VFBV Injunction Application to Suspend EBA Processing
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:
- 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.
- 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.
- 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
CFA Operational EBA Update
UPDATE 27 MAY 2016
CFA Operational EBA update - Friday 27 May 2016
This week, we have been attending hearings at the Fair Work Commission as part of Operational EBA negotiations.
We have now made formal written submissions to the Commissioner, and have again reinforced CFA’s position around any clauses proposed by the UFU that would:
- remove or diminish the ability of the Chief Officer to allocate and deploy resources flexibly and with agility
- require agreement or provide veto to UFU over CFA management decisions
- restrict or negatively impact on volunteers and BASOs.
The Commissioner will now consider our final submissions and will provide some potential next steps to resolve this matter.
A final hearing will be held at Fair Work on Monday, and the Commissioner is expected to discuss his thoughts and potential solutions to progress the current process.
This could involve handing down recommendations for all parties to consider.
CFA remains committed to resolving the matter as soon as possible, however any deal must be fair and affordable, and must not adversely impact on volunteers and needs to benefit Victorians.
From the Organisational Leadership Team – Lucinda Nolan, Joe Buffone, John Haynes, Steve Warrington, Garry Cook, Ross Sullivan, Trevor Owen, Bob Barry, Gavin Thompson, Peter O’Keefe, Paul King, Kate Harrap, Emma Tyner, Phil Harbutt, Margareth Thomas, Terry Hayes.
UPDATE 18 MAY 2016
Following more enquiries regarding the EBA, the CFA Organisational Leadership Team has released an updated EBA Information sheet, which is replicated below. You can download a PDF version either form the link at the bottom of this page, or directly from the CFA website; http://news.cfa.vic.gov.au/news/operational-eba-update-18-may-2016.html
Ops EBA information
There are a number of questions that have been raised about the EBA negotiations. We
want to make sure you have the facts.
What is being said
Fire services are compromising safety by refusing to have a minimum 7 on a fireground before firefighting can begin.
Seven on the fireground is recognised best practice.
The proposed clause is limited to structural fires only and not for minor fires such as bin fires.
taking orders from the Minister.
CFA is attacking the 10/14 system.
CFA wants to introduce 8/8/8.
CFA is trying to change the Modern Award by introducing part time firefighting so that they can start to introduce brigades staffed by part-timers.
CFA is holding out on resolving this Agreement when there are only a few clauses left to negotiate.
Communication in the past has been limited – the union is the only communication that we are receiving.
The EBA does not affect the volunteers and it should not concern them.
The EBA does not include drivers for
Commanders
The Facts
The UFU has sought to introduce 50 new and separate clauses within the body of the EBA whose effect would be to require agreement from, or provide power of veto to, the UFU over CFA management decisions.
Examples of where UFU agreement would be required include:
- Formulation of and changes to position descriptions
- Formulation of and changes to work related policies
- Contracting out
- Lateral entry of career firefighters
- Part-time career firefighters
- Emergency response training
- Matters impacting volunteers
The UFU presented these clauses in a draft EBA to the Victorian Government. CFA argues it would be beneficial if all members covered by the proposed agreement had access to the current proposal (version 17.1) so that they are appropriately informed about the discussions, issues and impacts.
As this is a UFU document, and not CFA’s proposal, CFA has written to the UFU to seek their agreement to make it available to their members.
The clauses relevant to this issue are as follows:
Clause 44 and 44.2.7 together with clause 83.5 - The presence of 7 firefighters on the fireground prior to the commencement of operations save and accept where otherwise agreed between the UFU and CFA. (Note that fire-fighter is defined by the UFU document as 'paid firefighter').
As per the clause, there are no parameters set around the type of fireground incident (e.g. structural).
Seven career firefighters on a fireground before firefighting can begin is not recognised as best practice by other jurisdictions outside Victoria nor is it supported by peak body, AFAC.
The most recent reviews conducted in the UK recognise this as an out-dated worst case scenario approach rather than a contemporary risk-based service delivery model (Sir Ken Knight). A model based on “weight of attack” utilising scale, intensity and duration is the norm.
The principle and decisions around deployment must always be left to the incident controller based on risk assessment of the incident.
This clause would be a very expensive approach to delivering on any incident, irrespective of seriousness.
The cost issue is around having the number of resources available at any time rather than their actual attendance at a fire incident.
All career firefighter recruits will continue to have to meet the same minimum selection standards they always have. At the moment, less than 4% of CFA’s career staff are women. The fire services are determined to have a workforce that better reflects the community it serves.
We have not proposed at any time to change our use of contractors. This position was further supported when we proposed to rollover the 2010 Agreement.
