s.739 - Dispute resolution

Dispute arising under enterprise agreement - work value / merit claim for threefold increase in emergency medical response allowance - dispute engages specific provision that precludes arbitration - general provision allowing for arbitration of allowances claims not applicable - Commission not authorised to arbitrate this dispute - in any event, not appropriate to determine application now, given IBWD proceedings before the Full Bench

• [1] The United Firefighters' Union of Australia (UFU) has made an application under s 739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedures in Divisions A and B of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (2020 Agreement). The divisional structure of the 2020 Agreement is well-known and requires no explanation. The application refers to the Commission for arbitration a dispute that has arisen between the UFU and Fire Rescue Victoria (FRV) in relation to the union's claim for an increase to the quantum of the emergency medical response (EMR) allowance that is referred to in clause 132 of Division A and clause 142 of Division B. The two EMR provisions are relevantly identical and set the EMR allowance at the rate of $2.30 per hour. On 8 September 2023, the amount of the allowance was raised to $2.65 pursuant to an order of Commissioner Wilson (PR765587) that increased all allowances in the 2020 Agreement by 9.5%. The order was made following the Commissioner's decision of 15 August 2023 that determined a dispute about the UFU's claim for an increase to agreement allowances that had been referred to the Commission for determination under the dispute resolution procedures in the 2020 Agreement (UFU v Fire Rescue Victoria [2023] FWC 2020).

• [2] The UFU contends that the Commission is empowered by clauses 85.3 of Division A and 92.3 of Division B to determine unresolved claims for increases to allowances, and that Commissioner Wilson had done precisely this in 2023. It submits that the 2020 Agreement confers a broad discretion on the Commission as to how it settles disputes that are referred to it and that in this case the Commission should determine that it is appropriate to raise the quantum of the EMR allowance to $7.95 per hour. It contends that a threefold increase is warranted in order to reflect the significant expansion in the skills, responsibilities and disabilities associated with the work to which the EMR allowance relates. The UFU submits that the work value of the duties is not reflected in the current amount of the allowance, and that it is fair and reasonable for the Commission to increase it substantially.

• [3] FRV contends that clauses 85.3 of Division A and 92.3 of Division B are general provisions relating to the determination of disputes about claims for new or increased allowances and that they do not apply to the EMR allowance which has its own specific adjustment mechanism that is found in clause 132.6 of Division A and clause 142.6 of Division B. These provisions state that the operation of the EMR clauses can only be varied by agreement of the parties in writing. FRV submits that the Commission is not authorised by the 2020 Agreement to arbitrate the dispute, because it would be contrary to these express terms. Alternatively, FRV contends that the Commission should decline to arbitrate the dispute because the parties are preparing for an intractable bargaining workplace determination (IBWD) before a Full Bench of the Commission in which the quantum of the EMR allowance is a matter at issue between the parties, and it is appropriate that any increase to the EMR allowance be considered holistically in the context of all of the disputed terms and conditions of employment that are before the Full Bench. FRV submits that in any event, the Commission should decide that, as a matter of merit, the proposed increase should not be granted because the gradual changes to the EMR duties over time do not justify a threefold increase.

• [4] Clause 85.3 of Division A and clause 92.3 of Division B allow the Commission to determine unresolved claims for new allowances or increases to existing allowances. These are the provisions relied on by the UFU. They provide as follows:

In accordance with existing practice the parties agree that any claim for additional allowance (sic), new allowance (sic), or increase to an existing allowances (sic), will be referred to the FWC for determination if the parties are unable to agree. The parties reserve their rights to put their respective positions (to avoid doubt, the parties agree that this clause applies despite the no extra claims clause).

• [5] Clause 132 of Division A and clause 142 of Division B of the 2020 Agreement are in substantively the same terms and prescribe arrangements for emergency medical response work. These provisions, and in particular clauses 132.6 and 142.6 of Divisions A and B, are those relied on by FRV. It suffices to cite clause 132 of Division A, which states:

132.1. The parties recognise that Emergency Medical Response (EMR) is a core function of FRV and is limited to Priority O cases as defined in sub clause 132.4 and to a maximum of 6000 calls annually.

