DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Country Fire Authority
(C2017/554)

COUNTRY FIRE AUTORITY/UNITED FIREFIGHTERS UNION OF AUSTRALIA OPERATIONAL STAFF ENTERPRISE AGREEMENT 2010

Enterprise agreement – dispute about matters arising under the Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 - new allowances and variations to existing allowances – s.739 Fair Work Act 2009.

[1] This matter came to the Fair Work Commission by way of an application under s.739 of the Fair Work Act 2009 (the Act) by the United Firefighters’ Union (UFU) (the Applicant). The respondent to the application is the Country Fire Authority (CFA) (the Respondent).

[2] The application relates to a dispute between the UFU and the CFA under clause 38.3 of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (the Agreement) as to increases to allowances and new allowances to be paid to employees who are covered by the Agreement

[3] The Commission chaired a conciliation conference between the parties on 10 February 2017.

[4] The parties sought permission to be represented under s.596 submitting due to the complexity of the matters it would assist the Commission to deal with the matter more efficiently, permission was granted.

[5] Mr Warren Friend QC represented the UFU and Mr Steven Moore QC for the CFA.

Dispute Resolution

[6] It is not in contention that the UFU formally notified the CFA of the dispute on 23 December 2016.

[7] Clause 15 of the Agreement, Dispute Resolution, provides;

“15. DISPUTE RESOLUTION

15.1. This dispute resolution process applies to all matters arising under this
agreement, which the parties have agreed includes:

15.1.1. all matters for which express provision is made in this agreement;
And

15.1.2. all matters pertaining to the employment relationship, whether or not
express provision for any such matter is made in this agreement;
and

15.1.3. all matters pertaining to the relationship between the CFA and UFU,
whether or not express provision for any such matter is made in this
agreement, and

15.1.4. all matters arising under the National Employment Standards.
The parties agree that disputes about any such matters shall be
dealt with by using the provisions in this clause.

15.2. To ensure effective consultation between the employer, its employee(s) and
the union on all matters, the following procedure shall be followed in an effort
to achieve a satisfactory resolution of any dispute or grievance:

15.2.1. Step 1 The dispute shall be submitted by the union and/or
employee(s) to the employee's immediate supervisor.

15.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the
appropriate senior officer.

15.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The
matter shall be submitted to the appropriate delegated Industrial
Representative of the employer for consultation.

15.2.4. Steps 1 - 3 Must be concluded within a period of ten (10)
consecutive days. Disputes are to be resolved at a local level
wherever possible.

15.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be
formally submitted in writing to the Manager Employee Relations,
setting out details of the dispute and, where appropriate, with
supporting documentation. The Manager Employee Relations shall
convene a meeting of the employer, employee(s) and the union
within a period of one week (7 days) of receipt of such submissions
and endeavour to reach a satisfactory settlement.

15.2.6. Step 5 If the matter is not settled following progression through the
disputes procedure it may be referred by the union or the employer
to FWA. FWA may utilise all its powers in conciliation and arbitration
to settle the dispute.

15.3. Notwithstanding the words contained in the above sub-clause, the steps of the
procedure apply equally to a dispute raised by an employee, the union or
Officer in Charge.

15.4. While the above procedures are being followed, including the resolution of any
dispute by FWA pursuant to clause 15.2.6, work must continue and the status
quo must apply in accordance with the existing situation or practice that existed
immediately prior to the subject matter of the grievance or dispute occurring.
No party shall be prejudiced as to the final settlement by the continuance of
work in accordance with this sub-clause.

15.5. This clause shall not apply to a dispute on a Health and Safety issue.

15.6. A dispute may be submitted, notified or referred under this clause by the UFU.

15.7. A decision of FWA under this clause may be appealed. A dispute is not
resolved until any such appeal is determined.”

[8] On 19 January 2017, the UFU and the CFA held a step four meeting in which the UFU sought to obtain agreement from the CFA for certain new allowances and variations to existing allowances at which time the parties were unable to reach agreement.

[9] On 1 February 2017 the UFU made a s.739 application to the Commission pursuant to clause 15.2.6 of the Agreement requesting the Commission utilise its powers in conciliating the matter, or if requested arbitrate the matter to settle the dispute.

[10] A conciliation conference was held in the Commission on 10 February 2017. The UFU made both written and oral submissions to the Commission. The CFA sought to rely on their oral submissions and written submission by way of consent orders.

[11] The matter was adjourned to enable the Commission to consider the submissions of the parties.

The Submissions

[12] The submissions outlined to the Commission by the UFU and the CFA concerned both increases to existing allowances and new allowances. Allowances are dealt with in clause 38, Allowances and Reimbursements General, of the Agreement.

