[2013] FWC 4814

The attached document replaces the document previously issued with the above code on 18 July 2013.

The Decision has been refilled to correct paragraph numbering to incorporate a quote.

[2013] FWC 4814

Fair Work Act 2009_

s.739 - Application to deal with a dispute

Alleged dispute concerning the finalisation of guidelines to enable the operational use of instructors. Clause 99.16 Operational Use of Instructors and Clause 15, Dispute Resolution, of Country Fire Authority (CFA), United Firefighters' Union of Australia Operational Staff Agreement 2010.

[1] Following the decisions issued on 3 October 2012, 23 October 2012, and 29 October 2012 (PR529815, PR530503 and PR530823) the Guidelines for Operational Use of Instructors Pursuant to Clause 99.16 of the Country Fire Authority (CFA), United Firefighters' Union of Australia Operational Staff Agreement 2010 (the Agreement) operated on a trial basis from 30 October 2012. I listed the matter for report back in May 2013.

[2] Following a conference I issued the following Directions:

"[1] The decisions in this matter of 3, 23 and 29 October 2012 provided for the guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement to operate on a trial basis.

[2] The decisions provided that there would be a review at the end of the trial period and that if agreement cannot be reached any modification to the guidelines would be determined through arbitration as part of the finalisation of this dispute pursuant to the disputes settlement procedure of the Agreement.

[3] The review is to identify if there have been any instances where the guidelines have not operated consistent with the objective contained in the guidelines. Arising from a conference on 16 May 2013 the following steps were accepted by the parties:

1. The CFA will provide the UFU with details in respect to the two instances where the guidelines were utilised during the trial period by Tuesday, 21 May 2013. In particular:

(a) The nature of the incident, the reasons for the need, the date and the location.

(b) As a result of (a) where was relief sought before an instructor was considered.

(c) In considering instructors any available information about why it was determined that no suitable instructor was available.

2. The UFU will provide advice to the CFA as to any issues of concern arising from this information by Friday, 24 May 2013.

3. The UFU and CFA will meet at 1pm on Tuesday, 28 May 2013 to review the trial.

4. If there are any remaining issues the UFU is to identify instances where the guidelines have not operated consistent with the objective and any consequential proposals for modification to the guidelines by Tuesday, 4 June 2013. This is to be provided to the CFA and FWC.

5. The CFA is to respond to this material by Tuesday, 11 June 2013.

6. A further conference at FWC will be held if there are outstanding issues at 2pm on 20 June 2013.

7. If the matter is not resolved at that conference the matter will be resolved by an arbitration to determine if any modifications should be made to the guidelines;

(a) The UFU will be required to provide any material upon which they may rely by noon Monday, 1 July 2013.

(b) The CFA will be required to provide any material upon which they may rely by Monday, 8 July 2013.

(c) The UFU may provide any reply material by noon on Tuesday, 10 July 2013.

(d) The matter will be heard at 9.30am Thursday, 11 July 2013."

[3] The CFA provided information that Instructors had not been used pursuant to the guidelines during the trial period. They advised that two requests were made during the trial period for operational use of Instructors and that the requests were dealt with in accordance with the guidelines. Upon review the CFA advised that one of the incidents was a request to fill a role not covered by the guidelines. In respect to the second incident the CFA advised that relief was sought Statewide before an Instructor was considered and it was then subsequently determined that no suitable Instructor was available. Both Instructors considered were located at Fiskville and the first was due to deliver a course and the other was uncontactable. The need was eventually met by the MFB.

[4] The UFU was of the view that unless they were provided with further information particularly about the steps taken to seek relief prior to considering Instructors and the steps taken to determine the availability of suitable Instructors they could not properly determine if there have been any instances where the guidelines have not operated consistent with the objective contained in the guidelines and therefore if any modifications to the guidelines are required.

[5] Some further information was provided in response to some of the UFU requests and a meeting of the parties did proceed. However, the UFU was not satisfied particularly in respect to the lack of detail about the recall process used. The UFU advised on 20 June 2013 that "the UFU has been unable to review the guidelines consistent with your Recommendation of 16 May 2013 as the CFA has not provided the required information under that Recommendation." The CFA responded stating that it believed that the information required by the Statement and Directions of 16 May 2013 had been provided.

[6] A further conference on 20 June 2013 did not result in an agreement between the parties about the issue of the request for further information about the recall procedure.