132.2. The parties recognise that in accordance with FRV's duty of care, from time to time firefighters may need additional medical, psychological, peer or other assistance to cope with this demanding role. Such support and assistance shall be provided by FRV for firefighters, upon request in order to avoid any potential OH & S issues arising. In the context of firefighters duty of care, firefighters may exercise a choice not to pursue this role.

132.3. Every employee covered by this Division will be paid an amount of $2.30 per hour worked when available to be rostered for EMR duties. The allowance will also be paid for any and all periods where an employee is on leave or absent from the workplace. At an employee's election, this allowance shall be reduced to $0.95 per hour and will become an all-purpose allowance and will form part of the employee's base wages/salary for the purpose of calculating superannuation contributions. The amount shall be incorporated in the amounts set out at clause 133 (added to the amounts).

132.4. Definition of Priority "O" cases. Priority O cases are those event types, which constitute the highest probability of cardiopulmonary arrest. Only a limited subset of Priority "0" calls will be responded to as part of EMR. They are:

* AMPDS = Advanced Medical Priority Dispatch System

132.5. The provisions of this clause define the circumstances in which Firefighters can be directed to perform EMR. Employees covered by this agreement cannot be directed to perform EMR in any situation other than in response to a defined type of priority O case.

132.6. Should EMR duties expand beyond 6000 calls annually or from responding to Priority O calls as defined in 132.4 to other duties then the provisions relating to EMR will be reviewed by the parties and the operation of this clause can only be varied by the agreement of the parties in writing and will be dealt with as a variation to this Agreement.

132.7. Any review pursuant to 132.6 will be undertaken prior to the reaching of 6000 calls annually and prior to any proposed change to Priority O calls as defined.

132.8. The parties agree to review FRV EMR capabilities and range of services it currently provides. The outcomes of any such review shall only be implemented by agreement between the parties. (Emphasis added)

• [6] On 18 October 2024, the UFU branch secretary, Peter Marshall, wrote to FRV's acting director of people, Tom McPherson, seeking information on the number of EMR calls in each of Division A and Division B of FRV, and notifying FRV that the union sought to undertake the reviews contemplated by clauses 132.6 of Division A and 142.6 of Division B of the 2020 Agreement. Mr Marshall did not receive a reply. On 28 October 2024, the UFU notified FRV of a dispute at step 1 of the dispute resolution procedures in clause 21 of Division A and clause 26 of Division B of the 2020 Agreement. The dispute was said to relate to FRV's failure to provide EMR call data, and to a claim for a new or increased allowance for EMR duties in accordance with clause 85.3 of Division A and clause 92.3 of Division B. The letter noted that the number of EMR calls was likely to exceed 6000, that the EMR duties had expanded beyond the Priority 0 calls set out in clauses 132.4 of Division A and 142.4 of Division B, and that responding to EMR calls now involved an increase in work value and additional disabilities.

• [7] The parties did not resolve the dispute. The UFU considered that FRV had failed to engage with its proposals. On 5 December 2024 it lodged an application under s 739 of the FW Act that asked the Commission to determine the dispute. The form F10 identified the dispute as one pertaining to additional, new or increased allowances in accordance with clause 85.3 of Division A and 92.3 of Division B. Conciliation before the Commission did not settle the dispute. The application was then programmed and listed for arbitration. The parties filed written submissions and witness statements in accordance with directions.

• [8] The history of the EMR allowance provisions in the 2020 Agreement was set out in some detail in the UFU's submissions and is not contentious. An EMR allowance was first established at one of FRV's predecessor organisations, the Metropolitan Fire Brigades Board (MFB), by a decision of Deputy President Bryant of the Australian Industrial Relations Commission (AIRC) in 1996 (Print N6987). The decision created the Firefighting Services - Wages - Firefighters and Firefighting Officers Victorian - Award 1996, which introduced a new allowance of $1.00 for each hour worked by employees who elected to make themselves available to carry out emergency medical services training and to undertake the relevant extra duties when required. A further allowance of $0.50 per hour applied to employees' participation in a trial of the new arrangements. Bryant DP described the relevant duties at page 3 of his decision as follows:

'The First Responder role is designed to enable firefighters, first on the scene at an accident or medical incident, to handle life threatening situations with a basic level of skills and equipment. First Responders would respond in their usual fire appliance.'

