C3991/000, Transcript of Proceedings [2001] AIRCTrans 2075 (23 August 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8733
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C No 39910 of 2000

FIREFIGHTING INDUSTRY EMPLOYEES
INTERIM AWARD 2000

Application by the Firefighters Union of
Australia to vary re making an award as
not an interim award

MELBOURNE

9.35 AM, MONDAY, 6 AUGUST 2001

Continued from 28.5.01

PN89

THE COMMISSIONER: Any changes to appearances, please?

PN90

MR LOWE: Yes, Commissioner. If the Commission pleases, appearing with me today is our new industrial officer MR R. CRAMPTON.

PN91

THE COMMISSIONER: Yes, thank you, Mr Lowe. You are welcome, Mr Crampton. Yes, Mr Lowe?

PN92

MR LOWE: Thank you, Commissioner. Commissioner, since this matter was last before you on Monday, 28 May, the parties have met on a number of occasions to discuss further the union's application. And as a result of those discussions, which dealt almost exclusively with the construction of the proposed award, I believe that some positive progress has been made. The discussions have resulted in a number of changes to previous exhibits, L2 and L4, which reflect the UFUs attempt to deal with a number of the issues raised by the employers. And, Commissioner, if I may I wish to tender two additional exhibits?

PN93

THE COMMISSIONER: Yes.

PN94

MR LOWE: Commissioner, these exhibits, which replace exhibits 2 and 4, spell out the state of negotiations between the parties, the date and the attempts made by the union to move to a position in respect of the construction of the award which will satisfy the needs of both the MFESB and the CFA.

PN95

THE COMMISSIONER: The exhibit entitled Comparison of Provisions 2 will become exhibit L5, and the draft 4 will become exhibit L6.

EXHIBIT #L5 COMPARISON OF PROVISIONS 2

EXHIBIT #L6 DRAFT 4

PN96

MR LOWE: Thank you, Commissioner. I wish to take the Commission to exhibit L6 and probably at the commencement to say that exhibit L5, which is the comparison document, reflects the same changes which appear in exhibit L6. The changes that are made in both exhibits are highlighted by an underlining of the change and a line down the side of the page, so if we just simply look at the front page of exhibit L6, Commissioner, you will see under draft 4, figure 4 is underlined and there is a line down the side of the page by that.

PN97

I wish to take the Commission in the first instance to the change on page 5 of exhibit L6. And the Commission will there see the definition in clause 6 of an employee, and a change there has been made which refers that particular definition back to clause 3.1 of the agreement and this was a matter that was raised by the CFA in negotiations, sir, which the union took on board. The next change I wish to refer the Commission to is at page 13. And it is in the wages clause, sir, and it is just - exhibit - just in clause 13.2 and there has been a change in the title of the communications technicians to that of communications technical services officer and senior communications technical services officer, and those are changes that have occurred in recent times within the CFA, and the names of those particular employees classifications.

PN98

I wish to take the Commission now to pages 16 and 17, and I would deal with a number of clauses. And they are 15.3.3, 15.3.4, 15.3.5 and then over the page 15.3.7, 15.3.8, and on page 20, 15.7.2. And the change that has been made is the same. These were clauses which, in the current award, are found in the part that applies solely to the MFESB. There has been no intention for the parties to have that apply to any other employer. And so we have added the wording in each case, so that the clause reads:

PN99

When an employee who is substantively employed at a location the MFESB fire district...

PN100

And then the clause goes on to deal with the particular penalty or entitlement. And so we are wanting to make it very clear, Commissioner, that these particular entitlements will relate to employees that are employed by the MFESB and employed in those areas. I take the Commission to, on page 17 also to clause 15.3.9. We have made similar changes with provisions that apply to the CFA and 15.3.9 now commences - - -

PN101

THE COMMISSIONER: Yes. There is something in the back of my mind that suggests that the preferred formatting only goes to three decimal places. Is that - and then it goes (a), (b), (c), (d) again.

PN102

MR LOWE: Okay.

PN103

THE COMMISSIONER: You might need to check that but - - -

PN104

MR LOWE: Right. Yes, we will can deal with that I guess - - -

PN105

THE COMMISSIONER: Just bear with me. Can we just go off the record.

OFF THE RECORD

PN106

MR LOWE: I have taken note of that, Commissioner, and we will check the formatting as part of the ongoing process.

