Note: An appeal pursuant to s.604 (C2013/5359) was lodged against this decision - refer to Full Bench decision dated 6 November 2013 [[2013] FWCFB 8165] for result of appeal.

[2013] FWC 4814

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The attached document replaces the document previously issued with the above code on 18 July 2013.

The Decision has been refilled to correct paragraph numbering to incorporate a quote.

Melissa Nassios

Associate to Commissioner Roe

Dated 19 July 2013

[2013] FWC 4814

FAIR WORK COMMISSION

FURTHER DECISION


Fair Work Act 2009

s.739 - Application to deal with a dispute

Country Fire Authority
v
United Firefighters' Union of Australia
(C2012/2410)

COMMISSIONER ROE

MELBOURNE, 18 JULY 2013

Alleged dispute concerning the finalisation of guidelines to enable the operational use of instructors. Clause 99.16 Operational Use of Instructors and Clause 15, Dispute Resolution, of Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010.

[1] Following the decisions issued on 3 October 2012, 23 October 2012, and 29 October 2012 (PR529815, PR530503 and PR530823) the Guidelines for Operational Use of Instructors Pursuant to Clause 99.16 of the Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement) operated on a trial basis from 30 October 2012. I listed the matter for report back in May 2013.

[2] Following a conference I issued the following Directions:

[3] The CFA provided information that Instructors had not been used pursuant to the guidelines during the trial period. They advised that two requests were made during the trial period for operational use of Instructors and that the requests were dealt with in accordance with the guidelines. Upon review the CFA advised that one of the incidents was a request to fill a role not covered by the guidelines. In respect to the second incident the CFA advised that relief was sought Statewide before an Instructor was considered and it was then subsequently determined that no suitable Instructor was available. Both Instructors considered were located at Fiskville and the first was due to deliver a course and the other was uncontactable. The need was eventually met by the MFB.

[4] The UFU was of the view that unless they were provided with further information particularly about the steps taken to seek relief prior to considering Instructors and the steps taken to determine the availability of suitable Instructors they could not properly determine if there have been any instances where the guidelines have not operated consistent with the objective contained in the guidelines and therefore if any modifications to the guidelines are required.

[5] Some further information was provided in response to some of the UFU requests and a meeting of the parties did proceed. However, the UFU was not satisfied particularly in respect to the lack of detail about the recall process used. The UFU advised on 20 June 2013 that “the UFU has been unable to review the guidelines consistent with your Recommendation of 16 May 2013 as the CFA has not provided the required information under that Recommendation.” The CFA responded stating that it believed that the information required by the Statement and Directions of 16 May 2013 had been provided.

[6] A further conference on 20 June 2013 did not result in an agreement between the parties about the issue of the request for further information about the recall procedure.

[7] On 28 June 2013 the UFU advised that “As insufficient evidence was provided by the CFA as per the application of the guidelines, the UFU has nothing to add as to whether the guidelines need modification.” On 1 July 2013 I advised the parties as follows:

[8] On 9 July 2013 the UFU advised that it was unable to make any further submissions or provide evidence as to why FWC should not proceed to finalise the matter in the manner indicated. “In those circumstances, whilst reserving all of its rights, the UFUA’s position is that the Commission should “finalise the matter”.”

[9] I advised the parties in the light of this correspondence that I would proceed to determine this matter without further hearing and would consider any material provided up until noon 18 July 2013.

[10] On 17 July 2013 the CFA advised:

[11] The CFA also outlined the process it proposed to use to advise employees of the Guidelines and of a Business Rule it proposed to issue to advise how they should be implemented.

[12] On the same day the UFU advised:

[13] I make no comment on the proposed CFA Business Rule. It does not form part of the resolution of this dispute.

[14] Both parties agree that the Guidelines should now be finalised in the manner I have proposed. Neither party has requested further amendment. I am not aware that the trial revealed any instances where the guidelines have not operated consistent with the objective (set out in the guidelines) and there is therefore no basis upon which to further amend the guidelines.

[15] The Guidelines will be Attachment A to Print 530823 with the last paragraph replaced with the following:

[16] The final resolution of this dispute is that the Guidelines at Attachment A to this decision will apply to the operational use of Instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement.

COMMISSIONER

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<Price code C, PR539077>

Attachment A

Guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement

PURPOSE & APPLICATION

Provides direction when considering the operational use of Instructors

OBJECTIVES

Guidelines for the operational use of instructors are separate from provisions for operational use for the purpose of mentoring of other firefighters as part of the instructional role as provided for in clause 99.15 and Clause 99.16.1 and for the purpose of the skills maintenance and development of instructors as provided for in clause 99.19 and for the purpose of the Fiskville training facility as provided for in Clause 99.21. Guidelines for other operational use pursuant to Clause 99.16 should ensure that operational use of instructors must not compromise the following objectives:

Subject to the outcome of the review referred to in note at conclusion of this document, it is considered that the following guidelines meet those objectives.

DEFINITIONS

Instructor – External Appointment means an appointed Instructor who does not hold a CFA operational rank.

Operational Instructor means an appointed or seconded Instructor who at the time of their appointment to the Instructor role held a CFA operational rank and has completed a CFA recruit course.

APPROVED ACTIVITIES

Instructor – External Appointment

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a level 2 or 3 incident; in addition to the following;

For an instructor to undertake any of the roles identified above, they must hold the requisite qualifications and relevant endorsement from the Chief Officer.

Operational Instructors

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a Level 2 or 3 incident.

In addition, where there is a Level 2 or 3 incident and Firefighters and Station Officers are not available to perform the required roles relating to the incident, Operational Instructors may be deployed to perform those roles (which can include specialist response activities) provided that:

Notification of the use of Operational Instructors for this purpose will be provided to the UFU Office by the CFA on a case by case basis at the earliest opportunity and the notification will indicate the time and location details of the incident and the nature of the incident, and the CFA officer who gives such notification to the UFU Office shall also ensure that the CFA'S Employee Relations Unit is informed as soon as practicable of the notification given to the UFU Office.

Operational use for fire station crewing – Operational Instructors Only

Operational Instructors may be deployed to a fire station to maintain minimum staffing subject to the following conditions;

Application

Higher Duties or Relief to Operations Officer Positions – Operational Instructors Only

GENERAL

Operation and Review

These guidelines are the policy which the CFA will apply to the operational use of instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement.