C2003/5362, Transcript of Proceedings [2003] AIRCTrans 4331 (30 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10568
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/5362

UNITED FIREFIGHTERS' UNION
OF AUSTRALIA

and

COUNTRY FIRE AUTHORITY

Application under section 170LW of the Act
for settlement of dispute re clause 10
dispute resolution procedure

MELBOURNE

10.15 AM, FRIDAY, 12 SEPTEMBER 2003

PN1

MR N. KOLETSIS: I appear on behalf of the United Firefighters' Union of Australia, Victorian Branch, and with me is MR M. McGUINNESS and MR T. CLARKE.

PN2

MR M. McDONALD: I seek leave to appear on behalf of the Country Fire Authority.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any opposition to Mr McDonald's appearance?

PN4

MR KOLETSIS: Yes, your Honour, there is.

PN5

THE SENIOR DEPUTY PRESIDENT: You had better make out your grounds, Mr McDonald.

PN6

MR McDONALD: Yes. Does your Honour have at hand a copy of the section 170LW application?

PN7

THE SENIOR DEPUTY PRESIDENT: I do. It is singularly uninformative, I might indicate.

PN8

MR McDONALD: Yes, your Honour. I would echo those sentiments, but to the extent that it does identify a matter in dispute which could activate the operation of the Commission's jurisdiction under section 170LW the only matter which is identified is a - what was at the time of the filing of the application dated the 21st but received by the Commission on 29 August a prospective dispute in respect of the leave arrangements of members of the union who were at the time of the filing of the application rostered to take leave on 5 September and an apprehension on the part of the union that that leave would be unlikely to be approved.

PN9

Now the position is, your Honour, that in fact no dispute as foreshadowed by the union in the section 170LW application in fact occurred. No employee who was rostered to take leave on 5 September was prevented from doing so and we make the simple but we say significant jurisdictional submission that the application does not, in fact, invoke the Commission's jurisdiction under section 170LW and if the - it is not clear to us and, of course, it is not clear from the face of the application, what it is that the union seeks today but we would certainly wish to make - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Are you going to withdraw your objection, are you?

PN11

MR KOLETSIS: No, sorry, your Honour. I understand that the case that should be being put forward now is about the merits of seeking leave to appear rather than - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Well, that is what Mr McDonald is doing. He is explaining to me why it is that he should be given leave to appear as counsel and he is indicating that there is a jurisdictional issue to be decided.

PN13

MR KOLETSIS: I am sorry, it sounded as if the case was being made.

PN14

THE SENIOR DEPUTY PRESIDENT: Would you let him continue, please? Yes, Mr McDonald.

PN15

MR McDONALD: Yes. I was saying it is not clear what the orders sought - what relief is sought by the union on the face of the application but we do submit it is appropriate, given that in its terms the application clearly raises at the very least a jurisdictional question, that it is appropriate that this is a matter consistent with section 43 of the Act where the CFA should have the right for legal representation. If the Commission please.

PN16

THE SENIOR DEPUTY PRESIDENT: Now, Mr Koletsis, it is your turn.

PN17

MR KOLETSIS: Thank you, your Honour. Section 42 of the Workplace Relations Act under sub-section (3)(b) says that:

PN18

A party may be represented by counsel, solicitor or agent by leave of the Commission granted on application made by the party if the Commission is satisfied that having regard to the subject matter of the proceeding there are special circumstances that make it desirable that the parties may be so represented or if the Commission is satisfied that a party can only adequately be represented by counsel, solicitor or agent.

PN19

Your Honour, we are in here to seek conciliation over the procedure in clause 10 of our enterprise agreement which is the dispute resolution procedure. I don't believe that that constitutes special circumstances nor do I submit that the CFA can only be adequately represented by counsel, solicitor or agent in this case. We are not seeking a determination; we are seeking just a mediation or conference as outlined in our disputes resolution clause that says at 10.8 - - -

PN20

THE SENIOR DEPUTY PRESIDENT: What agreement is that because you have referred to an award in the section 170LW notification? We were unable to ascertain which agreement you are talking about? Have you got a copy for me?

PN21

MR KOLETSIS: Yes, your Honour. I haven't got a copy of the entire agreement; I have got a copy of an excerpt of the disputes resolution procedure that comes from the CFA/UFU Operational Staff Agreement 2002.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. It is the CFA/UFU - - -

PN23

MR KOLETSIS: Operational Staff Agreement 2002.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, and you have handed me clause 10 from that agreement. Yes.

PN25

MR KOLETSIS: Yes, your Honour, and over the page in sub-clause 10.8 it says at step 5:

PN26

If the matter is not settled following progression through the disputes procedure it shall be referred by any party to the Australian Industrial Relations Commission or Court for conciliation/mediation and if necessary for determination. Any determination includes access to appeal.

