Note: An appeal pursuant to s.45 (C2004/5826) was lodged against this decision - refer to Full Bench decision dated 10 March 2005 [PR956379] for result of appeal.
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170LW application for settlement of dispute
Melbourne Fire and Emergency Services Board
and
United Firefighters' Union of Australia
(C2004/2244 and C2004/3985)
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD,
UNITED FIREFIGHTERS UNION OF AUSTRALIA,
OPERATIONS STAFF AGREEMENT 2002
(AG2002/6037)
[AG819934 PR925132]
Fire fighting services | |
COMMISSIONER SIMMONDS |
MELBOURNE, 16 AUGUST 2004 |
Dispute over the application of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operations Staff Agreement 2002.
DECISION
[1] This decision concerns applications made pursuant to the dispute resolution clause of the Metropolitan Fire And Emergency Services Board, United Firefighters Union Of Australia, Operations Staff Agreement 2002 (the Agreement)1. The jurisdiction of the Commission to entertain the disputes set out in C2004/2244, an application lodged by the Metropolitan Fire And Emergency Services Board (MFESB) on 17 March 2004, was the subject of an earlier decision of the Commission on 21 May 2004.2 The United Firefighters' Union of Australia (UFU) subsequently appealed that decision, however, withdrew the appeal before it was the subject of a substantive hearing. The file was returned to the Commission as presently constituted. On 26 May 2004 the MFESB lodged a second application, and subsequently both matters were the subject of further hearing.
[2] The nature of the disputes in matter C2004/2244 were detailed in my earlier decision. In summary, they were disputes about:
[3] The disputes notified on 26 May 2004 in C2004/3985 were described in the notification as follows:
"1 Community Safety Log
1.1 The Notifier has implemented an intranet program designed to enable its employees to record safety activities and generate reports in relation to these. This implementation has occurred as a `pilot' program in four of the Notifier's fire stations.
1.2 The Respondent objects to the implementation of the program and alleges that the program has been implemented without consultation. The Respondent has also indicated that they suspect that the program may be used for the collection of industrial information.
2 Fire Safety Inspection Course
2.1 The Notifier provided the option of an individual indemnity for employees undertaking part in the voluntary training associated with the Fire Safety Inspection Course.
2.2 The Respondent sought legal advice on the nature of the indemnity and issued instructions to the employees to not sign the indemnity or participate in the voluntary training.
2.3 The Respondent objects to the nature of the Notifier's proposed indemnity and seeks an agreed indemnity.
3 Grade `Prep' Fire Education Program
3.1 The Notifier has a school education program in which employees communicate Fire Education to `prep' primary school classes. This program commenced in 1993. In 2004 the Notifier sought to improve the program and communicate these improvements to platoons via volunteer employees.
3.2 The Respondent objects to the call for volunteers and alleges that it constitutes an extra claim and seeks to have the status quo invoked.
4. SSO (Senior Station Officer) Corporate Briefings
4.1 The Notifier has proposed to implement a system of SSO Briefings in which information such as the `corporate action plan' and other issues facing the Notifier are presented to SSOs.
4.2 The Respondent informed the Notifier that the briefings were not to occur without a representative of the Respondent present. The Notifier has not agreed to this.
4.3 The Respondent has subsequently instructed SSOs that they are not to attend these briefings and SSOs have to date been complying with the Union's direction.
The nature of the above disputes is symptomatic of the more general, ongoing, disputes over the interpretation of Clause 9 and 12 of the Agreement. Four other disputes that also eminate (sic) from the dispute over how these clauses are to operate are presently before the Commission in Matter Number C2004/2244.
1. Community Safety Log
Steps 1 to 4, as set out in clauses 12.2 to 12.6 of the Agreement, were taken by the parties in December 2003 and January/February 2004. In particular:
· throughout this period, discussion and correspondence occurred between the parties in relation to the matter;
· on or about 13 January 2004, the Respondent submitted the dispute in writing to the Notifier; and
· the matter was discussed at a meeting of the Disputes Committee on 12 February 2004.
2. Fire Safety Inspection Course
Steps 1 to 4, as set out in clauses 12.2 to 12.6 of the Agreement, were taken by the parties in December 2003 and January/February 2004. In particular:
· throughout this period, discussion and correspondence occurred between the parties in relation to the matter;
· on or about 30 January 2004, the Respondent submitted the dispute in writing to the Notifier; and
· the matter was placed on the agenda of the Disputes Committee of 5 February 2004, but representatives of the Respondent were unable to attend.
3. Grade `Prep' Fire Education Program
Steps 1 to 4, as set out in clauses 12.2 to 12.6 of the Agreement, were taken by the parties in January and February 2004. In particular:
· throughout this period, discussion and correspondence occurred between the parties in relation to the matter;
· on or about 9 February 2004, the Respondent submitted the dispute in writing to the Notifier; and
· the matter was discussed at a meeting of the Disputes Committee on 12 February 2004.
4. SSO Corporate Briefings
Steps 1 to 4, as set out in clauses 12.2 to 12.6 of the Agreement, were taken by the parties between January 2004 and April 2004. In particular:
· on or about 2 March 2004, the Respondent submitted the dispute in writing to the Notifier; and
· throughout this period, discussion and correspondence occurred between the parties in relation to the matter.