PN107

THE COMMISSIONER: Yes. I certainly won't reject it because of your formatting, I just draw it to your attention. It might be useful to - I think it goes - someone somewhere has gone to the readability issue and come to a view that any more than that becomes incomprehensible, and I must say - - -

PN108

MR LOWE: But in subclause 15.3.9 at the present time, this is a clause which applies in the current award in the CFA section, and we have amended it to read:

PN109

When a firefighter or station officer who is substantially employed at a location in the CFA fire district -

PN110

so it is very clear that it will only apply to employees in that particular area who are substantially located there. Now, in the CFA fire district at the present time, in the private sector we have a company by the name of Transfield and by an agreement, through an enterprise agreement, they utilise the CFA provisions because they are located in those areas and they are the most suitable ones for them.

PN111

On page 18 the Commission will find 15.3.10 and 15.3.11. The same changes have been made. And if I could take the Commission to - I have mentioned page 20 earlier on. So we have made those changes, as the Commission will see, so that we are honouring a commitment that we gave that provisions that currently apply to those employers will continue to apply. Then clause 17.4 on page 24, the Commission will find similar type wording and that is then 17.5 also, and these relate to provisions regarding rosters that only apply to the CFA district, and so we have put similar wording in there:

PN112

Employees who are substantively employed at a location in the CFA fire district ...

PN113

And they are the people that it applies - - -

PN114

THE COMMISSIONER: That is, employees not subject to a 1014 roster?

PN115

MR LOWE: Roster system, yes. And we do have - - -

PN116

THE COMMISSIONER: And is that the same formatting system as you have had in your previous awards?

PN117

MR LOWE: Yes.

PN118

THE COMMISSIONER: So the headings form part of the substantive clause, that is the point.

PN119

MR LOWE: Yes, that is right, they do. And at 17.5 we have, and the Commissioner will see in 17.5.1 we have referred to the CFA fire district in respect of the special duties roster and currently the CFA are the only ones that have a class A and A1 stations. Also the chief emergency - chief officers emergency roster again is a CFA provision. If I could take the Commissioner now to page 26 and in 17.7 and in clause 17.9 the Commissioner will see that there has been a change in the title to reflect communication technicians new title, and in 17.9 to put the word "employees" in after "protective equipment". The next page at clause 18, meal breaks, the Commission will see that there has been a change in 18.1.4 and we have provided a common clause for the hours of work and day workers that are employed by the CFA, and those are the communication technicians, the protective equipment technicians and the practical area drill operators and supervisors.

PN120

THE COMMISSIONER: That is specifically the CFA, is it?

PN121

MR LOWE: And that is specifically the CFA - - -

PN122

THE COMMISSIONER: How does that - - -

PN123

MR LOWE: - - - so that clause refers back to 17.7, 17.8 and 17.9.

PN124

THE COMMISSIONER: I see, yes.

PN125

MR LOWE: Which deals with those employees. Page - - -

PN126

THE COMMISSIONER: They are - that is not meant to be involved though?

PN127

MR LOWE: No, it will - - -

PN128

THE COMMISSIONER: It is just - yes.

PN129

MR LOWE: It is just there for the purposes of highlighting the change, Commissioner. If I could take the Commission back at this stage to page 7 of exhibit L6, the Commission will see - and I want to refer to the communication technicians, the protective equipment technicians, the practical - the pad operator and pad supervisor. We have added to those clauses in the definitions the words:

PN130

... of the CFA or as a CFA employee ...

PN131

So that it shows that people doing these particular tasks, which have these definitions and special provisions for them, are CFA employees. A similar type of work is done in the MFB, but they just simply fall under the provisions for firefighters and fire - and station officers, Commissioner. There is a number of matters that both the CFA and the MFB have to respond to the union on, as part of the discussions. There are some clauses relating to the meal allowance which we have in clauses 15.2.1, 15.2.2, and 15.2.3 on page 15 of exhibit L6.

PN132

And those provisions currently provide for similar type of entitlements for meal allowances, so we have asked for the CFA to respond to whether they would be happy with clauses 15.2.1 and 15.2.2. If they are not then our suggestion will be as the commitment is in the certified agreement that 15 - the provisions of 15.2.3, which is the current entitlement for the CFA, goes into their certified agreement. In 15.5, Commissioner, on pages 19 and 20, we have a provision relating to change of residence allowance which used to apply to the MFESB prior to award simplification. We have asked for the MFB to come back to us on that particular clause as to whether they think it is appropriate or not. Otherwise we will put a fence around that, as we have done in similar clauses that we have referred to. I wish to, probably at this stage, bring the Commission's attention to clause 15.8 on page 21, which deals with first responder.

