Fair Work Act 2009

s.739 - Dispute resolution

Ashley Virgona; Bradley Smith; Rachel Wardell; Rodney Barber; Dane Robinson; William Jennes; and Renee Venille

(C2025/2716; C2025/2718; C2025/2719; C2025/2729; C2025/2739; C2025/2742; C2025/2746)

Alleged dispute about a matter arising under an enterprise agreement.

• [1] On 9 April 2024, Ashley Virgona, Bradley Smith, Rachel Wardell, Rodney Barber, Dane Robinson, William Jennes and Renee Venille (collectively, the Applicants) filed applications with the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act). The Applicants made their respective applications raising a dispute with the Victorian Fisheries Authority (VFA) pursuant to clause 13 of the Victorian Public Service Enterprise Agreement 2024 (the Agreement).[1]

• [2] Following a conciliation conference before the Commission, it would appear that one of the scenarios in clause 13.11(c) of the Agreement took hold and further, that an objection was made pursuant to clause 13.12(b) of the Agreement, such that the 7 application files were allocated to me at approximately 5.30pm on 14 April 2025 for the purpose of arbitration. Also at this time, the Applicants filed applications for an interim decision pursuant to s.589 of the Act. I listed the matters for a hearing that took place at 4.00pm on 15 April 2025.

• [3] The Applicants each filed a Form F10 - Application for the FWC to deal with a dispute in accordance with a dispute settlement procedure when lodging their respective applications. These detail that their dispute relates to clause 11 of the Agreement, which concerns 'Implementation of Change.' The Applicants have outlined that the VFA notified employees of a proposed major change on 13 February 2025 which is said to impact approximately half of all positions at the VFA. More particularly, the impacts are said to include the abolition of current positions, the creation of new positions that are subject to an expression of interest process, changes in responsibilities and reporting lines and/or titles and/or accountabilities, the closure of five locations and the creation of three new locations. The Applicants assert the VFA's stated rationale for the proposed changes is to achieve budget savings of $9.4 million and ensure it adapts to broader changes in fisheries management.

• [4] The Applicants have outlined that since 13 February 2025, employees and the Community and Public Sector Union (CPSU) have met with the VFA seeking relevant information about the change and that questions and requests for documents have been submitted to the VFA via a dedicated email account for the proposal.

• [5] The broad assertion of the Applicants is that the VFA has failed to provide all relevant information about the change and is not engaging in genuine consultation. This is said to be because the VFA has failed to provide timely, sufficient and thorough information and responses.

• [6] In support of this assertion, the Applicants submit that the VFA has not provided information as follows, in response to requests made on 5 March 2025:

a) The annual costings for the existing Queenscliff Fisheries station, which is proposed to be abolished;

b) The establishment and ongoing costs of establishing 3 new proposed community hubs;

1. Details of the cost savings to be achieved by relocating Fisheries Officers from Queenscliff to the new proposed community hub at St Leonards;

• [7] The Applicants also assert the following in relation to requests made on 11 March 2025:

a) The VFA has not provided sufficient information in response to the request for the costings relevant to the change proposal and business operations;

b) The VFA has not responded to the request for information disclosing the total annual payment made to VFA ambassadors; and

1. The VFA has refused to provide a response for the request, which was resubmitted on 25 March 2025, for information about current vacancies, and whether they represented cost savings and whether such savings had been included in the proposed changes.

• [8] As to other requests made on 25 March 2025, the Applicants assert:

a) The VFA has not been forthcoming in response to a request for information about which operational costs were being cut and details going to how the VFA had calculated the quantum of savings;

b) In response to a request for a list of roles and the details of positions that had been advertised as vacancies during the previous 12 months, the VFA has, variously, questioned why this information was useful, stated they have changed systems and said that they would respond, without doing so; and

1. The VFA has not provided information in response to a request for a list of vacancies in the organisation that are being absorbed (i.e. not being filled), instead stating that their system had changed twice and information gets lost.

• [9] The Applicants also contend that on each of 1 April 2025, 2 April 2025 and 4 April 2025, they sought clarification regarding errors in the current organisational charts and the proposed organisational charts of the VFA and that despite agreeing there were errors, the VFA did not respond further. Further, on 2 April 2025, the Applicants contend that they requested a calculation of the approximate average costing of one full-time equivalent employee but this request has not been met with an adequate response, with the VFA stating they cannot disclose this information for reasons of privacy and instead referring them to the salary ranges in the Agreement.