At the time the matter came on for substantive hearing, commencing 12 July 2004, the MFESB pressed seven of the notified matters for determination. Those matters are:
Background
[4] The UFU position in respect of each of the claims was that the Commission did not have jurisdiction to determine them. The basis of the jurisdictional objection is to be found in clause 49 of the Agreement, headed "NO EXTRA CLAIMS". That clause provides:
"49.1 The union will make no extra claims prior to the nominal expiry date of the Agreement.
49.2 The MFESB will make no extra claim prior to the nominal expiry date of the Agreement.
49.3 The power of the Commission to arbitrate, granted by this agreement, does not extend to matters that are extra claims, or, to change defined at Clause 9 about a matter outside the scope of this agreement."
[5] Clause 9 of the Agreement is also relevant. It provides a consultative process at clause 9.3 to deal with the introduction of change. Relevantly, it provides:
"9.3.1 Proposals for change
Any proposals relating to change from either party will be provided in writing to [the] EBIC [Enterprise Bargaining Implementation Committee].
9.3.2 Alternative proposals
The parties will have the opportunity to submit alternative proposals which must be submitted in a timely manner so as not to lead to unreasonable delay.
9.3.3 Response to alternative proposals
The party proposing the change will be required to respond to any alternative proposals, indicating which amendments to the original proposal, if any, it accepts. Where the proposal has been altered, a revised proposal will be submitted for further consideration.
Written reasons for the rejection of any alternative proposals will be provided by the MFESB to the Committee.
9.3.3[4] Disputes resolution
Any dispute concerning either party under this clause shall be dealt with in accordance with the Disputes and Grievance clause of this Agreement."
[6] The Disputes and Grievance clause referred to is in fact titled Disputes Resolution and that clause provides a comprehensive procedure of four steps internal to the MFESB and a final step, subject to appeal, that includes reference to the Commission. This alternative within step 5 empowers the Commission through s.170LW of the Act to determine the matter, subject to clause 49 of the Agreement. Other avenues for determination include an agreed arbitrator "or other body or court". Arguably, if a dispute were referred to such alternatives, the constraints in clause 49 would not apply. However, it is not necessary to determine that point in these matters.
[7] I do not understand the UFU case to be based on a claim that the matters in dispute are change (as defined) "about a matter outside the scope of this agreement".
[8] The MFESB position is that none of the matters constitutes an extra claim, and thus the Commission is free to determine the matters on their merits. Subject to the exceptions set out below, it seeks to have the Commission determine that its proposals be implemented.
[9] Before turning to the individual disputes, it is convenient to deal with the jurisdictional point regarding the issue of what constitutes an extra claim for the purposes of clause 49 of the Agreement.
MFESB Submissions
[10] As a matter of interpretation of the Agreement, Mr Wheelahan, appearing for the MFESB, relied on the parol evidence rule, namely that evidence should not be admitted to contradict the plain meaning of the written language. In support of this position, he relied on the decision of Mason J in Codelfa:
"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract."3
Thus, evidence about the parties subjective intentions ought not be received, or if received, given little or no weight. It is to be noted at this point that in the course of the proceedings I declined to refuse to receive the evidence, and thus the thrust of this submission should be taken as going to the weight to be given to the extrinsic evidence advanced.
[11] Mr Wheelahan submitted that, on the plain meaning of the phrase `extra claims', the subject matter of the disputes could not properly be held to be extra claims. Reliance was placed on two decisions by members of the Commission. The first was a decision of his Honour SDP Williams in respect of AMWU v SPC Operations in which he stated:
"[3] The outstanding issue between the parties concerns the employer's unilateral decision to withdraw long prong fork lift (LPFL) drivers from an area at the factory where tomatoes, peaches and pears are unloaded for processing during the peak fruit season.
...
[13] Nor do I accept that the removal of the long prong fork lifts constituted an "extra claim" within the meaning of Clause 39 of the Agreement. There never was an obligation on the employer to use such fork lifts. The fact that it chose for a long period of time to do so did not establish such use as a condition under which work was to be performed by employees."4
[12] The second was a decision of his Honour SDP O'Callaghan in Electrolux Home Products in which he stated:
"[51] In this context I consider that the no extra claims prohibition refers to matters which form the specific entitlements or conditions of employment. Annual leave is a specific entitlement, but the means by which annual leave is arranged and taken are processes that relate to the implementation or giving effect to that entitlement. Further, there is nothing before me that establishes that a common documented or consistently applied practice predated the Annual Leave Management policy in a fashion which can be characterised as a specific condition of employment.
[52] Certified Agreements commonly contain no extra claims commitments. I have applied an approach consistent with that adopted by the Federal Court in Australia Industry Group v AFMEPKIU 2003 FCAFC 183 (Emwest) such that I consider that the no extra claim provision of the 2003 Agreement has application to Electrolux, the unions and the employees covered by that agreement and, as such, excludes either party from pursuing claims for entitlements outside of those covered by the 2003 Agreement. It would be illogical to interpret these provisions such that they prohibited any change during the life of the agreement, where those changes are consistent with the specific entitlements and nominated conditions of employment and relate to management practices associated with the administration of these entitlements or conditions."5
[13] The matters in dispute between the UFU and the MFESB do not relate to specific conditions of employment. The refusal of an employer to maintain a pre-existing arrangement is not an extra claim.6 Additionally, Mr Wheelahan placed reliance on the observation of his Honour Chief Justice Barwick in TC Whittle Pty Ltd v T&G Mutual Life Society Ltd:
"The expression "conditions of employment" is capable, in my opinion, of two possible meanings, apart from the particular context of the clause. It could mean the conditions dictated by statute or award which are consequential upon the employment of a workman: the conditions under which employment may take place. If that meaning were adopted, the consequential condition need not be a term express or implied of the contract of employment itself. On the other hand, the expression may include only the conditions on which, as between employer and employee, the employee works; in other words, the expression relates only to the terms of the contract of employment express or implied. When those terms are so largely regulated by industrial award, it is perhaps not so easy to regard them as part of the contract of employment: but, in my opinion, that is a proper use to be made of the terms of the industrial award, at least in so far as they fix wages and other employee benefits.