• [9] Prior to the decision of Bryant DP, the MFB had paid an allowance of $2.00 to a designated firefighter in each workplace to be responsible for first aid. Generally, a firefighter would receive the allowance once every six shifts. The allowance compensated firefighters for first aid work within the fire station. The new EMR duties however were to be performed in the community, at fires and other incidents. A trial of the EMR arrangements commenced in 1998. It was confirmed as an ongoing program at MFB in 2001.

• [10] The first MFB enterprise agreement made after the commencement of the EMR arrangements was the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 1999. In that agreement, the EMR allowance was expressly incorporated into the wage rates in clause 28. Later, the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2005 (2005 Agreement) disaggregated the EMR allowance from the wage rate and reestablished it as an independent allowance, in the amount of $1.70 per hour (clause 25).

• [11] In 2010, the amount of the EMR allowance was increased to $1.93 per hour by clause 87 of the Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2010. Then in 2016, the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (2016 Agreement) set the allowance at $2.30 per hour. The 2016 Agreement now constitutes Division A of the 2020 Agreement.

• [12] The genesis of the EMR allowance in Division B of the 2020 Agreement dates back to 2010, when the Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 established a 12-month trial of the EMR arrangements at particular fire stations of the Country Fire Authority (CFA). From 2011 to 2019, EMR duties were progressively rolled out to all CFA career stations. In 2016, the UFU and CFA reached agreement as to the terms of the proposed Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2016 (Proposed CFA 2016 Agreement), however the agreement was not finalised. On 11 July 2019, the CFA Board decided to implement the terms of the Proposed CFA 2016 Agreement as a CFA operational staff policy (the CFA Policy). The Proposed CFA 2016 Agreement and the CFA Policy contained a term substantially the same as clause 142 of Division B to the 2020 Agreement.

• [13] The UFU contended that, having regard to the history of the EMR clauses, it was apparent that there had been no independent assessment of the appropriate quantum of the allowance since its inception in 1998. The 2005 Agreement had disaggregated the EMR allowance from the total wage rate but set the allowance only $0.20 higher than the original rate set in 1998. Since that time the EMR allowance had increased only in accordance with flat increases made to all allowances. The UFU submitted that over time there had been a significant change in work value associated with EMR duties which was not reflected in the current amount of the allowance and that a substantial increase should be awarded by the Commission in arbitrating the dispute between the parties.

• [14] The UFU contended that the Commission was authorised by the dispute resolution procedures in the 2020 Agreement to determine the dispute: step 5 of those procedures states that disputes that have not been settled following the procedures to that point may be referred to the Commission for arbitration, and this was the case here. Further, clauses 85.3 of Division A and 92.3 of Division B specifically contemplated disputes about claims for increases to existing allowances being determined by the Commission, and there was no basis for the Commission to adopt the narrow interpretation urged on it by FRV which would preclude these provisions operating alongside clauses 132.6 of Division A and 142.6 of Division B which dealt with changes to the EMR arrangements.

• [15] The UFU advanced four broad contentions of merit in support of its claim for a threefold increase in the allowance. First, it submitted that there had been an increase in the performance of EMR duties, that is, in the incidence and volume of this work. Secondly, it submitted that the types of 'Priority 0' calls that are responded to by FRV employees had expanded beyond those set out in the 2020 Agreement. Thirdly, it submitted that the value of the relevant work was significantly higher than it once was, and that work value principles were an appropriate guide for the assessment of this value. It referred in particular to the decision of the AIRC in the National Wage Case - October 1991 (1991) 39 IR 127 at 141-142, and to ss 157(2A) and 139(g) of the FW Act. Fourthly, it contended that there were now increased psychological and other detriments associated with the EMR work.

