C2006/2428, Transcript of Proceedings [2006] AIRCTrans 746 (15 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14966-1

COMMISSIONER FOGGO

C2006/2428

UNITED FIREFIGHTERS’ UNION OF AUSTRALIA
AND
COUNTRY FIRE AUTHORITY
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2428)

MELBOURNE

10.11AM, TUESDAY, 02 MAY 2006

Continued from 27/3/2006

PN113

THE COMMISSIONER: Are there any changes in appearances?

PN114

MR A CHADWICK : Commissioner, when we appeared last I had with me Melissa Hogan, I've got with me today MR C LAPSLEY.

PN115

THE COMMISSIONER: Mr McConville.

PN116

MR G McCONVILLE: Commissioner, I'm able to report in relation to this matter that the UFU has been provided with a response by the CFA to a total of seven issues which we raised. To assist proceedings I would like to hand up a copy of that response.

PN117

THE COMMISSIONER: Is there any reason why these are the same?

PN118

MR MCCONVILLE: I handed up two copies.

EXHIBIT #UFU5 RESPONSE FROM CFA TO UFUA DATED 13/04/2006

PN119

MR MCCONVILLE: As you can see the response was provided on 13 April and it addresses a total of seven issues, those being the CFA's preliminary proposal for the CBR vehicles and the stations at which they are located. The CFA's position in relation to what the allowance in clause 23.3 of the certified agreement means, training, operating procedures, the fifth matter is the CFA's position on whether operation of the CBR vehicle by staff, other than those covered by the OPS agreement, constitutes contracting out. The penultimate matter is the stations where the CFA intends the CBR vehicles be based and the final matter is the number of vehicles. There was some confusion in proceedings earlier as to whether there were two or three vehicles and it has now been determined that there are in fact three, as we had suggested.

PN120

I would have to say that the response doesn't give us a lot of joy but it does give us some clarity as to what the CFA's position is and I'll go to each of the seven matters contemplated by the response. Firstly, the CFA has indicated that they don't intend to increase staffing at the stations where the CBR vehicles are based and they believe that the current arrangements are sufficient for the CBR vehicles to operate out of those stations and that the Hazmat detection vehicle will operate in the following manner.

PN121

I think there's a bit of confusion there. The CBR vehicle is quite different to the Hazmat detection vehicle so I'm assuming that they're actually talking about the CBR vehicle; that is, that two personnel would effectively operate the vehicle, transport, deploy and use the detectors for analysis on site; secondly, that once on the scene the function would be integrated into the incident management structure and would utilise incident fire ground resources to carry out the detection tasks. Obviously a number of questions remain for us about that in that the two stations at which it is intended to locate the vehicle already have a number of appliances and in the case of Corio the number of appliances clearly outweighs the number of staff available to deploy the appliances.

PN122

Moving on, the CFA says that what's in clause 23.3 of the certified agreement, the allowance, is paid in response to all aspects in regard to CBR training and response. You would be aware from the previous proceedings, Commissioner, that our view is that that allowance related to general CBR awareness and training and it was to apply to all staff who had received the training, and in fact applies to all staff currently. It's in recognition of that general awareness function. What we say is that there is an additional specialised function and that's not what clause 23.3 contemplated so clearly we're apart on that issue, Commissioner.

PN123

In relation to training, the CFA says that they've paid the four lots of half a per cent payments to all staff covered by the EBA and that not all of the training has been rolled out to all of those staff. We concur with that. It has been rolled out on a priority basis and therefore it has been delivered to most fire fighting staff and that the program of training for remaining staff is being developed. The CFA says they will and they have in the past provided higher level of training to leading fire fighters and/or fire officer staff at those stations where the vehicles are based. That's consistent with our understanding that there are in fact two levels of training being undertaken here.

PN124

The CFA say that the higher training is being provided on the basis that a staff member trained to that higher level should form part of the two member team responding in the CBR vehicle. We don't disagree with that, but where we do disagree is over the understanding about what clause 23.3 applies and what it should provide.

PN125

As to operating procedures, they are currently under development and the CFA has indicated they will consult with us. We're very interested in continuing consultation on those procedures because they go to - or we assume that they will go to precisely how the vehicles will be deployed and how the CFA will ensure that adequately trained staff are available to enable the vehicles to respond. That's one area where I think we can clearly have some further discussions, Commissioner.