The relevant changes in the conditions of employment must be by statutory instrument or industrial award and, in my opinion, be general in nature, ie be operative as to all employees who fall within the area intended to be regulated. This does not mean that they must in fact be availed of by all employees or all or any employees all the time. To apply or be available to all employees who come within the classification, description or category specified in the statutory instrument or award will suffice. I express myself in this way because it seems to me to be important to recall that the average wage is not a weighted average. Thus, a general change in conditions of employment which may in fact affect some employees in the specified classifications, but not all of them, may none the less satisfy the clause. A precise effect of such a conclusion will later be seen in relation to excess fares allowance and to height money or multi-storey allowance. The terms of the exclusion paragraph, as I have read it, indicate an emphasis on the need for generality though not for universality in the relevant alterations."7
In each of the matters under consideration there is no change to entitlements, but rather, the implementation of the programs under consideration is just part of the management of the brigade.
UFU Submissions
[14] Mr Rozen, appearing for the UFU, submitted that the provisions of clause 49.3 were intended as a limit on the broad powers conferred on the Commission to arbitrate by clause 12.7. In construing a "no extra claims clause" it is necessary to have regard to the terms of the clause in question. However, four general principles concerning the construction of such clauses could be gleaned from an examination of the authorities. Those principles are:
[15] The prohibition contained in clause 39 should be construed in the light of the evidence of Mr Marshall, the UFU Branch Secretary, about the negotiation of the Agreement by the parties. Moreover, a construction of clause 49.3 in accordance with the above principles is consistent with the bargaining scheme established by the Act, as prescribed, for example by s.170MN.
[16] The relevant evidence of Mr Marshall is contained in paragraphs 3 to 13 of his witness statement,12 supported by an email transmission.13 Paragraphs 3 to 7 inclusive set out the context of the negotiations from the UFU point of view. Paragraphs 8 to 13 are as follows:
"8. In the above context, the union entered into negotiations with the MFESB for the current certified agreement, and to facilitate the union's policy, during the course of negotiations, the union proposed three methods of dealing with the issue of matters not the subject of provisions in the certified agreement:
i) All matters the MFESB wanted to negotiate would be put on the table during negotiations, resolutions reached and neither party would seek any change during the life of the agreement, nor take any industrial action; or
ii) The MFESB would be free to seek to make additional claims or seek further change about matters we hadn't yet been agreed on, but that the UFU likewise retained its right to take protected industrial action during the life of the agreement in relation to those matters. (This proposal followed the Emwest decision); or
ii) Initiatives could be introduced during the life of the agreement but only by consensus between the MFESB and UFU i.e. on an agreed basis between the parties.
9. Ultimately the MFESB was unwilling to expressly allow us to take protected action during the life of the agreement, and nor did they want to commit to "no change" during the agreement, nor change only by agreement.
10. A compromise was reached to protect the UFU's interest, and the certified agreement was drafted with interrelating provisions about:
11. These clearly reflect the parties' agreement to have the MFESB identify the claims it made as to matters it wanted to progress during the life of the agreement, and for any extra claims to be prohibited.
12. It is in this context that a proposal was put forward by the UFU in or about October 2002 which was based in part on recommendations from government. The proposal was for a clause that provided that the UFU would make no extra claims in return for the MFESB agreeing to preserve the UFU's bargaining rights in the event that the MFESSB (sic) made further claims or sought change in relation to a matter not dealt with in the Agreement.
13. In furtherance of seeking agreement on that proposal, the UFU sought that the MFESB provide a list of all items it wished to pursue during the life of the Agreement. The MFESB indicated that there were no items it wished to add to those already forming part of the Agreement. Accordingly the UFU and the MFESB agreed to make no extra claims and clause 49 in its current form was devised and agreed so as to prevent extra claims or change in relation to matters not covered or identified in the Agreement from being enforced by either party. It also served to prevent either party from having resort to the Commission to enforce such unauthorized matters."
[17] The email transmission, addressed to the MFESB's Human Resources Director, and dated 13 August 2002, was in the following terms:
"For tomorrows meeting, could you please provide a detailed list of items, which the MFESB would like to implement/pursue during the life of the next agreement.
The UFU has previously been placed in the position where from 1990 - 1996 our MFESB members did not receive any pay increases other than the Safety Net.
During the same period of approx 6 years, the MFESB implemented significant reforms and work practices.
When the UFU did request a pay increase for such reforms and work practices the response from the MFESB was that they did not justify any increase.
Of course this placed us in a position of insuring that our members good will was never re abused in the future in such a manner.
In this context, I do not believe that our request is unreasonable.