• [16] The UFU said that the decision of Bryant DP had identified that in 1994/95, some 246 emergency medical calls had been attended by firefighters. The evidence of Samuel Watterson, FRV's acting commander of emergency medical response, was that as of 17 February 2025, 'Firecom', FRV's central communications system, had recorded 9,731 EMR calls across FRV in the past 12 months. This was the number of times that a FRV crew had been dispatched to an EMR event, but for various reasons, the real incidence of the performance of EMR duties was likely to be higher, as some FRV responses to Priority 0 events are not recorded in Firecom, and EMR duties might be performed at road accidents despite not being coded as EMR calls.

• [17] The UFU submitted that the evidence of its witnesses demonstrated a significant quantitative increase in the EMR work performed by its members. EMR work was no longer occasional but had become core business for FRV (David Blundell); EMR duties had increased and presented a challenging workload (David Black); firefighters attended more EMR calls than structure fires (James Kefalas); EMR work had not replaced other work but was in addition to firefighters' other duties (Mr Kefalas); and EMR calls had increased significantly in the last 4 years in particular (Tim Eccles).

Expansion of the Priority 0 calls responded to by FRV

• [18] The UFU said that on 30 June 2023, there was a change to the Priority 0 calls to which FRV employees were required to respond. The change coincided with Ambulance Victoria (AV) upgrading its software. Some event types were removed from FRV's Priority 0 responses, including various choking, drowning and electrocution events, but other event types were added, including: animal bites and attacks - arrest (i.e. cardiac arrest); drowning / diving - arrest; falls - arrest; falls - arrest (suicide attempt); haemorrhage / lacerations - arrest; stab/gunshot - arrest; traffic / transport incident - arrest; traumatic injuries - arrest. The evidence demonstrated that the new event codes were those most likely to involve an out of hospital cardiac arrest, and that the event codes that were removed were those least likely to involve an out of hospital cardiac arrest.

• [19] The evidence of Andrew Stephenson was that prior to 30 June 2023, FRV and its predecessors did not respond to EMR events involving the matters covered by the new Priority 0 calls, such as animal bites or attacks, falls from height, stabbings, gunshot wounds or other traumatic injuries, but that since 30 June 2023 they have done so. Mr Stephenson said that he had noticed an overall increase in the number of EMR calls attended to, and also an increase in the events that require preventive measures to be taken to protect crew safety. The UFU said that on 30 June 2023, FRV had issued a bulletin to staff on the EMR code changes which had recognised that the new codes involved various risks to FRV crew, and had set out safety measures to mitigate those risks.

• [20] The UFU contended that, having regard to the evidence of the skills and training associated with EMR work, it was evident that there had been a significant increase in the value of this work, and that this warranted a substantial increase in the quantum of the allowance. It said that EMR training now involved a rigorous 3-stage process, including an initial 7-day course component, an on-shift component worked under the supervision of qualified EMR operators, and 4 days of retention training and assessment. Training focused on cardiac arrest and trauma care. Samuel Miletta's evidence was that firefighters utilise a diversity of equipment that FRV has rolled out for EMR firefighters including new first aid, trauma and oxygen resuscitator kits, and that firefighters have been trained on this new equipment.

• [21] The UFU submitted that FRV employees performing EMR duties are now spending more time with patients before the arrival of AV paramedics. The evidence showed that AV call response times for Code 1 events had become slower (an average of 15 minutes and 10 seconds in 2023/24), whereas FRV response times had remained consistent or improved (in 2022/23, 93% of FRV responses were under 9 minutes and 12 seconds). Mr Eccles had explained that firefighters also often remain with patients after AV has arrived to assist with clinical care. Mr Boyd's evidence was that a large part of EMR work now involved dealing with the family and loved ones of patients or deceased, which required the use of 'soft skills' to provide emotional support and to obtain essential information for the treatment of patients.