[13] Clause 38.3 provides:

“In accordance with existing practice the parties agree that any new allowance and/or variation to an existing allowances claim will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.”

[14] It is not in contention and the UFU and CFA submit the dispute is the subject of a s.739 application and is one which clause 38.3 of the Agreement explicitly provides may be submitted to the Commission for determination.

[15] The UFU made submissions that the Commission had jurisdiction to deal with the matter. In support of their application they relied on the decision of United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497. The operation of clause 38.3 of the Agreement was considered by the Full Court of the Federal Court. After having noted that the trial judge had expressed a view that cl.38.3 was limited to certain reserved matters specified in the Agreement the Court said at;

[254] We are not sure that we share the primary judge’s view that clause 38.3 was only a carve-out from the no-claims clause in respect of the pre-identified 44 matters although we accept it was certainly at least that. Its language is expressed, however, in terms which are not so confined. But whether the clause is limited in that fashion or not, we do not doubt his conclusion that the clause is merely to be read as dealing with one of the categories of disputes with which clause 15 might deal. This is for at least two reasons. First, whilst it is possible to read clause 38.3 as permitting the parties to determine allowances without ever having a disagreement about them and simply referring the issue for initial determination by the Commission, it is difficult to imagine those circumstances happening in the real world. The reference in the last sentence of the clause to the parties reserving their right to put their respective positions to the Commission rather assumes in the first place that they have differing positions which might be put.

[255] Secondly, the language of clause 15.1.1 then becomes apposite for it shows (“…all matters for which express provision is made in this agreement”) that it was intended that it should pick up and apply to other provisions in the agreement. In our opinion, clause 38.3 is such a provision.

[256] Accordingly, as the primary judge correctly held, clause 38.3 is not the source of a power to refer matters to the Commission but merely the stipulation of another category of dispute to which clause 15 applies.

[257] That being so, each of the CFA’s challenges to the clause must fail. Properly construed, the clause is part of the dispute resolution procedure which the Act contemplates should exist and in respect of which it explicitly permits resolution by the Commission. The reference, in that circumstance, to an ability in the Commission to resolve these disputes is not contrary to the scheme of the legislation. 1

[16] The UFU’s written submission was that reference to ‘determination’ in the clause is clearly a reference to arbitration, in the sense of a final determination of the merits of the dispute. The dispute is also a dispute under clause 15 of the Agreement. That clause regulates disputes about “matters arising under this Agreement”, including matters for which “express provision” is made under the Agreement: clause 15.1.1. As clause 38.3 makes express provision for disputes about allowances it is clear that clause 15 applies to the dispute.

[17] Under step 5 of clause 15, if the matter is not resolved through the disputes procedure either the UFU or the CFA may refer the dispute to the Commission to “settle” the dispute.

[18] The CFA submits, given the parties have agreed pursuant to clause 15 and clause 38.3 that the Commission should deal with the dispute, s.739 gives the Commission the power to conciliate or arbitrate the dispute.

[19] Section 595 provides;

“595 FWC's power to deal with disputes

(1)  The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2)  The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3)  The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example:    Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4)  In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example:    The FWC could direct a person to attend a conference under section 592.

(5)  To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[20] Section 739 provides;

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[21] The manner in which the Commission deals with a dispute under s.739 is in its discretion, subject to the scope of the term conferring the dispute resolution power and the limitations set out in s.739. I am satisfied the Commission has the power to deal with the dispute by way of conciliation.

[22] The UFU and the CFA made further submissions that the parties had reached an in principle agreement regarding the matters in dispute. The CFA’s submission outlined the agreement reached by way of consent orders. The parties made submissions to agreed proposed amendments during the conciliation. The consent position was set out in a document and provided to the Commission as follows:

“ORDER

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters' Union of Australia
v
Country Fire Authority


1. Definitions

In this Order:

Agreement means the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010;

Back-pay Period means the period from 12 August 2016 to the date of this Order;

CFA means the Country Fire Authority;

Employee means an employee to whom the Agreement applies;

All other terms are to be interpreted by reference to the Agreement, unless the context requires otherwise.

2. Increases to Existing Allowances

With effect 14 days after the date of this Order, the CFA shall increase all allowances provided for in the Agreement by an amount equal to 19% of the value of each allowance provided for in the Agreement. For the avoidance of doubt, this clause does not apply to any of the additional allowances prescribed by clauses 3-18 of this Order.