Could you please provide a draft outline before tomorrows meeting if possible?"14
[18] Mr Rozen argued that it was possible to take into account Mr Marshall's evidence in construing the meaning of clause 49 of the Agreement. Reference was made to the decision in Short v Hercus15and Australian Nursing Federation v Tasmania (ANF case),16 both of which were referred to in the earlier proceedings concerning this matter.17 In the ANF case, his Honour Marshall J discussed the circumstances in which extrinsic evidence could be used:
"Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language."18
His Honour then went on to discuss the Codelfa case. Mr Rozen concluded that the two decisions sat:
"...quite comfortably together. What the cases essentially say is that one doesn't look at the negotiations to deduct the subjective intentions of either of the parties in the negotiation. One looks to ascertain objectively determinable facts and to see the provisions of an agreement in light of what was agreed between the parties."19
[19] The decisions in Electrolux and SPC Operations were distinguished on their facts from the present Matter. In Electrolux,20 the action by the employer was merely an exercise of its rights under the relevant award. By contrast to the Agreement, there was only a requirement to consult where a decision was taken to introduce major changes that would have a significant effect on employees. In the SPC Operations case,21 there are significant differences between the agreement in that case and the Agreement under consideration in this matter, in particular, the absence of a requirement for consultation in respect of change. Furthermore, the practice under consideration was apparently one introduced unilaterally by the employer, putting it into a different category from a practice introduced by agreement.
Conclusion
[20] I am satisfied that it is appropriate to take into account the history of the negotiations of the Agreement for the purpose of construing the no extra claims commitment contained in clause 49. However, the evidence of Mr Marshall does not lead me to the conclusion claimed by Mr Rozen. In fact, the evidence satisfies me that there was no meeting of minds regarding the interpretation to be given to clause 49. Mr Marshall's evidence makes this clear in paragraph 9 of his witness statement, set out earlier in this decision.
[21] Turning then to the Agreement itself, it is clear that the Agreement recognises that change can occur during its life, that much is not in dispute. The real issue is at what point does a proposed change constitute an extra claim.
[22] In some areas the Agreement is specific, providing for wage rates, certain allowances, specific and quite detailed provisions regarding rostering arrangements and procedures, crewing levels and the like. Clearly, any attempt to change those matters would amount to an extra claim. Additionally, the Agreement specifically requires changes to HR policies to be by agreement.
[23] By way of contrast, provision is specifically made for continuous improvement:
"Subject to this agreement the parties agree to continue to work towards making improvements in efficiency and productivity and providing safe, satisfying and rewarding employment for employees covered by this agreement. Such improvements will not be at the expense of maintaining a safe working environment or reducing public safety in any way."22
Moreover, the Agreement contemplates the review of initiatives for the purpose of possible implementation in the area of community safety, using the consultative process,23 as well as contemplating technological change.24
[24] It is also to be noted that the parties have agreed about the objectives of the Agreement. This agreement is contained in clause 3, which reads:
"The objectives of this agreement are to develop a harmonious relationship between the parties including:
· gains in productivity, efficiency and cost effective delivery of services
· establishment of more varied and fulfilling jobs for employees, including agreed wage outcomes
· job security for current and future employees
· provision of a healthy and safe working environment, with due regard to the safety of employees and the public
· achieving a safer community."
[25] The context of the Agreement also makes it clear that certain change can only be implemented with the agreement of the parties. An example is the requirement that changes to HR policies must be agreed.
[26] The interpretation advanced by the UFU would effectively mean that only agreed change could occur, for in the absence of agreement the Commission would be constrained by the no extra claims provision in clause 49. Clearly, if the intention of the parties was to restrict change to agreed items in that way, then that would be an easy matter to specify, as the parties did with respect to HR policies.
[27] Taking account of the context of the Agreement as a whole, unless the proposed change contemplates variation to a specific entitlement or obligation or goes to a matter outside the scope of the agreement, then it does not amount to an extra claim for the purpose of clause 49. Of course, such change would need to be proposed in accordance with the requirements of clause 11, which calls up the operation of clause 9.
The matters in dispute
1. The OSG
[28] At the Enterprise Bargaining Implementation Committee (EBIC) on 5 November 2003, the MFESB proposed that some employees in the OSG could be assigned to certain positions within the minimum staffing requirements set out in clause 16 of the Agreement. Personnel recovering from injury and unable to perform full operational duties form part of the OSG. To be assigned to a position within the minimum staffing requirement would be subject to them having been medically cleared to perform the functions of the relevant position by the Brigade Medical Officer. Six positions within the minimum staffing requirements have been identified as being suitable. The full details of the positions are identified in Attachments A and B to exhibit D5.
[29] The minutes of the EBIC disclose that the UFU representative expressed concern at the proposal and requested written advice of the proposal. That advice was forwarded on 19 November 2003. Mr Marshall, in his evidence, indicated his intention to attend the next meeting of the EBIC in order to oppose the proposal. It would appear that the December meeting was cancelled, and the next meeting was scheduled for 28 January 2004. In the meantime, the MFESB directed a member of the OSG to carry out duties of one of the positions on the minimum staffing requirement. He refused to carry out the duties and the matter became the subject of a grievance that was processed under clause 12 of the Agreement.
[30] The MFESB contends that there was no requirement that the officer perform any duties outside the scope of his employment or the Agreement, and the placement of an injured employee into a position he or she is declared fit to perform is consistent with its obligations under the Accident Compensation Act 1990 (Vic) and its own rehabilitation policy. I am satisfied that this is the case. The MFESB now wishes to have the Commission determine the matter by permitting it to implement the proposal.
[31] The proposal does not amount to a change to a specific entitlement or obligation, nor is it a matter that goes beyond the scope of the agreement. It is not, therefore, an extra claim.
