VFBV

NOTE TO MEMBERS – 25 October 2016 - Download Media Release Here                                       

IMPORTANT UPDATE FOR ALL VOLUNTEERS

In the last few weeks VFBV has achieved major breakthrough in the long running dispute flowing from the CFA/UFU enterprise bargaining deal (EBA) that undermines the volunteer based nature of CFA, impacts on the way volunteers are supported and work, and overrides CFA decision making including on matters impacting on volunteers.   

VFBV has successfully campaigned for and achieved a change to the Federal Fair Work Act that protects volunteers and ensures the volunteer nature of CFA cannot be undermined by an Enterprise Bargaining Agreement between CFA and the UFU.  The Federal Fair Work Act changes were approved by the Senate on 10 October with support from all Coalition and cross bench independent Senators other than Senator Lambie from Tasmania, and have been given Royal Assent which confirms them as law as of now.

The changes to the Fair Work Act apply to the current EBA negotiations and also all future CFA EBAs.  This means that VFBV has also achieved the outcome being pursued in the Victorian Supreme Court.  Our core claim in the Supreme Court was to achieve a declaration that it would be unlawful for CFA to enter into the proposed 2016 CFA/UFU EBA because of clauses that contradict and override the CFA Act - the changes to the Federal Fair Work Act now disallow this in federal law.   

As a result, yesterday we reached an agreement with the CFA to draw a conclusion to the Victorian Supreme Court Action.  VFBV is of the view that CFA should revisit the EBA given the changes to the Fair Work Act but instead of testing this in the State Supreme Court it will now be a matter to be tested in the Fair Work Commission under the new arrangements which make it unlawful for the EBA to include arrangements that restrict or limit CFA's ability to:

• Engage or deploy volunteers
• Provide support or equipment to volunteers
• Manage its relationship with or work with any other emergency management body in relation to its volunteers
• Manage it operations in relation to volunteers
• Consult with volunteers
• Or require or permit CFA to act other than in accordance with the powers, functions and duties conferred or imposed on CFA by the CFA Act in relation to volunteers.

This doesn’t mean our legal action is over completely but it does make the path ahead clearer.  Instead of continuing our costly legal action in the Victorian Supreme Court, the focus of our advocacy and legal action will now shift to the Federal sphere and play out in the Fair Work Commission and from there the Federal court system if required.  We will also be freed up to focus on potential challenge to the Fair Work Amendment in the High Court of Australia as threatened by the UFU.  At the Federal level we will not be alone – the Fair Work Commission now has clear rules to follow which protect emergency service volunteers; the Federal Employment Minister has also committed to challenge the EBA at the full bench of the Fair Work Commission if required, and if the matter goes to the High Court then the Federal Government will have a keen interest in defending the robustness of their legislation.

The change to the Federal laws (Fair Work Act) now achieves what VFBV have been seeking from the Victorian Supreme Court.  Our efforts from here on are better devoted to ensuring the federal arrangements for protecting the future of CFA hold firm, working to ensure CFA and others are focussed on supporting and strengthening volunteerism for the benefit of future generations and getting on with protecting our communities. 

It was never our wish to be held up in a protracted court case.  We think VFBV and volunteers can now set the scene by proactive leadership to ensure CFA remains a strong and successful volunteer based organisation where paid staff and volunteer work side by side for the benefit of the communities we serve. 

The Supreme Court action has been fundamental in our efforts to prevent the CFA and UFU using the loophole that previously existed in the Fair Work Act to enable the CFA Board to enter into an EBA that we say is beyond the lawful intent and powers of the CFA Act.  The CFA will no longer be able to use this loophole.   Our action in the Supreme Court has been costly and resource intensive.  VFBV greatly appreciates the support and monetary donations that have made the Supreme Court action possible.  A big thank you to everyone who has supported our campaign to date.

There is still a possibility that further legal action might be required given that the UFU have claimed they will challenge the Fair Work Act amendment in the High Court and there is also real possibility that VFBV will need to defend the rights of volunteers in the Federal sphere so we will continue fund raising to support our legal action and further campaign efforts.

VFBV will also be arranging detailed briefings for every VFBV District Council to explain the success achieved by the change to the Fair Work Act, the outcomes achieved by our Victorian Supreme Court Action and the work remaining in the Federal sphere.  VFBV will be working hard with CFA and Government to provide the leadership required to ensure CFA remains a great place to volunteer and an organisation ready to serve communities.  There is a lot of work to do, and with summer on our door step we want to get on with it as quickly as possible.

