevant in deciding whether the making of an order would promote the fair and efficient conduct of bargaining, whether the group was fairly chosen and whether it is reasonable to make an order.

[68] It is clear that Commanders and ACFOs exercise managerial authority in relation to the ranks below them, including authority in relation to discipline and dispute resolution. There is evidence that for this reason there will be difficulties for Commanders and ACFOs if they are covered by the same agreement as other ranks. While the Commanders and ACFOs did not generally acknowledge a conflict, or thought that if there was one it could be managed, in our view it is likely that the authority of Commanders and ACFOs will be weakened to some degree by the existence of such conflicts. For example, Commanders and ACFOs might be required to represent management’s view in opposing improvements in conditions which, if conceded, would apply to them. The potential for a conflict of interest to arise in representing management’s view is real. But there are other circumstances in which a conflict of interest can arise as the following example demonstrates. There is evidence in Mr Hocking’s statement, one of the MFESB’s witnesses, that during the bargaining for the proposed new agreement at one meeting one of the ACFOs attended representing the interests of the employees while at the same meeting two Commanders attended representing the interests of the MFESB. There were a number of other bargaining meetings at which similar situations occurred. These meetings took place in a context in which the UFUA was advocating that ACFOs and Commanders be included in the proposed new agreement and the MFESB was opposing that course.

[69] The reasons advanced to support the UFUA application are based to a very large extent on the preferences of the operational employees generally and the Commanders and ACFOs in particular. Those preferences are important. So is the perception, expressed by a number of Commanders and ACFOs, that it would be unfair if they were not to be included in negotiations for an agreement covering operational staff generally. Viewed objectively, however, and having regard to what has been achieved to date, it is difficult to draw the conclusion that the interests of Commanders and ACFOs would be prejudiced if they negotiate their conditions separately. While there was a deal of information presented to us about the history of attempts to negotiate conditions for ranks above Senior Station Officer, there was little to support the conclusion that if the UFUA application was granted the conduct of bargaining would be fairer and more efficient than otherwise.

[70] On the material and submissions in this case a great deal of weight should be attached to the fact that the Commanders and ACFOs occupy senior management positions in the MFESB and for that reason their interests are distinct from, and in some respects in conflict with, the interests of the ranks below them. Despite the views expressed by and on behalf of all ranks up to ACFO, we have concluded that a scope order specifying a group comprised of employees in the ranks from Recruit to Senior Station Officer would promote the fair and efficient conduct of bargaining and that it would be more likely to be effective in that regard than a scope order specifying a group comprised of employees in the ranks from Recruit to ACFO. A group comprised of the ranks from Recruit to Senior Station Officer would also be fairly chosen. Such a group has distinct interests related to the primarily operational nature of their roles. Senior management employees, such as Commanders and ACFOs, have many interests in common with the other ranks and enjoy many of the same conditions, but the principal differentiating characteristic of their roles, rendering them a distinct group in the sense provided for in s.238(4A), is its senior management character. Given the troubled history surrounding the negotiation of conditions for Commanders and ACFOs and the negative effect that it is having on attempts to negotiate a new agreement, it is desirable that Fair Work Australia exercise its powers under s.238 and make an appropriate order. Such an order would also support attempts by the MFESB, referred to in the evidence, to improve organisational efficiency and productivity by promoting better understanding of managerial roles.

[71] Before concluding we think it appropriate to emphasise that we have decided these applications after giving close attention to the relevant evidence and submissions, as s.238 requires. To that extent the conclusions expressed in this decision are bound up with our findings on the evidence before us and are not intended to be expressions of general principle.

[72] We shall make an order in the terms sought by the MFESB.



R. Kenzie QC with A Bandt for the United Firefighters’ Union of Australia.

F. Parry SC with J McKenna for the Metropolitan Fire and Emergency Services Board.

M. Mead for the Australian Industry Group.

T. Clarke for the Australian Council of Trade Unions.

J. Kelly for the Association of Professional Engineers, Scientists and Managers, Australia.

Hearing details:

December 7, 8, 9 and 10.

 1   AG848710.

 2   AP801881CRV.

 3   Exhibit PS-1 to the statement of Paul Swain.

 4   Exhibit MFESB 4.

 5   Exhibit SW-13 to the statement of Shane Wright.

 6   Exhibit MFESB3.

 7   Ibid.

 8   Victorian Firefighting Industry Employees Interim Award 1993, V0116.

 9   Metropolitan Fire and Emergency Services Board, Inspectors Interim Award 2002, AW814790.

 10   Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia, Inspectors Agreement 2002, AG814790.

 11   AG819934.

 12   Victorian Firefighting Industry Employees Interim Award 1993, V0116.

 13   Exhibit MFESB 3 at para 51, see also paras 52 – 58.

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