[32] However, it is clear that until the proposal was put to EBIC in early November 2003, the policy of the MFESB had been not to use OSG personnel in positions identified as minimum staffing requirements. It may be that on rare occasions that policy was breached. I am satisfied that the proposal did amount to a change for the purposes of clause 11, in that it was a change that would "have an impact on employees regarding work practices or location...".
[33] In those circumstances, it was necessary for the MFESB to provide its proposal for change in writing (see clause 9.3.1 set out earlier in this decision). It did not do so in November 2003, and before the EBIC could consider the written proposal, it introduced the change. It would appear that the UFU have approached the matter on the basis that the proposal constitutes an extra claim. In view of my conclusions on that aspect, it is appropriate that the matter be referred back to EBIC for the UFU to put forward any alternative proposal in accordance with clause 9.3.2 and for the matter then to be processed in accordance with the Agreement. If it remains in dispute it can be dealt with as a new matter. The specific grievance concerning the officer directed to perform duties as part of the minimum staffing requirements should be adjourned pending the outcome of that process.
2. No. 2 Station
[34] The MFESB standard operating procedure number 150.1.19 establishes guidelines for what is known as move up appliances. The process of move up was described by Mr Murphy, Deputy Chief Fire Officer and Director Operations of the MFESB, in the following terms:
"Appliances are regularly required to move between stations to act as stand-by appliances in the event that all other fire trucks have left a station to fight a fire or undertake off-site training. We refer to this process as `move up'. In essence, if one station is depleted because of the need to attend a fire event or training, then a fire truck and crew are moved from a nearby station to that station to act as a backup crew."25
The standard operating procedure referred to provides that "where possible, appliances from FS2 and FS35 are to be used only when all other stations have been exhausted".
[35] The MFESB proposed that the restrictions on the move up of appliances from station 2 should be removed. This proposal was the subject of discussion at a sub-committee of EBIC and it was subsequently reported to EBIC at its 5 November 2003 meeting that the matter had been resolved. This description of events is disputed by the UFU, and when a pumper appliance was moved up to another station, a grievance was lodged by Mr Scully, a firefighter based at 2 station and a member of the UFU committee of management. That grievance has been processed through the grievance procedure and awaits the determination of the Commission.
[36] The basis of the objection by the UFU is the lack of consultation regarding the change, the claim that it constitutes an extra claim and concerns about the extra workload imposed on employees at 2 station.
[37] I am satisfied that the change involved in moving up an appliance from 2 station is a change of the kind envisaged by clause 11. I am also satisfied that the MFESB has followed the procedures specified in clause 9, although I have some doubts about whether the proposal was put forward in writing to the EBIC. However, because the proposal was the subject of significant discussion at sub-committee level, I do not consider this to be anything more than a technical breach, if it be a breach at all.
[38] The proposed change does not amount to a change to a specific entitlement or obligation, nor is it a matter that goes beyond the scope of the agreement. It is not, therefore, an extra claim.
[39] Mr Scully's evidence regarding the merits of the matter can be summarised as follows:
[40] It is to be noted that the main concern of Mr Scully is the effect of the change on response times. This issue is primarily the responsibility of the MFESB's Chief Officer, a responsibility he has delegated to Mr Murphy. Mr Murphy's evidence on the matter was to the effect that it was important that the MFESB be able to use all appliances as operational demands require, and that the move up workload be shared equally amongst all stations.
[41] I am satisfied that there is no justification for the Commission to interfere with the operational decision taken by Mr Murphy. Nothing that has been put forward in respect of this matter suggests that the decision is harsh, unjust or unreasonable in its impact on the employees. Matters of risk are matters for the MFESB's Chief Officer or his delegate, and I am satisfied that the concerns expressed by Mr Scully have been taken into account.
[42] I therefore determine that the MFESB decision be implemented.
3. Skills Maintenance
[43] The MFESB characterised this dispute as being simply about the method of recording skills maintenance by firefighters. Previously, this information was recorded at zone level manually on a card system. It is now proposed that it be collected electronically on a computerised system using the MFESB's internal intranet. The UFU objected to the proposal and lodged a grievance on 11 February 2004. The relevant extract of that grievance reads:
"The grievance is in relation to the unilateral introduction of the skills maintenance program, inclusive of the recording of skills maintenance by officers.
As you would be aware, this is a new requirement and indeed an intricate part of the skills maintenance program that is currently in dispute."26
[44] As indicated in the grievance notification, the UFU sees the dispute as something much wider. It claims that the skills maintenance project and the associated evaluation program was an initiative of the Training Review Group, a joint MFESB-UFU committee. The review and development of training programs is regulated by the Agreement, which at clause 35, requires such matters to be subject to the agreement of the parties. In this context, agreement was reached that a skills maintenance pilot program would be conducted in the MFESB Northern Zone, and be subject to evaluation before being implemented elsewhere.
[45] The UFU contends that, in those circumstances, a requirement to introduce one component of the skills maintenance pilot program would breach clauses 9, 11 and 35 of the Agreement. Moreover, it would involve the following extra claims:
"_ Failing to accord the UFU and its members the benefit of clause 11 of the Agreement in introducing change before the clause 9 procedure had been completed;
_ Seeking to introduce change in a manner other than agreed by the parties in or about 2001;
_ Assigning new work and work procedures to Operational Staff which are not specifically authorized by the Award or the Agreement (and in particular clause 35), being the increased requirement to record Skills Maintenance Activities, the entry of such information into a computer system and the resultant increased requirement to undergo training."27
[46] The evidence of Mr Carlisle discloses that the skills maintenance program was the subject of discussion on a number of occasions at the EBIC. It is not clear whether a written proposal regarding the implementation of the recording program was ever submitted. The proposal does appear to involve a change of the kind envisaged by clause 11 and clause 9, in that, it is a change to work practice. However, I do not accept that it is a matter covered by clause 35, as clause 35 is directed to skills acquisition, not skills maintenance.