• [10] The Applicants also assert that while the VFA committed to publishing all questions and answers on its SharePoint hub, this has not been done. Moreover, the Applicants submit that the VFA has not provided employees relevant information and specific financial details on separation packages available and assert that calculators available on the VFA Sharepoint Hub are not accurate. They claim that employees have been advised during 'one-on-one' sessions that the calculators are incorrect and that they should seek their own financial advice about their potential entitlements. The Applicants argue this is inadequate and moreover they should not have to incur the expense associated with obtaining such advice.

• [11] It has also been outlined that employees had until the close of business on 21 March 2025 to submit alternative proposals to the VFA but that this deadline was extended following conciliation before Commissioner Allison on 7 March 2024 in an application made pursuant to s.739 of the Act by the CPSU,[2] whereby the VFA agreed to provide answers to questions submitted by CPSU members and allow both such members and the CPSU to submit alternative proposals until the close of business on Wednesday 16 April 2025.

• [12] Following the filing of this application there was discussion and then agreement between the parties for the costings attached to full time Fisheries Officers roles (Grades 3-5), an updated organisational chart and information going to the source of savings to be provided, as well as the anonymisation of Q&A's so that they can be published on the VFA's SharePoint hub. At the hearing, the Applicants asserted that the organisational chart subsequently provided is still inaccurate and that this inhibits their capacity to submit an alternate proposal. The Applicants further confirmed that they had received some information on the source of the savings (aside from the proposed redundancies outlined as part of the proposed major change) and the anonymised Q&A's, albeit they had not yet had time to review them.

• [13] The Applicants submitted if the interim orders are not made, the relief they seek in making their applications will be negatively impacted. The Applicants argue that they have sought relevant information so as to inform their alternative proposals and ensure that their proposals meet the indicated rationale and benefits of the VFA proposal. The Applicants are aggrieved because they say that they only received some of the material they have previously requested on 11 April 2025 and 14 April 2025, despite requesting material since 21 February 2025. The Applicants submit they cannot meaningfully consider this additional information and make an alternative proposal within the timeframe that has been imposed by the VFA, which expires on 16 April 2025. In this regard, the Applicants detailed their working arrangements, operational responsibilities, hours of work, RDOs, public holidays and rest periods, caring responsibilities and their right to disconnect. The Applicants also pointed to the proposed date of the announcement of the new structure having been brought forward from 26 May 2025 to 19 May 2025.

• [14] The Applicants confirmed the relief they seek in bringing their substantive applications comprises orders that:

1. The VFA make available all relevant information to employees about the proposed change, particularly concerning costings and the breakdown of savings from the proposed change; and

1. The VFA extends the timeframe for employees to provide alternative proposals by three weeks following the VFA's production of documents, relevant information and all responses to questions published on the VFA SharePoint Hub.

• [15] The Applicants asserted that the information provided to date that is said to address the budgetary considerations and costings that underpin the VFA's proposal is flawed and this has compromised their capacity to submit alternate proposals that will meet the rationale and benefits behind it. The Applicants assert that the Proposed Change Position Analysis document[3] contains numerous errors and is inconsistent with organisational charts of the VFA. The Applicants also criticised the VFA's 17 March 2025 responses to the 309 questions submitted by CPSU members as being inadequate for their purposes because the answers provided were only in response to CPSU questions and they do not include other relevant questions submitted by non-union members. Relatedly, the Applicants assert that 30 of the 35 positions identified for redundancy are positions currently held by members of the Fisheries Officers Association. It was acknowledged that members of the Fisheries Officers Association had been participating in the consultation process both individually and through "the Union".