3. Senior Leading Firefighter Allowance

The CFA shall pay leading firefighters who have completed five years of service with the CFA in that position an allowance each week of 7% of the Qualified Firefighter Rate as applicable from time to time

4. Senior Fire Service Communications Controller Allowance

The CFA shall pay all Fire Services Communications Controllers who have completed one year of service with the CFA in that position an allowance each week of 34% of the Qualified Firefighter Rate as applicable from time to time.

5. Permanent Relocation Allowance

The CFA shall pay employees who are permanently relocated a disturbance allowance of not less than:

(i) $1,461.32 for each 30 minutes of additional daily travel time required, or part thereof; or

(ii) $1,461.32 for each 30 kilometres of additional daily travel distance required, or part thereof,

whichever is the greater amount, save that no allowance will be paid where the additional daily travel distance required is 10 kilometres or less.

6. Reliever Work Allowance

The CFA shall pay employees undertaking reliever work or appointed as relievers an allowance of $50 per week.

7. Difficult to Fill Location Allowance

The CFA shall pay employees working at a location outside the City of Greater Geelong, Bendigo, Ballarat or the Melbourne Statistical Division an allowance each week of 10% of their superable remuneration.

8. Representation Allowance

The CFA shall pay employees who incur legal costs or expenses in relation to their attending, giving evidence or participating in proceedings in any Commission, Court, Tribunal, or other body, where the proceeding or requirement to attend or participating in the proceeding relates to or is in the course of the employee's employment, an allowance to the value of those costs and expenses, capped at $5,000, unless the CFA approves a higher amount.

9. Road Accident Rescue Allowance

The CFA shall pay employees qualified to perform road accident rescues an allowance of $11.90 per week.

10. Hydrostatic Testing Allowance

The CFA shall pay employees involved in the hydrostatic testing of breathing apparatus and related equipment an allowance of $7.57 per shift for the entire shift during which any such duties are performed.

11. High Angle Rescue Technician Allowance

The CFA shall pay employees who have completed training as a High Angle Rescue Technician an allowance of $24.04 per week.

12. Driver Education Allowance

The CFA shall afford employees classified as LFF and above who make themselves available to provide driving training and assessment support an opportunity to obtain a certificate IV in workplace training and assessment or certificate IV in heavy vehicle driving instruction and will pay them an allowance of $16.69 per week when performing driving training and assessment support.

13. JFAIP Allowance

The CFA shall pay employees who are available to perform Juvenile Fire Awareness program or related activities an allowance of $24.04 per week.

14. State Wide Training Allowance for Instructors

The CFA shall pay any Career Instructor who is required to prepare, coordinate or assist with coordination, facilitation, training or assessment in any state wide training course as scheduled on the state wide training calendar at Bangholme, CFA Headquarters or any other recognised Fire Service Training Ground an allowance of $30.52 for each shift during which they perform such duties.

15. Relieving Allowance for Instructors

The CFA shall pay any Career Instructor who conducts any training, assessment, mentoring or validation outside their home district an allowance of $30.52 per shift during which such duties are performed.

16. Fitness Leader Allowance and Sports Voucher Allowance

16.1 The CFA shall pay fitness leaders an allowance of $24.04 per week.

16.2 The CFA shall pay all employees an allowance in the form of a sport voucher of $125 value once per year.

17. USAR and Trench Rescue Allowance

The CFA shall pay all employees qualified as Urban Search and Rescue (USAR) operators, or qualified as Trench Rescue operators, an allowance of $24.04 per week, save in cases where the employee receives an allowance under clause 96.4.1(a) of the Agreement.

18. Delayed Pay Increase Allowance

Within 28 days of this Order, the CFA shall pay each employee an allowance of $3,000.

19. Back-pay of Allowances

Within 49 days of this Order, the CFA shall pay to employees an allowance equal to the sum they would have earned pursuant to clauses 2 to 17 of this Order, had those clauses applied during the Back-Pay Period.”

[23] At the conclusion of the proceedings, the UFU gave the following undertaking to the CFA:

“The UFU undertakes to the CFA that it won’t initiate enforcement proceedings in respect of clause 19 of the proposed order for two weeks after the expiry of the time in that order.”

Conclusion

[24] The parties agreed the consent order has effect on and from the date of this Decision and shall cease to have effect when the Agreement ceases operation.

[25] The consent orders of the parties reflect that the UFU and CFA have reached an agreement in relation to the matters in dispute. I therefore determine the dispute before the Commission has been resolved and the Commission’s file will be closed.

COMMISSIONER

Appearances:

Mr W Friend QC with Ms T Sakkas of counsel for the United Firefighters’ Union of Australia (259V).

Mr S Moore QC for the Country Fire Authority.

Conciliation Conference details:

2017

Melbourne

February 10

 1   United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497 at [254] – [257]

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