[47] Both the UFU and MFESB agree that the existing system of skills maintenance recording is either not happening or is otherwise deficient, and that continuation of this situation is unsatisfactory. There are sound operational and efficiency reasons justifying the implementation of the computerised recording system. There has also been a progressive evaluation of the recording component of the skills maintenance system, and agreed changes have been made to it.
[48] In the circumstances, I consider the apparent failure of the MFESB to put forward a written proposal to the EBIC to be a technical breach of the requirements of clause 9, but, in the light of the extensive consultation in respect of the matter, it is of little consequence. I do not consider the proposal to be an extra claim, as it does not change the employees' conditions of employment, as the requirement to record the maintenance of skills has existed for some time. What is proposed alters the way in which the record is made.
[49] In the course of proceedings, the MFESB indicated that, if it was determined that it could proceed with the implementation of the system, it would undertake to carry out an evaluation of the database in consultation with representatives of the UFU after twelve months following implementation. During the twelve month period, the MFESB would continue to progressively develop it and consult with the UFU about improvements.28 Additionally, the MFESB had previously given an undertaking that the introduction of the program would be undertaken by operational employees.29
[50] Subject to those undertakings being implemented, I consider that the MFESB should be permitted to extend the computerised system of skills maintenance recording to all zones.
4. Community Safety Log
[51] The MFESB seeks a determination from the Commission that the MFESB be permitted to implement the pilot community safety log program to stations 14, 18, 22 and 43 for a period of at least six months and that an evaluation of that program take place within three months of its conclusion.
[52] The community safety log is a component of a Station Based Community Safety Plan (SBCSP). The background to the SBCSP and its relationship to the community safety log was described by Mr Nicholson, the MFESB Director Community Safety, who holds the rank of Deputy Chief Fire Officer:
"[The] plan is designed to better assess the risks of the various `maintenance areas' ie, the area for which the fire station has responsibility.
Four stations were selected to trial this Plan. The trial involved giving the stations a range of statistical information relating to their maintenance area. This information comprised ABS information and other statistical information collected by the MFESB. The intention of the Plan is that stations will be able to analyse the information presented to them and determine the risk profile of their respective maintenance area.
The MFESB also sought to combine this information with information collated via a Community Safety Log (CSL). The CSL will contain information on the community safety activities which the employees of the MFESB undertake. Community safety activities are activities such as:
· fire education programs;
· observed evacuations;
· safety campaigns; and
· smoke alarm campaigns."30
His evidence went on to indicate that firefighters were required to complete written records of community activities, but that it is an ad hoc practice with varying levels of compliance. He advised that the:
"...synergising of the data collected from the SBCSP and the CSL will allow the MFESB to better understand the communities in each maintenance area and determine if it is managing the risk in that area as well as it can."31
[53] A written proposal regarding the community safety log was presented to the EBIC on 18 December 2002. At a subsequent meeting of the EBIC, a trial of the SBCSP, incorporating the log was proposed. The trial, without the implementation of the log, commenced "in or about" February 2003.32 It appears that the implementation of the log component of the program was commenced in January 2004.33 Soon after, the UFU lodged a dispute and grievance in the following terms:
"The program/pilot is in relation to the Community Education Log with involves logging/ time and motion studies regarding the performance of Community education activities by MFESB personnel.
As you would be aware this is not a matter that the MFESB raised during negotiations no(r) is it a matter contained within Appendix 1 of Certified Agreement.
There has been absolutely no consultation on the issue with the union, which is a serious matter in itself and indeed an extra claim of this magnitude is something not envisaged by the agreement." 34
[54] That grievance has been the subject of unsuccessful discussion between the parties and an unsuccessful conciliation before the Commission.
[55] It seems abundantly clear that the proposed change was presented in writing to the EBIC. No alternative proposal appears to have been presented pursuant to clause 9.3.2 of the Agreement. I am satisfied that the proposal does not constitute an extra claim, for clause 19 of the Agreement, headed Community Safety, clearly contemplates consideration of initiatives other than those mentioned in Appendix A of the Agreement. Clause 19.3 provides:
"The parties will review any other initiatives as they arise pursuant to Clause 9 with the purpose of ensuring the possible implementation of these new initiatives is undertaken in a consultative and pro-active manner ensuring existing resources and delivery standards are maintained."
[56] I am satisfied therefore that the proposed pilot community safety log does not represent an extra claim, both because it is an initiative envisaged by the Agreement and because it does not represent a change to an existing entitlement or obligation.
[57] A major concern of the UFU about the pilot program is the use to be made of the information gained from the log by the MFESB. In particular, it is concerned that the information can be used to denigrate the work of firefighters, or that it can be used in disciplinary proceedings. The MFESB, writing on 13 February 2004 to the UFU, confirmed that the information obtained would not be used for industrial purposes.35 However, following discussions between the parties, the MFESB, in response to correspondence from the UFU stated:
"Your letter requires that such data will not be used for work performance issues. I can confirm that the purpose of the Community Safety Log is not for performance or counselling issues, however we cannot discount that such data/information may be utilised in circumstances where individuals are subject to work performance issues."36
[58] This position was clarified by Mr Nicholson in an exchange with the Commission:
"And if you have got a platoon not pulling its weight - - -?---Yes, yes.