SUMMARY OF CHANGES TO THE FAIR WORK ACT

The changes to the Fair Work Act make it unlawful for organisations such as CFA to have EBA arrangements that restrict or limit CFA’s ability to:

• Engage or deploy volunteers
• Provide support or equipment to volunteers
• Manage its relationship with or work with any other emergency management body in relation to its volunteers
• Manage it operations in relation to volunteers

The changes to the Fair Work Act prohibit the CFA from having EBA arrangements that require CFA to consult or reach agreement with any other person or body before taking any action regarding the things listed above.  The changes to the Fair Work Act also disallow the CFA from having EBA arrangements that restrict or limit CFA’s ability to recognise, value, respect or promote the contribution of CFA volunteers to the wellbeing and safety of the community.  And the changes prohibit the CFA from having EBA arrangements that require or permit CFA to act other than in accordance with the powers, functions and duties conferred or imposed on CFA (ie by the CFA Act) in relation to volunteers.

The changes also enable VFBV to make a submission to the Fair Work Commission (FWC) when matters before the FWC affect, or could affect, CFA volunteers.  To date VFBV has been locked out of any ability to raise concerns in the FWC even when matters contained in the CFA/UFU EBA directly impacted on volunteers.

IN THIS UPDATE:

-          Supreme Court Action Tomorrow

-          VFBV Challenges Misleading Public Comments

-          What We Requested from CFA

-          What Little We Got In Return - 

VFBV INJUNCTION APPLICATION TO SUSPEND EBA PROCESSING

Our injunction to suspend the processing of the UFU EBA because it contains clauses contrary to the CFA Act affecting volunteers will be considered by the Supreme Court on Wednesday morning.

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MISLEADING PUBLIC COMMENTS BY CFA CEO FRANCES DIVER

In repeated statements to the media, CFA CEO Frances Diver has said that as part of the VFBV-CFA consultation arrangements CFA had provided VFBV with “extensive documentation”.  This is simply untrue and we are disappointed that Ms Diver would try to rewrite the truth.

Ms Diver’s failure to present the facts with accuracy also extends to claims that the arrangements negotiated with UFU, principally through a Statement of Intent document by CFA and UFU, provide protection to volunteers and the role they play and somehow protects the powers of the Chief Officer under the CFA Act. This is simply wrong. 

There are two critical problems with the ‘Statement of Intent’ document, its supposed protections for volunteers are very limited at best and at any rate the document has no legal standing and is unenforceable.  If the EBA is registered it is not impacted by the statement of intent documents and where its terms and requirements differ from the CFA Act, it prevails over the Act as a matter of law.

That is why we are left with no option other than to take legal action to try and stop the EBA while it still contains clauses which negatively impact on volunteers and the operations of CFA as a volunteer based fully integrated service.

WHAT WE GOT FROM CFA

In respect to Ms Diver’s public claims that “CFA has provided VFBV with extensive documentation” during the supposed consultation period, here are the facts.

The only information we received from CFA was:

1. At the start of the period for consultation, CFA gave VFBV a single copy of version 17.4 of the proposed EBA on 24 June.  The following week the document was made generally available to CFA members on the CFA website.
2. On 12 August 2016 (at 10:57 am) – A letter from CFA lawyers advising VFBV that CFA had considered the matters raised by VFBV and in light of the bargaining position of the UFU and in the context of the policy position of the Victorian Government, no further changes had been able to be agreed.  CFA attached a draft 2½ page joint statement of intent by CFA and UFU, and a draft one page letter from the CFA Chair to the CFA Chief Officer instructing that the draft EBA has been approved by the CFA Board.
3. On 12 August 2016 – A letter from CFA Lawyers notifying VFBV of CFA’s intention to request that employees approve the EBA by voting for it etc.  Although not sent directly to VFBV, CFA also posted to the CFA intranet at 6:44 pm on 12 August 2016 advising of the CFA Board decision re the proposed EBA, and attaching the letter to the CFA Chief Officer; the CFA/UFU intent statement; the CFA Board resolution; and copy of the final version of the EBA

This information can hardly be described as “extensive documentation”.