[7] On 28 June 2013 the UFU advised that "As insufficient evidence was provided by the CFA as per the application of the guidelines, the UFU has nothing to add as to whether the guidelines need modification." On 1 July 2013 I advised the parties as follows:

"In partial resolution of the dispute FWC determined that the guidelines would operate on a trial basis until 1 April 2013. The guidelines were then to be reviewed to identify if there have been any instances where they have not operated consistent with the objective (set out in the guidelines) and if this has been the case what modifications to the guidelines should be implemented to avoid recurrence. The parties did meet to review the trial. The UFU is of the view that insufficient evidence was provided by the CFA as per the application of the guidelines. The issues surrounding this were not able to be resolved through conciliation. In this situation the UFU have advised that they have nothing to add as to whether the guidelines need modification. In this situation it appears that FWC should move to finalise the guidelines pursuant to Clause 99.16.6 of the Agreement. The dispute C2012/2410 would then be resolved by the making of the guidelines which would then become policy, subject only to amendments agreed or resolved consistent with the Agreement and which CFA would apply to the operational use of Instructors pursuant to the Agreement.

Subject to consideration of any further submissions about modifications to the guidelines consistent with the earlier decisions, the final guidelines would be Attachment A to Print 530823 with the last paragraph replaced with the following:

"These guidelines are the policy which the CFA will apply to the operational use of instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement."

The Commissioner believes it would be appropriate to hold a hearing to complete the final step in this matter as envisaged by the earlier decisions."

[8] On 9 July 2013 the UFU advised that it was unable to make any further submissions or provide evidence as to why FWC should not proceed to finalise the matter in the manner indicated. "In those circumstances, whilst reserving all of its rights, the UFUA's position is that the Commission should "finalise the matter"."

[9] I advised the parties in the light of this correspondence that I would proceed to determine this matter without further hearing and would consider any material provided up until noon 18 July 2013.

"The CFA would respectfully ask that the Guidelines be finalised in the way indicated by the Commissioner. The CFA does not consider that a hearing is necessary for that purpose."

[11] The CFA also outlined the process it proposed to use to advise employees of the Guidelines and of a Business Rule it proposed to issue to advise how they should be implemented.

"We refer to the above matter and to the material filed with the Commission today by the CFA.

As the Commission is aware, it handed down a Further Decision on 29 October 2012, in relation to this matter. Attached to that decision was 'Attachment A - Guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement' (Guidelines).

Following this decision, and the trial period, neither of the parties requested amendments to the Guidelines. Accordingly, we request that the Guidelines should remain as set out in the Further Decision on 29 October 2012 on the basis set out in my letter of 9 July 2013.

Further, the issue of the CFA Business Rule raised in the correspondence from Mr Mueller this morning does not arise within the terms of the Directions of 16 May 2013. Our client has previously noted that it will not accept anything that is inconsistent with any Guidelines.

Accordingly, we respectfully submit that the matter should now be determined and that attendance on Friday will not be necessary."

[13] I make no comment on the proposed CFA Business Rule. It does not form part of the resolution of this dispute.

[14] Both parties agree that the Guidelines should now be finalised in the manner I have proposed. Neither party has requested further amendment. I am not aware that the trial revealed any instances where the guidelines have not operated consistent with the objective (set out in the guidelines) and there is therefore no basis upon which to further amend the guidelines.

[15] The Guidelines will be Attachment A to Print 530823 with the last paragraph replaced with the following:

"These guidelines are the policy which the CFA will apply to the operational use of instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement."

[16] The final resolution of this dispute is that the Guidelines at Attachment A to this decision will apply to the operational use of Instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement.

Printed by authority of the Commonwealth Government Printer

Guidelines for operational use of instructors pursuant to Clause 99.16 of the Agreement

Provides direction when considering the operational use of Instructors

Guidelines for the operational use of instructors are separate from provisions for operational use for the purpose of mentoring of other firefighters as part of the instructional role as provided for in clause 99.15 and Clause 99.16.1 and for the purpose of the skills maintenance and development of instructors as provided for in clause 99.19 and for the purpose of the Fiskville training facility as provided for in Clause 99.21. Guidelines for other operational use pursuant to Clause 99.16 should ensure that operational use of instructors must not compromise the following objectives:

● Operational use should not compromise the training responsibilities of instructors

● All other practical alternatives to meet an operational need should be exhausted including the redeployment and recall of other firefighters and the use of overtime prior to the operational use of instructors

● The integrity of the system whereby adequate reliever resources are employed consistent with the Agreement and that otherwise rostering for relief on a voluntary basis is maintained

● The career opportunities, qualifications and job security of operational firefighters and instructors are not diminished or compromised

Subject to the outcome of the review referred to in note at conclusion of this document, it is considered that the following guidelines meet those objectives**.**

Instructor - External Appointment means an appointed Instructor who does not hold a CFA operational rank.