• [16] In seeking interim orders that essentially restrain the VFA from taking any steps to finalise any decision concerning its major change proposal, the Applicants rely on an asserted refusal by the VFA to extend its timeframe for employees to provide alternative proposals to its proposed major change. The Applicants submitted the decision and order of Wilson C in United Firefighters' Union of Australia v Country Fire Authority; Country Fire Authority T/A CFA v United Firefighters' Union of Australia,[4] supports the outcome they seek. The Applicants also rely on the decision in CEPU v Optus Administration Pty Limited.[5]

• [17] In this case, the Applicants have asserted that the VFA has not complied with clause 11 of the Agreement. As this is denied by the VFA, the Applicants have referred this dispute to the Commission. I am satisfied that the case involves a dispute "about a matter arising under this Agreement" and that the Commission has been requested to determine the dispute by arbitration. My determination that the Commission has jurisdiction to deal with the dispute is not challenged by the VFA. Clause 13.13 of the Agreement provides that in dealing with a dispute through arbitration, the Commission may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the Act. Section 589 lies within Subdivision B and s.589(2) provides that the Commission may make an interim decision in relation to a matter before it.

• [18] The principles applicable to applications for interim orders are well established. The Applicants are required to persuade the Commission that they have an arguable case with some reasonable prospect of success and that the balance of convenience favours the making of the order(s) sought.

• [19] Clause 11 of the Agreement carries the title Implementation of Change. Clause 11.1 provides as follows:

"11.1 Where the Employer has developed a proposal for major change likely to have a significant effect on Employees, such as a restructure of the workplace, the introduction of new technology or changes to existing work practices of Employees, the Employer will advise the relevant Employees and the relevant Union covered by this Agreement of:

(a) the proposed change as soon as practicable after the proposal has been made; and

(b) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(c) the likely effects on the Employees' working conditions and responsibilities; and

(d) the rationale and intended benefits of any change, including improvements to productivity, if applicable."

(a) provide in writing all relevant information about the change including:

(ii) information about the expected effects of the change on the employees and

(iii) any other matters likely to affect the employees.

(b) regularly consult with Relevant Employees and the relevant Union covered by this Agreement; and

(c) give prompt consideration to matters raised by the Employees or the Employees relevant Union covered by this Agreement; and

(d) if appropriate provide training for the Employees to assist them to integrate successfully into the new structure."

• [21] Read together, the wording of clauses 11.1 and 11.8 would seem to require the VFA to advise the relevant employees of the rationale and intended benefits of the proposal for major change in writing. Certainly, the wording of clause 11.8 does not limit the information to be provided to only those matters described in clauses 11.8(a)(i) - (iii).

• [22] It may be noted that the Victorian Fisheries Authority Change Proposal (Clause 11) document[6] outlined that the proposed changes are intended to support the VFA to realise government budget savings and ensure the VFA adapts to broader changes in fisheries management and specifically, the following:

• Achieve significant government budget savings and

• Ensure the VFA adapts to broader changes in fisheries management

The last significant reform of the VFA's strategic priorities and structure took place in 2013. The VFA is now operating in a different budgetary and operating environment.

The proposed structure seeks to respond to the evolution of the state's fisheries over the past 10 years, including the following drivers of change:

• Victoria's commercial fisheries have changed with a transition away from net fishing in most of our bays and inlets.
• Greater focus on organised, serious fisheries crime to ensure our fisheries remain protected.
• High rate of recreational fisher compliance sees a focus on community engagement, education, and fishing stewardship.
• Fisheries management is now heavily supported through partnerships with external science providers for best practice research and planning.
• Victoria's fisheries are being maintained at record levels with all species harvested at sustainable levels.
• Digital reform of the licensing system will increasingly become a more streamlined process.

The VFA workforce is currently 192 filled positions. It is proposed that the organisation reduces its total workforce by 35 positions as a result of this change proposal.

1.2 The intended benefits of the proposed changes

The intended benefits of the proposed changes will include:

• A reformed operating model that supports the VFA to achieve required savings
• Improved engagement with recreational fishers who overwhelmingly abide by rules and regulations who do not pose a risk to the sustainability of our fisheries
• Greater emphasis on fisher stewardship and the continued management of critically endangered species complementing the progress made since 2013

• • Increased focus on organised, serious fisheries crime to ensure our fisheries remain protected."[7]

• [23] Attached to the Victorian Fisheries Authority Change Proposal (Clause 11) document were hyperlinks to documents that address budget reprioritisations in the Victorian Public Service, current and proposed organisational charts and the Proposed Change Position Analysis document.[8]

• [24] When read within the broader context of clause 11 of the Agreement, it can be discerned one of the purposes for the requirement imposed on the employer to provide all relevant information in writing is so that employees can exercise the option available to them under clause 11.9 to submit an alternative proposal that will meet the indicated rationale and benefits of the proposal. The proposition that the capacity of employees to effectively do so will be impacted by the extent to which they are informed by the provision of all relevant information in writing is not unsustainable.