PN27

Your Honour, what we are seeking here is conciliation/mediation to assist us work through the process. We have got a grievance on the grievance procedure that we have lodged with the Authority and we are just trying to seek the assistance of the Commission to work through the disputes resolution procedure. I don't think that there is anything particularly special about that. It is just a matter of having some discussions and perhaps seeking some advice from the Commission on that clause.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't agree with you. Leave is granted, Mr McDonald.

PN29

MR McDONALD: Thank you, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: I think that jurisdictional issues have arisen. In fact it is not clear to me on the face of the notification how it is that this matter is before me. Yes, Mr Koletsis, what can I do for you?

PN31

MR KOLETSIS: Your Honour, if I could just give you an outline of what brought us here this morning. On 17 July the union was notified of a memorandum that was being circulated by the Country Fire Authority and I have a copy of it here to hand up.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Are you seeking to tender that?

PN33

MR KOLETSIS: Yes, your Honour.

EXHIBIT #UFU1 MEMORANDUM

PN34

MR KOLETSIS: The memorandum is addressed to area managers, operations managers and operations officers. It is from the Acting Director Operations/Chief Officer and the subject is Firefighter Level 1 Business Rules and it is dated 16 July 2003. The union was made aware of the existence of this memorandum on 17 July and it goes to some matters that impact on our members' rights to take annual leave, particularly level 1 firefighters, and there was no consultation on these Business Rules before they were promulgated.

PN35

We identified some issues arising from the memorandum because it had an impact, an immediate impact on the rostering of leave of some of our members so we responded to that memorandum on 17 July, although I understand it was faxed on the 18th to the CFA, by lodging a grievance, and if I may submit a copy of that.

EXHIBIT #UFU2 LETTER FROM UFU TO DIRECTOR OF HUMAN RESOURCES OF THE CFA DATED 17/07/2003

PN36

MR KOLETSIS: Your Honour, in it we say that we have received a copy of the memo and we express in some forceful language that we are not happy with it. We believe that the memo has the potential to breach a number of clauses of our enterprise agreement and award and in the second last paragraph we say that:

PN37

Whilst this grievance is being dealt with we expect the status quo to remain as per the disputes resolution procedure and the memo to not be given effect pending the resolution of this grievance.

PN38

Subsequent to that, your Honour, we had some discussions with the Authority on the - or we were intending to have some discussions with the Authority on the grievance that we laid out. However, in the Barwon-Corangamite Region of the CFA there were nine firefighters who were immediately affected by this Business Rule. They were scheduled to take leave on 5 September and the managers in that region began to alter the rosters to give effect to the Business Rules and this obviously had an impact on the rostering of leave for our members.

PN39

As a result of that our delegate, Mr McGuinness, who is appearing with me today, notified the local management that a grievance had been lodged on the Business Rules and as per clause 10.10 of the disputes resolution procedure it states that:

PN40

While the above procedures are being followed work must continue 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.

PN41

We notified the CFA that we were concerned that they were breaching the disputes resolution procedure by giving effect to the Business Rules, even though we had lodged a grievance on 18 July regarding the Business Rules, and that grievance had yet to be resolved. The Authority replied that they understood our concerns but they gave us a reply that basically went along the lines of they didn't recognise our initial grievance on the Business Rules so to deal with that particular grievance - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Was that reply in writing?

PN43

MR KOLETSIS: Sorry?

PN44

THE SENIOR DEPUTY PRESIDENT: Was that reply in writing?

PN45

MR KOLETSIS: Yes, we have received a reply to that effect in writing.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. Are you going to complete the sequence of events by tendering that or - - -

PN47

MR KOLETSIS: Yes, I will.

EXHIBIT #UFU3 LETTER DATED 08/09/2003 FROM CFA TO BRANCH SECRETARY OF THE UNION

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR KOLETSIS: Your Honour, the position we put to the - or the Authority was giving us the message that the grievance wouldn't be recognised because it was initiated by the union rather than as step 1 but leaving that aside Mr McGuinness notified his own local officer-in-charge of a grievance arising from the grievance procedure so Mr McGuinness lodged a grievance saying that - essentially saying that we didn't believe that the Authority was correctly adhering to the disputes resolution procedure and as a result he wanted that grievance dealt with before we would deal with the Business Rules.

PN50

So it became an argument over whether the status quo should apply or not. Mr McGuinness' grievance was lodged in the early part of August. We have had, I think, two meetings with the Authority to discuss both grievances but we have come to a stalemate because the - I guess our position is that unless the Authority maintains the status quo and puts the Business Rules memo into abeyance for the time being whilst we resolve the question of the - following the disputes resolution procedure and deal with the grievance on the Business Rules, we weren't prepared to discuss the substantive issues.

