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NOTE TO MEMBERS – 15 June 2017
FIRE SERVICES REFORM LEGISLATION UPDATE AND VFBV LEGAL ADVICE
Attached to this News Note, is a copy of the legal advice provided to VFBV regarding the Presumptive Rights Compensation aspects of the proposed Firefighter's Presumptive Rights Compensation and Fire Services Legislation Amendment Bill 2017 (referred to here as ‘the Bill’).
This legal advice, provided by Jack Rush QC, a former Supreme Court Judge, former Chairman of the Victorian Bar Council, and Counsel Assisting the 2009 Victorian Bushfires Royal Commission confirms that the proposed presumptive rights legislation:
“…establishes two distinct mechanisms for the operation of the presumption that specified cancers are due to the nature of firefighting – one for career firefighters and one for volunteer firefighters. The Bill discriminates against volunteer firefighters, is inequitable to them, has been drafted in a manner that is prejudicial to volunteer firefighters’ entitlements and rights to claim for specified forms of cancer when compared to the claims process created by the Bill for career firefighters for precisely the same cancer conditions.”
This directly contradicts the Governments statements:
- Career Firefighters and Volunteers will get equal treatment – They do not
- That it is the same or better than the QLD model – It is not
- That the proposed legislation is what VFBV asked for – It is not
Bill scheduled to go to Upper House for vote next Tuesday (20th June 2017)
The Bill has been passed in the Legislative Assembly (lower House) and is supposedly scheduled to be put to the vote in the Legislative Council (Upper House) next week, probably Tuesday 20th June 2017. This is very disappointing for volunteers who have raised serious concerns about the lack of consultation regarding the Bill; the negative effect dismantling the existing CFA integrated service model; the potential erosion of Victoria’s vital volunteer surge capacity; the lack of transparent process, operational or cost impact analysis; and the ambiguity, confusion and interference that will flow if this change is adopted.
Volunteers are supportive of genuine and cost effective fire service modernisation but we continue to urge the decision makers to withdraw or stop the adoption of the current Andrews’ government proposal. The approach to modernisation needs to be re-thought. Our strong view is that those aspects of the Bill relating to the split up of the integrated CFA model and the creation of FRV are so fundamentally flawed they should be rejected and at a minimum require a major rethink and review before being considered by the Legislative Council.
We are continuing to have asked MPs to take this legislation off the table for now or at least agree to a transparent and proper process of scrutiny and review before the legislation is passed.
Previous VFBV communiques have outlined VFBV broad concerns regarding the Bill and these concerns remain.
Bill should be split to separate presumptive rights compensation from the aspects relating to structural changes to Victoria’s Fire Services
As stated above, VFBV concerns regarding the broader reform aspects of the Bill remain and are in addition to the Presumptive Rights Compensation aspects of the Bill. VFBV and many other respected public officials and bodies have already expressed our deep disappointment that the Bill combines two totally separate issues. One being firefighters’ presumptive rights compensation and the other being proposed changes to the fire service structure and arrangements for Victoria. It is highly offensive and morally wrong to combine an issue so important as firefighter cancer protection with the proposed reforms to the fire services that essentially carve up CFA, one as a ransom note for the other.
VFBV has met with MPs from all sides of politics seeking support to separate those aspects of the Bill which relate to presumptive rights from the remaining aspects relating to the broader restructure of the fire services.
At this point in time our efforts have been unsuccessful however we remain hopeful that this issue will be respectfully resolved by a resolution to split the Bill when the legislation is considered in the Upper House.
It is untrue and blatantly misleading to say the Firefighters Presumptive Rights Compensation aspects of the proposed Bill is the same as the QLD presumptive legislation
Regarding the presumptive rights compensation aspects of the Bill I refer you to the attached legal advice provided to VFBV. This advice from Jack Rush QC confirms VFBV concerns that the proposed firefighter presumptive rights legislation is being sold as something that it clearly is not. The proposed Victorian legislation does not provide a simple process for volunteers, it does not treat volunteers and paid firefighters equally, it is not the same as the well regarded QLD model and it sets up potential for ambiguous protracted legal debate and bureaucratic hurdles for sick volunteers.
To sell the cancer protection as being the same as other simple and equitable models such as the QLD approach is false. The proposed Victorian cancer protection legislation is not the QLD model, it sets up a complex and ambiguous legal battle for volunteers and a much simpler process for paid firefighters. VFBV is pleased that paid firefighters will be provided with simple and compassionate cancer protection but why discriminate against volunteers?
All volunteers are urged to read the attached legal advice as it sets out a compelling case for there to be further work done on the presumptive rights protection aspects of the Bill before it is adopted.
VFBV believes this work could be done quite quickly if the true spirit of the QLD model is genuinely applied for both paid and volunteer firefighters in Victoria.