Operational Instructor means an appointed or seconded Instructor who at the time of their appointment to the Instructor role held a CFA operational rank and has completed a CFA recruit course.

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a level 2 or 3 incident; in addition to the following;

For an instructor to undertake any of the roles identified above, they must hold the requisite qualifications and relevant endorsement from the Chief Officer.

Provided that Firefighters and Station Officers are not available to perform such roles, Instructors may be used to fill a functional or specialist role within an IMT at a Level 2 or 3 incident.

In addition, where there is a Level 2 or 3 incident and Firefighters and Station Officers are not available to perform the required roles relating to the incident, Operational Instructors may be deployed to perform those roles (which can include specialist response activities) provided that:

a) Doing so does not result in them being unable to carry out scheduled training or in the cancellation or postponing of scheduled training; and

b) They hold the requisite qualifications and relevant endorsement from the Chief Officer applicable to the performance of the role.

Notification of the use of Operational Instructors for this purpose will be provided to the UFU Office by the CFA on a case by case basis at the earliest opportunity and the notification will indicate the time and location details of the incident and the nature of the incident, and the CFA officer who gives such notification to the UFU Office shall also ensure that the CFA'S Employee Relations Unit is informed as soon as practicable of the notification given to the UFU Office.

Operational use for fire station crewing - Operational Instructors Only

Operational Instructors may be deployed to a fire station to maintain minimum staffing subject to the following conditions;

● All practicable measures must have first been exhausted to fill the relevant vacancy with substantive Firefighters and Station Officers; this includes overtime and relief. Where it is practical and it does not compromise operational requirements, those measures are to include filling the relevant vacancy through relief from outside the relevant district. In particular for the State Duty Officer to approve the use of Operational Instructors for this purpose, the following must first be demonstrated:

○ The vacancy management process used to fill a vacancy with career Firefighters and Station Officers has been applied,

○ Overtime and relief provisions have been fully investigated,

○ No practical solution has identified available career Firefighters or Station Officers to be used for this work.

● Approval must be provided by the State Duty Officer (SDO) to utilise Operational Instructors for this purpose.

● When a decision is made to use an Operational Instructor for station crewing, the CFA will notify the UFU office prior to instructors being used for that purpose except where it would compromise operational requirements (in which case the notification will be given at the earliest opportunity).The notification will include time and location details, the nature of the operational requirement and/or incident, detail the steps that have been taken in order to satisfy the requirement of exhausting all practicable measures to fill the substantive vacancy mentioned in the first dot point including advice as to the outcomes of taking those steps. The CFA officer who gives such notification to the UFU Office shall also ensure that the CFA'S Employee Relations Unit is informed as soon as practicable of the notification given to the UFU Office.

● The use of an Operational Instructor for this purpose should not directly result in the cancellation of a planned / programmed training session. This includes the time off duty / rest period required following their shift.

● The availability of an Operational Instructor must consider the hours of work already performed.

● Any Operational Instructor undertaking these duties will be provided with a rest period as required prior to returning to normal duties.

● Any Operational Instructor shall be paid overtime where applicable in accordance with the provisions in the Agreement. This time cannot be accumulated and later taken as time in lieu. The instructor shall receive any other allowances or entitlements as provided for in their terms and conditions of employment when undertaking these authorised duties.

● The instructor will operate at their substantive operational rank when undertaking these duties.

Higher Duties or Relief to Operations Officer Positions - Operational Instructors Only

● Operational Instructors who are qualified to do so, are able to provide relief to an Operations Officer position, provided there is no Operations Officer or Station Officers able to perform the role.

● Operational Instructors at Fiskville where qualified to do so, are able to provide relief to those Operations Officer positions at Fiskville in the first instance.

● Instructors are able to participate in any after action review or operational debrief.

● Any planned or proposed use of an instructor to perform a functional role through the fire danger period as defined by a districts preparedness planning, must be discussed with, and be agreeable to the Operations Manager, MTD and the Instructor concerned.

These guidelines are the policy which the CFA will apply to the operational use of instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments agreed or resolved consistent with the Agreement.