PN51

Now the Authority is telling us that they are not prepared to suspend the memo or the - suspend the effect of the memo on the Business Rules. They are prepared to talk to us about the Business Rules, there is no argument about that, but it is a question - it is a bit of a chicken and egg situation. We are saying, look, first adhere to the disputes resolution procedure, particularly sub-clause 10.10 that maintains the status quo, then we can deal with the issue and once the issue is resolved we can then move forward on it, your Honour. So essentially that is the background to it and what we are seeking is the assistance of the Commission in conference to try and work through these issues. Thank you, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr McDonald.

PN53

MR McDONALD: Can I indicate, your Honour, that the CFA has got no objection to the matter going into conference but can I just simply place a couple of short points on the record in response to what has been put on behalf of the union. As to the submission that there were nine employees in the Barwon-Corangamite Region who had leave approved and that that was adversely affected by the introduction of the Business Rules, the CFA strongly takes issue with that. Its position is that those employees, they never had any leave approved.

PN54

Certainly there was no situation where any one of those employees came to the management of the CFA and made any special requests for leave to be provided. If that had occurred it would have been given sympathetic consideration. Can I just make reference also to the correspondence from the CFA to Mr Marshall which I believe is exhibit UFU3. You will see in the penultimate paragraph on the first page of that correspondence that reference is made to a broader issue of the inter-relationship between the introduction of the business rules and the union's concerns that this may have some implications for existing minimum manning arrangements, the union's concern being that current practice is that new recruits are not included in minimum manning arrangements during the first 12 months of their employment.

PN55

The CFA has given a commitment to the UFU that those arrangements will not - those current arrangements will not be altered until such time as there has been full consultation with the union.

PN56

THE SENIOR DEPUTY PRESIDENT: Does the Business plan envisage that they be used earlier, does it?

PN57

MR McDONALD: No, it doesn't. It doesn't deal directly with that issue, your Honour, but as we apprehend it the union has a concern that the arrangements which have been set in place under the Business Rules may be a precursor to an alteration to minimum manning arrangements. So we have given a clear indication in relation to what we apprehend is a substantive concern on the part of the union. As to the general contention advanced by the union that the Business Rules do involve an alteration to the status quo there is simply a dispute as to the factual position between the parties there, your Honour.

PN58

The CFAs position is that all the Business Rules do is standardise across the state existing arrangements for rostering, training and the taking of leave and that the standardisation doesn't - - -

PN59

THE SENIOR DEPUTY PRESIDENT: So rostering?

PN60

MR McDONALD: Rostering, training and the taking of leave and the CFAs position is that that doesn't involve any departure from the status quo. We accept that if that was a matter which was to be explored in detail by the Commission that could, of itself, constitute a fairly lengthy forensic exercise because there would be no doubt a deal of evidence as to just exactly what the current arrangements are and the extent to which they vary from region to region throughout the state and we don't really see that as being certainly a fruitful exercise today.

PN61

THE SENIOR DEPUTY PRESIDENT: How, if they vary from region to region and it is now sought to have a standardised arrangement, can it be said that there is no alteration to the status quo at least in some regions?

PN62

MR McDONALD: We say there is no alteration to the status quo because we have - the CFA has always had the right to do that which it is doing by way of the standardised practices. For instance, in relation to the leave and rostering arrangements, your Honour, the award clearly specifies, and this is in clause 12.1 of the award, it clearly specifies that there is an entitlement during the first 12 months of an employee's employment for the employee to be rostered on day shift. Where an employee is rostered on day shift clause 18.1.3 of the award confers upon the CFA the right to prescribe the period in which annual leave is to be taken.

PN63

So we take the position all we are doing is exercising rights we have always had and that is the central - seems to be a central bone of contention from the union's perspective, the rostering and leave arrangements as spelt out in the Business Rules. All we are doing, we are saying, is doing what we have always had the right to do and that which has occurred. But, perhaps, as I say, we have no objection to the matter going into conference, your Honour. That may be a fruitful way forward.

PN64

THE SENIOR DEPUTY PRESIDENT: It may be the best way to deal with it. Anything you want to say on the record before we go into conference?

PN65

MR KOLETSIS: Yes, sir. Thank you, your Honour. Look, it is - not that it is particularly critical but I just want to clarify. Our understanding is that the nine employees in the Barwon-Corangamite Region, it is the contention of the CFA that leave was not approved and we are saying that rosters were developed and printed and when the changes were made the firefighters affected did raise the matter with their officer-in-charge. That is my instructions, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. That is all you want to say before we go into conference, is it, Mr Koletsis?

PN67

MR KOLETSIS: Yes, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. We will adjourn into conference, thank you.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UFU1 MEMORANDUM PN34
EXHIBIT #UFU2 LETTER FROM UFU TO DIRECTOR OF HUMAN RESOURCES OF THE CFA DATED 17/07/2003 PN36
EXHIBIT #UFU3 LETTER DATED 08/09/2003 FROM CFA TO BRANCH SECRETARY OF THE UNION PN48