PN126

The next matter is the CFA's position on whether operation of the vehicle by staff other than those covered under the OPS agreement constitutes contracting out. I should indicate that in the initial proceedings before you, Commissioner, we indicated that the CFA had said to us that if the members who were covered by the operational certified agreement were not able to respond, then they would find other staff to respond using the vehicle, operations officers for example. We saw that as a contrivance to avoid the provisions of the operational staff agreement.

PN127

The CFA are no longer saying that, is my understanding. Clearly what this response says is that they're intending that operational staff will respond with the vehicle, save and except for the specialist function of the scientific officer. In short, not much hinges on that issue today, Commissioner.

PN128

In terms of the scientific officer position that I just alluded to, we now clearly understand that there is a third CBR vehicle as we had thought and that that is assigned to the scientific officer as part of that role. It's not an operational position but an expert scientific role and we accept that.

PN129

They are all of the matters that the CFA has responded to. We think it's unfortunate that we haven't seen a lot of movement in their position. I think that perhaps today our time might best be spent exploring whether there is any capacity for us to reach agreement about the matters that are contested and are in dispute. Failing that, we may be in the unfortunate position of having to proceed to hearing on this matter, Commissioner. That's all I wish to put at this stage.

PN130

THE COMMISSIONER: Mr Chadwick.

PN131

MR CHADWICK: Commissioner, last time we were before the Commission was Commissioner Cribb on 5 April and we were basically asked to go away and hold one if not two meetings before report back, which is the proceedings today. We held one meeting, it was a lengthy meeting, and the product of that meeting, I guess, was the email that's UFU5 today. That put the CFA's position in relation to the matters that the UFU were raising.

PN132

I don't propose to go through each and every one of those but can I say that from the submissions just made to you, the UFU, I think, indicated that the CBR vehicle is a different vehicle from the Hazmat vehicle. That's not what we're saying. We're saying the Hazmat vehicle is the CBR vehicle.

PN133

In our view there's probably two major sticking points here and they both go to costly fixes. One of the issues is the staffing profile required to run these vehicles out of the stations which we want to put them into and the UFU are basically saying two extra people per shift, and that's a very costly fix. We say it's not required. We say that the existing staff can run those appliances out of the stations and indeed, Dandenong is one of the two stations; Dandenong and Corio are the two stations that are our preferences to run these vehicles out of.

PN134

THE COMMISSIONER: Dandenong and?

PN135

MR CHADWICK: Corio. Dandenong is currently and has been for some time operating that vehicle and it's operating well. We haven't put in extra staff. The issue seems to be Corio and I forget whether it was the case last time we were before you, but we have actually recovered the vehicle from Corio and it's no longer there. One of the issues at our meeting with the delegates was that they insisted upon taking it back to Corio that day. When we told them that that wasn't going to be the case, the meeting ended fairly abruptly. Suffice to say that the two primary locations are Dandenong and Corio. Dandenong is operating well. Corio isn't. That's why we say in our response that one of the issues that we need to consider is whether Corio is the second location for the second vehicle.

PN136

Mr McConville also raised in his submission that the allowance at 23.3 was a general awareness allowance, I think were his words. Commissioner, if you go to 23.3 - - -

PN137

THE COMMISSIONER: That's an appendix, isn't it?

PN138

MR CHADWICK: No, it's in the body of the agreement at clause 23.3. Part of that clause actually says:

PN139

In recognition of this training requirement the following all purpose advanced training allowance shall be payable.

PN140

We say that's very clear in terms of that clause was always meant to embrace not just a general awareness CBR training, but as it says, an advanced so it's meant to embrace the total specifics of CBR. We agree that what we have actually done is we've trained some people to a certain level and we've trained others, a few others, the majority to one level and a number of others to this higher level. As per our response, what we're saying is, one of those who is trained to that higher level would be expected to be in the vehicle but we don't see that two tiers of training, if you like, exceeds 23.3 in terms of its all embracing nature of advanced CBR training. That payment was clearly designed to pay an allowance in relation to CBR activities within CFA.

PN141

THE COMMISSIONER: But you're currently paying it for everybody.