Serious concerns regarding the proposed fires services reform echoed by counsel assisting the 2009 Bushfires Royal Commission
All members are encouraged to read the attached opinion of Jack Rush QC regarding the adverse effects of the proposed Bill on CFA volunteer capacity, Victoria’s capacity to deal with major fires, CFA operations and support for volunteer.
VFBV have argued strongly that the proposed fire service reform change triggered by the legislation is not a modernisation of the fire services.
It creates less flexibility for the fire services to adapt to changing risk and service demands. The Government, the Emergency Management Commissioner, and the CFA Chief Officer are yet to be able to explain to the Victorian public what public safety improvement will occur in communities currently serviced by CFA’s 35 Integrated Brigades. They are yet to explain how changing the logo on a truck that sits in Dandenong, Geelong or Bendigo today, somehow makes that community better protected tomorrow.
It further fragments Victoria’s fire services when all recent reviews have said fire service modernisation needs to be about joining up effort.
It creates 35 separated fire service islands spread throughout regional Victoria creating confusion, duplication and complex chains of command.
Contrary to the Governments claim, none of the recent major reviews, and certainly not the 2009 fires Royal Commission, recommended splitting the world-renowned CFA model. This is confirmed and the propaganda being pedalled by the Government has now been called out by Jack Rush QC as ‘nonsense’. Jack Rush has confirmed that the 2009 Bushfires Royal Commission applauded the CFA model as being ‘the nations pre-eminent firefighting organisation.
Jack Rush has confirmed that the 2009 Bushfires Royal Commission recognised the importance of maintaining and strengthening the existing CFA model that fully integrates volunteers and paid firefighters. The 2009 Bushfires Royal Commission and other recent reviews recognised the absolute importance of the existing CFA model as the best way for Victoria.
The Government is marketing these reforms as restoring CFA to a strong and independent volunteer service. They omit the fact that all those operational positions covered by the UFU that support, lead and manage those same volunteers will now cleverly be forced to be contracted back in from the metro service - supposedly doing the same jobs they were doing before – but employed and grown by another service.
A clear motivation underpinning the proposed change is a blatant desire by those pushing it to avoid a simple test that now sits with the legislated Fair Work Commission umpire – the very same umpire that Victoria’s Premier Daniel Andrews said we should all listen to up until the day the umpire’s rules also require volunteers rights, capacity and contribution to be respected valued and recognised. The so called Fair Work barriers to any industrial agreement are only about ensuring industrial agreements don’t restrict or limit how a body such as CFA supports, equips, deploys or respect volunteers. These tests are not only common sense; they essentially already exist in CFA legislation.
What is VFBV’s vision for the future?
Based on volunteer feedback and consultation from the 2015 Fire Services review, and as submitted to last year’s Senate enquires, our view has been stated as the following:
Because volunteers are fundamental to Victoria’s emergency management capability, fundamental to community resilience and at the core of communities sharing responsibility for their own safety, it is vitally important to ensure that they are involved in decision making on all issues that affect them, both to make the most of their frontline knowledge and to help sustain Victoria’s essential volunteer resource.
VFBV wants to make it very clear that CFA volunteers appreciate and respect the dedication, skill and work of our CFA paid colleagues. Our vision for CFA is for it to be a modern and contemporary emergency service where volunteers and paid staff work side by side, as equals and respect one another.
We are against anything that tries to create a wedge between volunteers & paid staff, and any arrangements that seek to demoralise, discriminate or segregate volunteers from our paid colleagues.
We are all CFA members who want to put our communities first.
Our desire is for a modern approach, focussed on all people working together to maintain and build volunteer and community safety; a respectful culture focussed on empowering and supporting
local volunteer brigades and community with the flexibility and agility to enable CFA to tailor resources and support to local community’s needs.
The Governments proposed legislation is not modern, it is not flexible, it does not further community safety outcomes, and it does not promote interoperability or connectedness, and it does not build and strengthen community resilience before, during and after natural and other disasters.
The Bill should not proceed
Volunteers are supportive of fire service modernisation but we continue to urge the decision makers to stop and have a re-think.
Our strong view is that those aspects of the Bill relating to the split up of the integrated CFA model and the creation of FRV are so fundamentally flawed they should be rejected and at a minimum require a major rethink and review before being considered by the Legislative Council. Jack Rush has thankfully called the Bill for what it is ‘motivated by a political and ideological outcome’, ‘it will most certainly not produce a positive operational outcome, it weakens rather than strengthens the CFA and support for CFA volunteers’
What you need to do
Volunteers should not give up. Please continue to write, email or visit your local MPs, particularly Upper House MPs, and ask them to vote against the legislation. At a minimum ask them, if they are not prepared to take this legislation off the table for now, at least agree to a transparent and proper process of scrutiny and review before the legislation is passed.
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