WHAT WE REQUESTED FROM CFA

Now compare this to the questions we raised that CFA refused to answer and information we requested that CFA wouldn’t provide to address the concerns identified by VFBV and its members:

•          Is clause 7A as presented to us (in EBA version 17.4) the full extent of proposed protection for volunteers from alteration of their rights, roles and operations by the proposed EBA?
•          What is the model of a Greater Alarm Response System (GARS) being proposed to be implemented within CFA?  How will a CFA GARS approach operate in practice?  Has CFA completed an analysis of the volunteer workload created by such an approach, and if so can you please provide this analysis for volunteer consideration?
•          What is the model that CFA is proposing, to meet its obligation under clause 43.2.7: “seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations…” (District 2, 7, 8, 13, 14, 15 and 27), including:

o   Flow on workload operational and fire ground safety implications for volunteers and volunteer brigades;

o   Step up implications and additional workload implications for volunteer brigades and volunteers at integrated brigades.

o   Impact on support availability to volunteer brigades currently supported by integrated brigades.

o   Impact on integrated brigade paid firefighter crews being more frequently dispatched out of primary brigade service areas on volunteer workload and primary service area risk exposure etc.

•          What are the “agreed impact of” BASO and Volunteer Support program by persons covered by the proposed EBA? (referenced in clauses 15 & 16).  VFBV continues to contest that the BASO and Volunteer Support Programs are not appropriate inclusions in the Operational EBA and are fundamental non-operational volunteer support programs.  As such any changes to these programs impact on volunteer brigades across Victoria.  Inclusion of the BASO and VSO clauses in this EBA is a direct contradiction of the Premier’s and Minister’s assurances that the proposed EBA has no effect on volunteer brigades.
•          What process will CFA be using to ensure VFBV and volunteers are genuinely consulted on matters arising from the EBA’s Consultation and Dispute Resolution processes? (Clauses 21, 26, 27 and 58)
•          What process will CFA be using to ensure VFBV and volunteers are genuinely consulted on matters arising from discussions initiated by Clause 41?  What process will CFA use to ensure the results of that consultation and volunteer inputs specifically - can be genuinely considered in decision making?  How will dispute resolution provide guaranteed fair and equitable outcomes for volunteers?

Because none of this information was provided during the consultation period, VFBV:

•          wrote to CFA on 29 July further requesting this information;
•          following CFA’s failure to again provide the requested information, we reiterated the request for it at the meeting with CFA Board on 1 August 2016;
•          arising from CFA’s continued failure to provide the request information, we again requested the information on 7 August 2016 as part of our submission to the CFA Board in response to their request for VFBV’s suggested amendments to problematic EBA clauses (per the request made by CFA Board at the meeting of 1 August 2016); and,
•          yet again on 12 August 2016 we requested the information we had sought over the preceding weeks.

Further, on 7 August 2016, following statements made by the CFA Chief Officer to the Legislative Council Committee on Environment and Planning’s Inquiry into fire season preparedness that he had received further information on matters relating to ‘CFA’s 14 threshold issues’, we requested such information, including details on how the threshold issues would be dealt with in a legally enforceable manner in association with the application to register the EBA with the Fair Work Commission.

We are yet to receive this information from CFA.

As members can see from the details above, the information provided to VFBV was negligible and can hardly be said to meet anybody’s definition of ‘extensive documentation’. CFA’s failure to provide important and relevant information to us during the consultation process and in the period thereafter when we were still daring to hope that we could come to a settlement with the new CFA Board that met the obligations and intent of the CFA Act is a bitter disappointment.

Andrew Ford

CEO

Volunteer Fire Brigades Victoria

On behalf of the VFBV Board and CEO, the following is an update on today’s legal proceedings.  Download the Media Release here.

The VFBV injunction on CFA to prevent furtherance of a CFA/UFU EBA until there had been consultation on its content that affected the state’s 60,000 volunteers has been replaced by a more onerous undertaking by CFA to the Supreme Court.

As you would be aware, on Friday 10^th June, VFBV applied and was granted a Supreme Court Injunction to require the Country Fire Authority (CFA) to enter meaningful consultation with us on the contents of the proposed CFA-United Firefighters Union (UFU) 2016 Enterprise Agreement, specifically those parts which may have an impact on CFA Volunteers’ organisational arrangements and volunteer operational capacity. Incredibly, as of writing, we are still yet to receive the actual current version of the Agreement that the Government have tried to tell everyone fixes all volunteer concerns, despite Government having not formally engaged in genuine consultation with VFBV on a single occurrence. Whilst the agreement has apparently been in negotiation with the UFU for over 1,000 days, Government has yet to provide VFBV a single day to hear and discuss volunteer concerns prior to decisions being made.