PN133

The UFU is of the view that this particular clause can only apply to employees where the employer undertakes this particular role, and currently that is the MFESB only. The CFA have indicated that they have some concerns about the wording in its present form, in that it may have any application to them. I wish to put on transcript at this stage that it will not, unless the CFA makes that decision to go and undertake that role. However if that doesn't satisfy them we have indicated that we will discuss with them an appropriate way of putting a fence around that, as we have done in previous clauses.

PN134

Towards - on the same page, towards the bottom, at 15.10 we have a clause headed Attendance at Training Facilities, and in this particular clause we have asked the MFESB if they would consider whether they think this particular clause is appropriate to their operations, and if not again, we will provide a mechanism to exclude them from that. Likewise with clause 15.11 on the following page, we have indicated to the MFB if they don't wish to be included in the availability allowance, and I guess this relates mainly to people who are above the rank of senior station officer, and then again we would - likewise we will put a fence around that particular clause.

PN135

Commissioner, there are two other clauses which both parties - or which the - both parties need to come back to us on and that is the provisions in clause 34, which is dispute resolution. And the CFA and both the - and the MFESB are going to come back to the union with a response as to that particular clause's suitability in the form proposed. And also the CFA in respect of clause 32, shop steward representation.

PN136

Commissioner, the - as I pointed out earlier in these proceedings, I indicated that we had spent most of our time discussing the construction of the award and believing that we had made some considerable progress in that area. The area that we haven't dealt with in any great extent is the issue relating to the classifications in the award, and it is probably our view, sir, that we may require some assistance from the Commission, in the first instance, by way of conciliation.

PN137

However it is our view that the parties have not spent any real time discussing the matter and should do so before coming to the Commission for such assistance. It is the UFUs intention, sir, to deal with this matter in some depth with the employers in the near future, and it is our view that if, sir, that some such discussion should occur within an agreed time frame, where they refer the report back to the Commission on the outstanding matters relating to the construction of the award, and also with a full report back on where the parties are with the classifications to be covered by the proposed award. If the Commission pleases.

PN138

THE COMMISSIONER: Mr Lowe, two matters. The first relates to the matter you just said. Have you got an agreed timetable?

PN139

MR LOWE: Not at this stage, sir. I had in my mind that we may come back somewhere towards middle or late September. That would give us some time to do that, to have those discussions.

PN140

THE COMMISSIONER: Yes, certainly. And the second one related to what you said in regard to clause 15.5, the change of residence allowance. You said that that was removed in the course of the award simplification. Is that the situation, or did I mis-hear you?

PN141

MR LOWE: No. That was removed and it was removed because while it was in that particular section of the award it hadn't been utilised by the MFESB in a number of years and - - -

PN142

THE COMMISSIONER: So why would the - - -

PN143

MR LOWE: So I am quite happy to put a fence around it so that it only applies to people whose - - -

PN144

THE COMMISSIONER: It currently applies in the CFA, does it?

PN145

MR LOWE: It currently applies at the CFA.

PN146

THE COMMISSIONER: I see. Okay. I understand. And thus it was - its application as it related in the section that specifically applied to the MFESB, it was obsolete.

PN147

MR LOWE: It was obsolete, yes.

PN148

THE COMMISSIONER: But if the two sections were removed its obsolescence - it would not be obsolete.

PN149

MR LOWE: No, it would not.

PN150

THE COMMISSIONER: That is - I understand. Yes, thank you. Mr MacDonald?

PN151

MR MacDONALD: Mr Commissioner, I concur with the observations made by Mr Lowe that we have had a number of discussions with the UFU since we were last here on 28 May. Those discussions have been positive and constructive and I believe significant progress has been made over the interim. As will be evident from the exhibits, the UFU is seeking to have one document with one part, just one part, and rather than a core and two parts, one apply to CFA and one to MFB. For CFAs part although we are continuing to explore the wording put forward by the UFU, I think it is fair to say at this point in time we believe at the end of the day there will still be some clauses that would be more appropriately separated for - to reflect the needs of CFA. But we are continuing to look at the wording from the UFU.

PN152

And in that regard the common part currently only contains five clauses. We believe that there is significant scope for that to be broadened, however we do, as I said earlier, believe at the end of the day there will be some provisions that should be distinctly applying to CFA. In relation to the question of classification - - -

PN153

THE COMMISSIONER: So your agreement, if I can put inverted commas around that, is without prejudice to that substantive position?