• [22] The UFU submitted that the evidence showed that the exposure of firefighters to trauma and death, and to grieving relatives, had a cumulative adverse psychological impact, and that research had shown this to increase risks to mental health, including of PTSD, depression and sleep difficulties. On the other hand, the benefits to the community of the EMR work was significant, especially since the expansion of the EMR program after 30 June 2023. The demands of EMR work were now greater and had a bigger personal impact on firefighters. The UFU said that the FRV EMR program played an important part in Victoria having one of the highest survival rates in the world for cardiac arrests that occur outside of hospitals.

• [23] The UFU said that all of the above considerations would persuade the Commission to resolve the dispute by increasing the quantum of the EMR allowance to $7.95 per hour.

• [24] FRV submitted that the application should be dismissed because the Commission is not authorised to determine it. It contended that changes to the EMR arrangements, including in particular the EMR allowance. are dealt with exclusively in clause 132.6 of Division A and clause 142.6 of Division B, which require that there first be a 'review', and that any change be agreed in writing.

• [25] FRV contended that the general provisions regarding changes to existing allowances in clauses 85.3 of Division A and 92.3 of Division B, on which the UFU relied, did not apply to the EMR allowance, because the 2020 Agreement prescribed special arrangements for this type of allowance, and consistent with conventional approaches to interpretation, the general should give way to the specific where they are in conflict, in accordance with the maxim generalia specialibus non derogant. FRV said that this was the proper construction of the 2020 Agreement and that an arbitrated outcome in this case would be contrary to the specific terms relating to the EMR allowance and would therefore exceed the scope of authority vested in the Commission by the 2020 Agreement to resolve disputes. It would also be contrary to the FW Act, which prohibits the Commission from making a decision that is inconsistent with a fair work instrument, such as an enterprise agreement (s 739(5)).

• [26] FRV submitted that alternatively, the Commission should exercise its discretion not to arbitrate the dispute, or not to award an increase at this time, because the UFU and FRV are presently preparing for an IBWD before a Full Bench of the Commission (B2023/771) which could result in changes to the EMR allowance, both in respect of the manner in which the allowance applies and its quantum. It submitted that the IBWD process was already in train before a Full Bench, and that the usual considerations of practical utility would weigh heavily against the Commission arbitrating the allowance claim in the present matter. The EMR allowance was not an agreed term in the IBWD and would be the subject of arbitration by the Commission in that matter, along with other UFU claims for new or increased allowances. FRV said that it should not be required to address the same claim in two arbitrations, and that arbitration of the claim in this proceeding could hamper the fair and efficient determination of the IBWD under s 269. It submitted that any increase to the EMR allowance should be considered holistically by the Full Bench in the IBWD, together with other outcomes and the financial imposts that they might occasion.

• [27] In the further alternative, FRV submitted that, should the Commission proceed to arbitrate the UFU's claim in this matter, it should determine not to make the order sought, for reasons of merit. It contended that the evidence put before the Commission did not justify a threefold increase to the EMR allowance. There had been only gradual work changes over time that did not warrant an increase of this magnitude. The introduction of new codes in 2023 had not materially altered EMR duties. Clauses 132.4 of Division A and 142.4 of Division B both define Priority 0 cases as those events which entail the highest probability of cardiopulmonary arrest. Each division sets out subsets of Priority 0 cases. When an EMR event occurs, FRV firefighters are dispatched at the same time as AV paramedics, using a medical dispatch system. Luisa Interligi had explained in her evidence that from 2018 and 2023, the dispatch software was upgraded, which involved an increase in event classifications from 1200 to 1700, and a revised dispatch grid created by AV, which had required adjustments to the EMR codes. On 30 June 2023, FRV published an advisory bulletin that explained the dispatch software upgrade and the changes that FRV had implemented in accordance with AV's revised dispatch grid. Nine EMR event codes had remained unchanged, 24 were added, and 19 were removed. The changes followed an analysis by AV of the rates of out of hospital cardiac arrest to determine the event types that carried the most acute risk of arrest. FRV said that this aligned with the main purpose of EMR, which was to provide a first response for acute medical conditions. FRV submitted that most of the new EMR codes did not correspond to substantively new Priority 0 events but were a re-characterisation of existing events to align them with the revised event classifications in the upgraded dispatch software.