Our Supreme Court Injunction was due to expire today, Wednesday June 22.

Following the events of last week, where the Government sacked the nine members of the CFA Board due to their refusal to approve the agreement (despite the court injunction), and accepted the resignation of the CFA Chief Executive Officer Lucinda Nolan, we have been in correspondence with CFA as to how they envisaged to genuinely consult.

Following negotiations between our legal teams, overnight last night we reached agreement with the CFA on a proposal to not seek an extension of our initial injunction, on the basis that CFA provide written undertakings to the Supreme Court, which would provide VFBV with a court supervised process to ensure genuine engagement occurred with the new CFA Board and CEO. Supreme Court Justice McDonald consented and approved the lifting of the injunction on the basis that CFA make a legal undertaking supervised by the court to;

On or before the 24 June 2016, the CFA must provide to VFBV for the purposes of consultation, a copy of the proposed agreement to replace the current 2010 EBA

The CFA Chair & CEO and/or the Board is to meet with VFBV on the 8^th July 2016 and at such further times as are mutually convenient to the parties for the purposes of consultation and to provide opportunity for volunteer concerns and impacts to be heard and considered

The CFA is not permitted to initiate the EBA approval process prior to the 20^th July 2016

And CFA is required to provide VFBV 3 business days’ notice of its intention to sign or agree to a new EB on or after the 20^th July

At approximately 10:45 this morning, Supreme Court Justice McDonald issued a Court Order binding CFA to the above agreement. We are told the Court order has the same basic legal affect and penalties as the injunction, but in addition provides us further assurances.

What’s the difference between an Injunction and a Court Order?

In layman terms, an injunction is a court order NOT to do something, whereas a court order can also order CFA to DO something.

Shortly following today’s court proceedings, the Premier released a Media Release under the title “Setting the Record Straight on the CFA Dispute” and stating amongst other things;

“The Government welcomes the lifting of the Supreme Court injunction.”

By only giving half the story, it would appear to be an obvious ploy to “spin” or mislead the public over what actually occurred in court today. We believe this approach goes directly to the Government’s credibility. We have attached a copy of the proposed consent orders agreed last night, that CFA solicitors were required to read out in court this morning in order to enter them on the record, so you can make your own mind up as to the governments version of events.

Make no mistake, today’s Court order requires CFA to genuinely consult with VFBV and volunteers, and we may make application to the court at any point if the orders are not complied with.

Next Steps

As soon as we are in receipt of the final versions that the government has stated includes new safeguards and changes, we will be providing all Brigades/Groups/Members access and opportunity to provide comment and/or feedback directly back to VFBV. We will also provide further analysis to assist you understand the document and help you identify if there are any impacts on you or your Brigade for your discussions. We will make all efforts to facilitate this process within the court deadlines, and have reserved our right to report back to the court on our progress. Your feedback will then be incorporated directly into our consultations with CFA. Time will be tight, so we encourage you to frequently monitor our website for any breaking news. CFA is required to provide the documentation by the close of business 24^th June which is this Friday.  

On a final note, we again remind members that we have no interest in the pay and conditions of our paid staff, and if the agreement only restricted itself to those matters, we would have no argument. We are seeking to preserve a CFA that is a fully integrated one where paid staff and volunteers work side by side as equals, respect each other on the basis of their competency and experience not their pay status, and work together in an inclusive and supportive organisation that works as one, and for the benefit of our communities and the Victorian Public.

We continue to advance the position of our members that any future final deal should not override or side-step the organisational and operational arrangements set out in the Victorian CFA Act, and we support the concerns as raised by our Ex Minister Jane Garrett, the Ex-9 Member CFA Board, the Ex Chief Executive Officer Lucinda Nolan, the Chief Officer Joe Buffone and the entire organisational leadership team, including the Deputy Chiefs, Assistant Chiefs and Executive Directors.

Among many other things, the CFA Act:

• recognises that CFA is first and foremost a volunteer based organisation in which volunteers are supported by employees in a fully integrated manner
• requires the CFA to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of CFA volunteers to provide CFA services
• requires the CFA (and Victorian Government) to meaningfully consult with VFBV and the 60,000 volunteers it represents on any matter that may affect them before relevant decisions are made.

‘Meaningfully consult’ means genuine consultation where, in this case, VFBV and its members can help shape the final decision by CFA (and Government where relevant).