PN142

MR CHADWICK: Yes. It's in the first part of the agreement, Commissioner, so it applies to all people covered in this agreement. The payment has been made since 2002 to everybody, but as Mr McConville said, the priority has been given to fire fighting staff in terms of rolling out the training. There are other staff, Commissioner, who aren't fire fighting by nature. There are pad operators, there are protective equipment people in the various sections of this agreement so the priority has clearly been for fire fighting staff to be trained in this.

PN143

THE COMMISSIONER: You can either address me now or when we get into conference in relation to this. There is an incremental introduction of the overall 2 per cent, four lots of point 5 in relation to the advanced training allowance as set out in 23.3. Do I take it that the training schedule hasn't kept pace with the introduction of the allowance?

PN144

MR CHADWICK: I think that's right. As I understand it, Commissioner, what happened after 2002 is that CFA needed to develop the component of the training course itself and, of course, as that was happening, discussion was happening with the UFU about the construction of the specialist vehicle. I think in matters before you previously the UFU have acknowledged that CFA have held extensive discussions with them about the construct of a specialist vehicle called a CBR vehicle. Of course, it all took time and as I understand it the training didn't really start to roll out until 2004 and yes, it's true that we've covered most fire fighting staff but we haven't gone yet to the area of those other staff like the protective equipment staff and the communications staff because we see those as a lower priority. The normal immediate response from CFA is the fire fighting staff to an incident.

PN145

Commissioner, I just want to go to one other thing that Mr McConville said, where I think he indicated one of the seven issues being who can operate the CBR vehicle. He was indicating, I believe, that by our response that this perhaps wouldn't be an issue. That's not my understanding. Our response is basically saying our primary preference is that these vehicles be operated by operational staff but they haven't got exclusivity in that function. If push comes to shove and it is appropriate that others respond in that CBR vehicle, then that can happen. I just wanted to correct the record in case of Mr McConville saying that there shouldn't be an issue about that.

PN146

As long as it's understood that our response is saying that not just operational staff in a sense own the CBR vehicles and the only ones that can respond, we have other staff like operational officers, operational managers who are also trained in this CBR matter and our primary object is to service the incident. It's not going to be just locked into operational staff being the only ones able to get in this vehicle and respond to the incident. I just wanted to touch on that. Other than that I agree with Mr McConville, we've met, we didn't reach agreement. They're clearly not happy with our response so I guess where to from here.

PN147

What I wanted to touch on is that you might recall, Commissioner, initially this was put in as an application under section 99 of the old legislation, then a further application was received on the last day making it a 170LW application . At some stage I just want to bring the Commission back to the requirements of 170LW. As I read that it means that if there's something in the agreement that's in dispute, we can come here, but as I understand it, the UFU are claiming that they've submitted a grievance in terms of clause 10 of the agreement.

PN148

For many years, as I understand it, CFA have said to the UFU that the UFU is incapable of launching a grievance under clause 10, that it's a staff member that needs to launch a grievance. What we say is that the grievance submitted by the UFU isn't starting off a process that can finish in this Commission. Even if that is not accepted, I say that that grievance hasn't gone through the various steps 1 to 4 before we would be at step 5 and before the Commission. I know it's going back to technicalities but I would hate to rush forward towards some sort of scheduling of a hearing date without having the opportunity of putting the case that it's really too early for the Commission, we say, to set this down for hearing to arbitrate the matter. If it please the Commission.

PN149

THE COMMISSIONER: Can I just clarify in relation to your penultimate point. My understanding in relation to the operation of clause 10 is that it is within the purview of the provisions of that clause for the union to lodge a dispute on behalf of an employee. As it says in clause 10.2:

PN150

The dispute shall be submitted by the employee representative.

PN151

My understanding of that means that the union is quite capable of lodging a dispute on behalf of an employee. I've expressed my view in relation to that. It's something you might wish to consider. I don't press you immediately on it now but if your view is different to that, then you should press me on it.

PN152

MR CHADWICK: Yes, I understand, Commissioner.

PN153

THE COMMISSIONER: Perhaps you could consider that and we can deal with it later.

PN154

MR CHADWICK: I think I need to consider it, yes. Thank you.

PN155

THE COMMISSIONER: In terms of your general proposition, though, I agree with you. I think there are other elements that do need to be considered prior to launching into an arbitration or hearing in relation to this matter. I think the most useful way to proceed with this will be to move into conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UFU5 RESPONSE FROM CFA TO UFUA DATED 13/04/2006 PN118