- - - then the leader of that platoon - - -?---Would be asked why.
Yes?---Yes.
And may be disciplined as a consequence?---If he didn't respond. If it got down to the stage where he was refusing to do - he was directed, then that could be the case, but they have a range of activities that are done every day by every station. You know, they don't sit around and do - and refuse to do work.
Yes?---So it is an unlikely circumstance. We certainly might use it to prioritise the workload differently in discussion with the officer, but the officers at the station are key parts of the plan."37
[59] That position seems to me to be eminently reasonable, and does not provide any basis for the Commission to intervene. However, at this stage what is being proposed is a pilot program, and the parties will no doubt be evaluating the outcome of the pilot in a manner consistent with their obligations under the Agreement. It is therefore appropriate that the alternative position advanced by the MFESB be adopted, namely that it be entitled to implement the community safety log pilot program, but that:
"Data recorded on the Community Safety log in the course of the pilot will be destroyed at the conclusion of the evaluation following the pilot. The question of the use of Community Safety Log data will be further considered at such evaluation stage."38
I so determine.
5. Fire Safety Inspection Course
[60] Appendix B to the Agreement, which does not appear to be referenced in the body of the Agreement, contains descriptions of two potential community safety programs. One of those programs is a Fire Safety Course. The provisions reads:
"MFB Station Officers complete the accredited FSIC which qualifies them to inspect and issue Essential Services advisory notices to building owners in the case of identified fire safety deficiencies. These inspections will be conducted by Station Officers who have volunteered to undertake special training after legalities have been resolved."
[61] The MFESB submitted that firefighters employed by it have conducted building inspections on an ad hoc basis in the past, and that it is the normal business of stations to undertake inspections in the maintenance area surrounding their stations. The nature of the inspections was described in submission:
"Inspections will generally cover issues of egress from the building in the event of a fire, signage relating to exits and the maintenance of sprinkler and other fire safety systems. During an inspection the officer will issue a "Maintenance Advisory Notice" to the owner of the building being inspected, if required.
If there are any issues to be followed-up with regards to the terms of the Notice then the local station is required to enlist the assistance of the Structural Fire Safety Department. The staff in this Department have greater statutory powers under the Building Act and Regulations and are able to work with local councils and other bodies to resolve any outstanding fire risks."39
[62] An accredited course for the officers involved has been agreed by the parties. Twenty nine officers have completed the course, a further 30 have completed the off-shift component but have not completed the final on-shift component, apparently as a consequence of a UFU instruction. Participation in the course is voluntary.
[63] At least part of the dispute between the parties relates to the form of legal indemnity to be given to the officers who undertake inspection duties. The wording of the indemnity and whether it is to be incorporated in the Agreement, are the matters in issue.
[64] Additionally, Mr Marshall identified the following matters as unresolved and it was asserted they amounted to extra claims:
· The workload which would be imposed on Officers as a result of being qualified to conduct inspections;
· the flow on requirements on officers as a result of conducting such inspections;
· the requirement for appliance crews to attend inspections; and
· adequate protection being provided from legal action.40
[65] It would appear that most of the discussion concerning the course, and the involvement of officers in inspection duties, has taken place outside the EBIC, although clearly the content of the training course has been agreed. I do not consider that the dispute concerning indemnity should be a barrier to officers undertaking or completing the course in view of the fact that others have completed the course, apparently without problem.
[66] The MFESB proposes that the dispute regarding the form of indemnity be determined by the Commission as follows:
"That each party submits its most recent terms of its legal indemnity (as contained in exhibit "PJM-35" to the affidavit of Mr Marshall) to a senior member of the Victorian Bar with instructions to settle the indemnity into one document.
That the proposal to incorporate the indemnity into a certified agreement between the parties be rejected."41
[67] As the Fire Safety Inspection Course comes within the scope of Community Safety, it does not represent an extra claim, as it amounts to an initiative within the scope of clause 19.3, with the additional feature that it was identified as a potential initiative at the time. There is no requirement for such initiatives to be agreed. Moreover, the proposal does not amount to a change to an existing entitlement or obligation.
[68] In respect to the dispute concerning the indemnity, I am satisfied that the proposal by the MFESB to refer the form of the indemnity to a senior member of the Victorian Bar for settlement is appropriate, and I so determine. Whether or not the final form should be included as an amendment to the Agreement is a matter that should await the outcome of the reference. As to the other matters raised by the UFU, I consider that the detail of those objections should be reduced to writing and provided to the MFESB within seven days. In its turn the MFESB should produce a written response within seven days. The parties should then meet with a view to resolving any remaining differences. In the event that they are unable to reach an agreement I will convene a conference of the parties at the earliest possible date with a view to conciliation. Leave is reserved to the MFESB to further pursue this matter for determination should it be necessary.
[69] While the above steps are being taken the UFU should withdraw its advice to its members not to undertake or complete the agreed training.
6. Senior Station Officer Briefings
[70] The MFESB proposes that briefing of Senior Station Officers (SSO) be undertaken at a central level, rather than at zone level. It would also appear that the nature of the briefings will be altered, as they have been "identified as benefiting from closer and more frequent contact and briefings by management."42 It appears that no written notice of this proposal was given to the EBIC. A meeting of SSO's was scheduled for March 2004, however the UFU notified a dispute on 2 March 2004 requesting that the pre-existing status quo be maintained pending resolution of the dispute.