• [25] As has been outlined, the essence of Applicant's complaint is that the VFA has not provided all relevant information about its proposal for major change and therefore has not complied with clause 11.8(a) of the Agreement, with the impact being that it cannot submit an alternative proposal which will meet the indicated rationale and benefits of the proposal (per clause 11.9(a) of the Agreement). The Applicants advanced their case in relation to the quality of the information that has to date been provided by the VFA on the basis of 'bar table' assertions.

• 1. A letter from Travis Dowling, Chief Executive Officer of the VFA, to the CPSU dated 13 February 2025,[9] which, inter alia, foreshadowed consultation and invited the submission of alternative proposal up until the close of business on 21 March 2025;

• 2. The Victorian Fisheries Authority Change Proposal (Clause 11) document[10] dated Thursday 13 February 2025;

• 3. The Proposed Change Position Analysis document;[11]

• 4. The VFA's 17 March 2025 responses to the 309 questions submitted by CPSU members;[12]

1. An asserted 58 separate occasions upon which it has met with employees;

1. An asserted 350 pieces of correspondence sent in response to correspondence received from employees;

1. An agreed process with the CPSU, whereby the VFA agreed to provide answers to questions submitted by CPSU members and allow them and the CPSU to submit alternative proposals until the close of business on Wednesday 16 April 2025.

• [27] The VFA therefore rejects the proposition that all relevant information about the changes has not been provided in writing and has submitted that the Applicants have received the information that clause 11.1 of the Agreement entitles them to. The VFA maintains the obligation imposed on it is to provide 'information', not documentation, relying on the decision of Boroondara City Council v Australian Municipal, Administrative, Clerical and Services Union and Australian Municipal, Administrative, Clerical and Services Union v Boroondara City Council.[13]

• [28] It seems relatively clear that the rationale of the VFA's proposed major change is a State government imperative to achieve significant budget savings, coupled with an assessment the VFA has made that it has become necessary to alter its operating model in order to adapt to "broader changes in fisheries management." As regards the latter consideration, the Victorian Fisheries Authority Change Proposal (Clause 11) document has enunciated the "drivers of change" and the proposal to reduce the VFA workforce by 35 positions. Those 35 positions are particularised in both the Victorian Fisheries Authority Change Proposal (Clause 11) document and the Proposed Change Position Analysis document by branches/divisions and salary bands. As such, I consider that an understanding of the approximate savings from the headcount reduction would be discernible by reference to the particulars of VPS salaries in the Agreement. As to the stated "drivers of change", while the VFA has evidently formed the view that its operational focus needs to shift, it may be that the Applicants consider some or all of them are debatable. Placing the labour cost component of the budgetary savings the VFA has determined are achievable through the proposed major change to one side, the Applicants have confirmed that they have recently received some information on the source of the savings, albeit they advised at the hearing that they had not yet had time to review it.

• [29] Having regard to these considerations, while I accept that the Applicants have at least an arguable case, for the purposes of an application for interim orders, that the VFA has not fully complied with its obligations under clause 11 of the Agreement, I am hesitant to conclude that it is a case with reasonable prospects of success based on the material presented to the Commission.

• [30] In their Form F1 applications made on 14 April 2025, the Applicants outline that they seek interim orders that the VFA:

a) not take steps to commence its panel for considering employees' and any relevant union's alternative proposals; and

b) not take steps to make any final decision on the matter concerning the proposed restructure of the VFA under clause 11 of the Agreement; and

1. continues to accept any alternative proposals submitted by employees and any relevant union until the resolution of the dispute.

• [31] The Applicants seek a pause in the 'change proposal process' the VFA has embarked upon. They assert that they cannot utilise the opportunity afforded to them under clause 11.9 of the Agreement (pursuant to which they can submit an alternative proposal which will "meet the indicated rationale" of the VFA) and perhaps bring about a new/altered proposal for major change because they do not have financial information that underscores the VFA proposal, such as the costs associated with both the new organisational structure and operating model and the other measures that have been identified as capable of reducing the VFA's expenditure.