The proposed offer included a pay rise of 19 per cent over four years (5% already provided), protected all current conditions and included new provisions in line with State Government election commitments.
Last January, the Fair Work Commission handed down draft recommendations to focus discussions between parties and to progress negotiations.
All parties were instructed to provide submissions on the feasibility and appropriateness of these recommendations, with a view to Commissioner Roe providing a set of final recommendations.
These were not final recommendations.
When Commissioner Roe asked whether the UFU would support his handing down of the final recommendations, they reserved their position.
CFA wants to resolve this Agreement as quickly as possible and continues to work with Government in an effort to resolve it.
At the same time as we are going through this process, the Government has committed to delivering the most significant investment for some time, including:
- 350 new firefighters
- Presumptive Legislation
- PTSD trial
- Emergency Medical Response
- Building and upgrading fire stations
- New fire trucks and equipment
The CFA Board Chair and the CEO are responsible for delivering and signing any new EBA.
CFA strongly supports consulting our workforce on changes and decisions about our future direction; however the UFU is seeking to have veto power over CFA decision-making in its business. That means the union must agree on changes we are proposing, not just be involved in consultation.
Decisions that should be made by the Chief Officer, Chief Executive Officer and other management will instead be in the hands of the UFU without any accountability for the running of the organisation.
All CFA members have a role in community safety and education. Our role in the community is not just about fighting fires, but about educating the community about being prepared and prevention. Often, it’s volunteers who have the connections and understanding within their own communities and therefore it is the right approach for them to conduct such services.
CFA has not challenged the 10/14 roster.
Our offer involved a rollover of the 2010 Agreement and does not seek to change this roster system.
We are seeking to amend the Modern Award so that we can offer individuals within our workforce greater flexibility over their careers.
Any introduction of part-time firefighting would be done after extensive consultation with our members and industrial bodies.
There are a significant number of clauses left to negotiate. Many of the clauses the union has asserted have been resolved have actually not been agreed to.
There are three areas that are of greatest concern to CFA management:
- Numerous clauses seeking UFU veto rights over management decisions;
- Clauses that impact on resourcing decisions that reside with the CO;
- Clauses that impact on people not actually covered by the EBA, such as volunteers, BASOs etc.
Many of the proposed clauses being proposed are unachievable and unaffordable.
There has been a confidentiality agreement in place under the FairWork Commission and we have been abiding by that. The confidentiality agreement is no longer in place and we will continue to update you on negotiations.
There are numerous clauses that either directly or indirectly impact our volunteer base. Some of these are listed below:
Clause 36.4 requires employees covered by the Agreement to report only to operational employees under the Agreement and to DCOs and the Chief Officer. This limits the capacity of qualified volunteers to, amongst other things, control incidents.
Clause 44.2.7, together with clause 83.5 require 7 professional firefighters to attend a ‘fireground incident before firefighting commences. This requirement will impact on CFA operational response involving volunteers in the sense that professional firefighters will not commence response work until 7 paid firefighters are present –regardless of the number of volunteers who are present.
Clause 45.14 requires 4 professional firefighters on all appliances unless otherwise agreed. This will impact on CFA operational response involving volunteers in that it will prevent response until a required number of paid firefighters are present, regardless of the number of volunteers who
are present.
Clause 45.15 prevents cross-crewing of appliances unless agreed by UFU and CFA. This will impact on CFA operational response involving volunteers in that it will limit or prevent cross-crewing of appliances by volunteers.
Clause 90 coupled with Schedule 20 provides strict limitations on provision of uniforms to operational staff covered by the Agreement – and limits the capacity of CFA to equip volunteer staff. It does this by clearly stating that stationwear and uniform and PPC must be ‘significantly visually distinguishable’ for professional firefighters and only made available to professional firefighters.
Clause 55 provides for rehabilitation units to be staffed by professional firefighter staff. CFA currently provides for rehabilitation units whose staff include volunteers and which carry out their roles effectively. UFU is seeking to exclude volunteers from the work without reason or justification.
Clause 17 deals with Community Education and provides that career fire-fighters will deliver community education and that volunteers may only do so when career firefighters are not available.
Clause 45.16 states that minimum staffing will include career fire-fighters to act as drivers for on-shift Commanders.
Organisational Leadership Team – Lucinda Nolan, Joe Buffone, John Haynes, Steve Warrington, Garry Cook, Ross Sullivan, Trevor Owen, Bob Barry, Gavin Thompson, Peter O’Keefe, Kate Harrap, Emma Tyner, Todd Perkinson, Phil Harbutt, Margareth Thomas, Terry Hayes