PN154

MR MacDONALD: Yes, that is correct.

PN155

THE COMMISSIONER: Yes.

PN156

MR MacDONALD: In relation to classifications and definitions, as Mr Lowe said, we have had some preliminary discussions, I think is as high as we would put it, around that matter. We believe that the final award should contain the current classifications and definitions. Whether it should be expanded to include managerial positions we are at this point in time opposed to that, but we are exploring that and are prepared to have detailed discussions with the UFU on our own prior to seeking your assistance if we can't reach agreement, Mr Commissioner.

PN157

I concur with Mr Lowe's sentiment that I believe there is some further work we can do constructively together and we should endeavour to do that, both in relation to the construction issues and also the classification and definitional matters. The only point of difference I would have with Mr Lowe, I am just wondering whether the end of September is a little early. I would have a preference probably for about mid-October, just to give us that two months, rather than six or seven weeks.

PN158

THE COMMISSIONER: Well that might be a matter that is better discussed off record so I will - I think - - -

PN159

MR MacDONALD: That is the views I wanted to express at this time, Mr Commissioner. Thank you.

PN160

THE COMMISSIONER: Yes. Thank you, Mr MacDonald. Mr Bertolus?

PN161

MR BERTOLUS: Commissioner, I have to say that we may seem to all sort of be in furious agreement here. I have to concur with Mr MacDonald's remarks and also with Mr Lowe's remarks. I think that there has been fairly substantial progress. It is a - - -

PN162

THE COMMISSIONER: I don't think you can concur with both, because I - - -

PN163

MR BERTOLUS: Well - - -

PN164

THE COMMISSIONER: Where do you stand on the without prejudice position?

PN165

MR BERTOLUS: Well, I - look, we - to be quite frank, we still have problems I suppose in respect of some of the clauses and the way that the union has attempted to quarantine them. And that certainly is an issue that is open to discussion. We are prepared to continue to discuss those matters with the union. We believe that there are still a couple of matters, as Mr MacDonald has pointed out, that will at the end of the day we believe end up in their separate sections, purely and simply because of the definition problems - - -

PN166

THE COMMISSIONER: So you have the same without prejudice position as Mr MacDonald, do you?

PN167

MR BERTOLUS: Yes, that is correct.

PN168

THE COMMISSIONER: I follow.

PN169

MR BERTOLUS: Okay. We were in fact thinking to go down the path of drawing up our own document about where that would be and then basically we would have the two positions, I suppose, in stark contrast, and that way then we would be able to get together and try and work out exactly what our problems are. So that is one approach that we are thinking about going down at the moment, to try and basically get things to move along.

PN170

In respect of, I suppose, of the issue of classifications, we also have concerns in respect of classifications, although our position is somewhat different to the CFAs and goes more towards the union's position in respect of this but we still have some concerns about that, but we believe that further discussions in that area will certainly be fruitful. I should also express I think some concern on behalf of the MFESB about the notion of the industry award arrangements that seem to keep coming up. We have some trepidation, I suppose, to be talking on behalf of other parties that are not here.

PN171

Now, we don't want to make an issue of this at this stage but we do want to make it clear that we have something in the back of our minds that worries us a little bit about that approach, and we would seek some satisfaction in respect of that from the union in the intervening period. And again, like Mr MacDonald, I think that mid-September might be a little bit too early considering a large number of other issues that are on our plate currently and we feel it is important to dedicate a bit of time to be able to do this properly.

PN172

So we think something like mid-October would probably be appropriate. If the Commission pleases.

PN173

THE COMMISSIONER: Yes, thank you. Did you wish to respond to any of that, apart from the date we come back, which we will talk about off record?

PN174

MR LOWE: Just - the only comment that I wish to make, Commissioner, is that I guess that we have in our mind having an award which other employers in the industry can be made respondent to. But that will be a decision that is made, I guess, when this particular issue is over. So I am not wanting to decry the concerns that have been expressed by Mr Bertolus, but certainly the UFU has simply been dealing with the current respondents to the award, and that is all they believe that they can do at the present time until the union makes a decision as to whether or not they would seek to rope another employer into the award. That is a decision that will be made in the future, sir.

PN175

THE COMMISSIONER: Yes. We will just go off the record to discuss this.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L5 COMPARISON OF PROVISIONS 2 PN96
EXHIBIT #L6 DRAFT 4 PN96