• [32] The VFA argues that the proposal for major change was announced two months ago, that it has met the requirements in clause 11.8 of the Agreement and that the Applicants have not acted within the indicative reasonable timeframes for the submission of alternative proposals by employees in accordance with clause 11.9(c) of the Agreement.

• [33] I am not satisfied the Applicants have provided a compelling explanation as to why they waited until 9 April 2024 to file their s.739 applications, particularly when the proposal for major change was announced on 13 February 2025 and was accompanied by the Victorian Fisheries Authority Change Proposal (Clause 11) document and the Proposed Change Position Analysis document. If there has been ongoing dispute about the accuracy of organisational charts provided by the VFA, and disquiet about requests for information that may have gone unanswered, or a concern about a lack of useful financial information, an application to the Commission could have been made earlier. Had an application been made earlier, the Applicants would not be facing the complaint from the VFA that a delay at this point in time is prejudicial to it and other VFA employees. I subscribe to the view that an applicant for interim orders should not act with delay, particularly if the delay has the potential to cause detriment to the respondent in connection with the proposed orders.[14] In any event, as outlined above at [27], the Applicants have confirmed that they have recently received some information on the source of the savings. I consider this information could be reviewed for the purpose of assessing whether it could inform an alternate submission.

• [34] I have also had regard to the context within which the application for interim orders has been made:

1. On or about 11 March 2025, the VFA agreed a timeline with the CPSU, whereby the CPSU had a deadline of close of business on 16 April 2025 to submit an 'alternative response' to the change proposal.

1. The VFA has unilaterally imposed this same deadline on the Applicants.

1. The Agreement does not specify that the Applicant's capacity to submit an alternative proposal expires.

1. Clause 11.9(a) requires that such alternative proposals be made "in a timely manner so as not to lead to an unreasonable delay in the introduction of any contemplated change."

1. Clause 11.9(c) outlines an "indicative" reasonable timeframe but also makes clear that the extent of consultation in each case will "be commensurate with the scale of the proposed major change and the likely significant effect for Employees."

1. The Applicants have had ongoing concerns about the information in writing that has been provided by the VFA in circumstances where at least 30 of the 35 positions identified for abolition are in classifications they currently occupy.

1. The VFA has determined to announce the 'final' structure in approximately 4 weeks' time, on 19 May 2025.

• [35] In these circumstances, I consider that it remains open to the Applicants to submit an alternative proposal, that the submission of an alternative proposal in the very near future would fall within a scenario which might reasonably be regarded as steps, timeframes and an extent of consultation "commensurate with the scale of the proposed major change and the likely significant effects" on the Applicants and further, that the VFA would have no basis to refuse to either consider the proposal or provide a response ahead of its proposed 19 May 2025 announcement.

• [36] For these reasons, I decline to issue the interim orders sought.

• [37] At the hearing, the Applicants confirmed the relief they seek in bringing their substantive applications comprises orders that:

1. The VFA make available all relevant information to employees about the proposed change, particularly concerning costings and the breakdown of savings from the proposed change; and

1. The VFA extends the timeframe for employees to provide alternative proposals by three weeks following the VFA's production of documents, relevant information and all responses to questions published on the VFA SharePoint Hub.

• [38] However, if the Applicants were to succeed at final hearing, the likely determination would be that the VFA did not comply with the obligation in clause 11 of the Agreement to provide in writing all relevant information about the proposed change. The Agreement does not specify any consequence for a failure to comply with clause 11. Nor does it outline that the Commission can stop the VFA proposal from being implemented. Any action for the breach of an Agreement can, however, be pursued in a court of competent jurisdiction.

• [39] So while I have determined not to issue the interim orders, the Applicants should, in addition to deciding whether or not to promptly submit an alternative proposal, consider their position in relation to their substantive applications and the associated Form F52 - Application for an order for production of documents, records or information to the Fair Work Commission they simultaneously lodged with the Commission on 9 April 2025.

• [40] The application for interim orders is refused.

Mr A Virgona on his own behalf and the other Applicants

Mr B Holding Clark, counsel, for the Victorian Fisheries Authority

[4] [2013] FWC 6546.

[5] Smith C, 4 December 2001, PR912122.

[13] [2022] FWC 998 at [26].

[14] AMWU v Laminex Group Pty Limited [2024] FWC 538 at [12].

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