[71] It is clear from correspondence from the MFESB that it reported the change in procedure "out of courtesy" to the EBIC and, by inference, did not regard what was happening as a change.43
[72] I consider that the proposal to move from zone level meetings to a central meeting for SSO's is a change, as defined in the Agreement, if only because it has an impact on the employees' work location and the way in which work is carried out. That being so, the MFESB is obliged, by clause 11 of the Agreement to follow the procedures in clause 9 before implementing the change.
[73] As there has not been the required consultation on the proposed change I am not prepared to make a determination on this matter at this time.
7. The `general' dispute
[74] The MFESB considers that the disputes referred to above are indicative of an underlying dispute over the application of clauses 9, 12 and 49 of the Agreement, and proposes a recommendation from the Commission to settle that underlying dispute.
[75] The UFU, correctly in my view, points out that the dispute has not been the subject of a grievance or dispute under the disputes resolution process provided in clause 12.
[76] However, the procedure adopted has been the subject of discussions in separate conciliation proceedings in the Commission. In the light of that history I am not prepared to make any recommendation at this stage. I will convene a conference of the parties to progress the earlier discussions with a view to the parties reaching an agreed position on the application of clauses 9, 11 and 12 of the Agreement, paying particular attention to the process prescribed in clause 9.3. That conference will be held at 2.15 p.m. on 19 August 2004.
The s.111(1)(g) application
[77] The UFU applied under s.111(1)(g)(iv) and (v) for the Commission to dismiss or refrain from further hearing of the matter. Those provisions of the Act provide that the Commission may dismiss or refrain from hearing or from determining (a matter) if it appears:
"(iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion is hindering the settlement of the industrial dispute or another industrial dispute; or
(v) that a party to the industrial dispute:
(A) has breached an award or order of the Commission or a certified agreement; or
(B) has contravened a direction or recommendation from the Commission to stop industrial action; or
(C) has contravened a recommendation of the Commission under section 111AA;"
[78] Section 111(2) extends the operation of s.111(1) to other proceedings of the Commission "[u]nless the context otherwise requires".
[79] The grounds for the UFU application were:
"(a) the reasons outlined elsewhere in this submissions;
(b) the MFESB's conduct in seeking through these proceedings to make claims and/or change that ought to have been "put on the table" during certified agreement negotiations;
(c) the MFESB has breached the certified agreement in the manner set out in these submissions and as pleaded in the UFUA's Federal Court proceedings;
(d) the matters that are the subject of the determinations sought by the MFESB are the subject of proceedings in the Federal Court. Proceeding further in the Commission raises the undesirable prospect of conflicting determinations of the same underlying facts;
(e) the MFESB is effectively seeking from the Commission an interpretation of key provisions of the agreement, and this is outside of the Commission's functions and currently before the Court.
[80] The MFESB opposed the application. It noted that the disputes required determination by the Commission, and that a number of them had been on foot for several years. Contrary to the UFU position it was not engaging in conduct hindering settlement of the disputes, but sought to have them determined. It rejected the proposition that it had breached the Agreement. Proceedings alleging breach are currently before the Federal Court, but no determination has yet been made.
[81] As is apparent from this decision I have not refrained from further hearing or determination of this matter, although in some cases I have not finally determined a matter. It follows that I have not granted the UFU application. I am not satisfied that the MFESB has engaged in conduct of the kind specified in s.111(1)(g)(iv), and if I am wrong in that conclusion I do not believe that it would be an appropriate exercise of my discretion to leave the disputes unresolved. The issue of breach identified in s.111(g)(v)(A) has either not been established to the extent that would justify me exercising the discretion in the manner sought by the UFU; and where I am satisfied that breach is apparent, I am satisfied that such breach is of a technical nature and does not warrant the exercise of the discretion.
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3 Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337, 352.
4 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v SPC Ardmona Foods Limited re Food Preservers' Award 2000 and SPC Operations Limited Certified Agreement AMWU (Food & Confectionary Employee) 2001, PR925266, 3 December 2002.
5 Electrolux Home Products Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, PR945299, 5 April 2004.
6 Re Cram; Ex parte New South Wales Colliery Proprietors Association (1987) 163 CLR 117, 136.
8 Re Health and Community Employees Psychologists (State) Award (Industrial Relations Commission of NSW, Wright J, 11 May 1999, unreported), 19-20.
9 ETU (NSW Branch) v Nationwide News (1995) 92 IR 365, 370.
11 Ibid, 370-371; Burswood Resort (Management ) Ltd v ALHMWU [2003] WASCA 102, paragraphs [25]-[28].
17 Print PR946990, 21 May 2004.
20 Electrolux Home Products Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, PR925266, 3 December 2002.
21 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v SPC Ardmona Foods Limited re Food Preservers' Award 2000 and SPC Operations Limited Certified Agreement AMWU (Food & Confectionary Employee) 2001, PR925266, 3 December 2002.
22 Metropolitan Fire And Emergency Services Board, United Firefighters Union Of Australia, Operations Staff Agreement 2002, Clause 14.
26 Attachment H to Exhibit D5.
29 Attachment J to Exhibit D5.
30 Exhibit D11, paragraphs 20-22.
34 Attachment JMC12 to Exhibit D7.
35 Attachment M to Exhibit D5.
36 Attachment PJM52 to Exhibit R14.
38 Exhibit D14, paragraph 14 (as amended).