• [28] FRV further submitted that the changes to the EMR codes had not caused significant practical changes to FRV's response to EMR events. As Ms Interligi explained, data showed that the number of FRV appliances attending EMR events had in fact decreased in the last financial year, from 7,543 to 6,702. Further, in the last financial year, only 479 events had related to the new EMR codes introduced in 2023. For each station, the average number of responses to new EMR codes was only 5. FRV contended that the union was wrong to say, based on anecdotal evidence, that EMR had produced a growing and challenging workload.

• [29] FRV submitted that the UFU had failed to explain its assertion that EMR duties entail new work undertaken in addition to other duties, as firefighters do not now work any more hours on shift than previously. The UFU's case appeared to suggest that firefighters now spend more time performing EMR duties than firefighting, or that EMR duties are more complex and challenging than operational firefighting work, but there was no evidence to support this.

• [30] FRV further contended that although there had been continual improvements to EMR training and equipment since 1998, the focus of EMR work remained on providing emergency first response for acute medical conditions. It said that the UFU's evidence had not shown that the changes entailed increased complexity, and the 'soft skills' referred to by the UFU were already part of employees' skillset for regular firefighting duties, which, like EMR work, involve exposure to trauma and death.

• [31] Finally, FRV submitted that there was limited financial capacity for an increase in the EMR allowance. The majority of FRV's funding is sourced through statutory contributions, which it receives through the Department of Justice and Community Safety on a quarterly basis. The evidence of Chris Moon, the director of corporate services, was that a threefold increase to the EMR allowance would lead to an increased annual cost to FRV of $55,300,528, which had not been included in FRV's forecasting or budget. FRV said that its challenging financial position underscored the need for any increase in the allowance to be considered holistically with other matters at issue in the IBWD before the Full Bench.

• [32] The UFU contended that FRV was wrong to say that the Commission had no power to determine the dispute and said that this reflected a mistaken interpretation of the 2020 Agreement. Clauses 132.6 of Division A and 142.6 of Division B did not impose limitations on the Commission's ability to determine claims for increased allowances. A proper construction of these provisions required consideration of the context of the 2020 Agreement as a whole, and in particular clauses 135.13 of Division A and 146.12 of Division B, which FRV's interpretation had overlooked. These clauses are headed 'EMR First Responder' and stipulate that they are to be read in conjunction with clauses 132 of Division A and 142 of Division B. Clause 135.13.1 of Division A and clause 146.12.1 of Division B state that employees 'who both elect to make themselves available to undertake First Responder - EMS Training and also to perform First Responder - EMS duties (on completion of such training) whenever required, will be paid an allowance in accordance with SCHEDULE 4 - Allowances for each and all hours worked'. Schedule 4 in each division contains a table listing all allowances, including the EMR allowance. The UFU submitted that throughout clauses 135.13 and 146.12, EMS and EMR were referred to interchangeably. It said that the 'First Responder' provisions in clauses 135.13 of Division A and 146.12 of Division B should be construed together and harmoniously with the 'EMR' provisions in clauses 132 of Division A and 142 of Division B, such that the EMR provisions outline the nature and scope of the operation of the EMR function at FRV, and the First Responder provisions make provision for payment of the allowance in accordance with Schedule 4. The UFU said that by locating the EMR allowance in Schedule 4, clauses 135.13 and 146.12 put the allowance squarely within the field of operation of clauses 85 and 92. As to clauses 132.6 and 142.6 of Divisions A and B, these provide for a review and variation to the EMR clauses in limited circumstances, but do not otherwise deal with changes to the EMR allowance. They did not need to deal with that topic because it is dealt with in clauses 85 and 92. The EMR and First Responder clauses were therefore not in conflict, and there was no proper basis to apply the maxim generalia specialibus non derogant. The UFU further contended that FRV's construction would deprive the First Responder provisions in clauses 135.13 of Division A and 146.12 of Division B of any meaningful work to do.

• [33] The UFU said that its submissions concerning the increase in call numbers were merit contentions, not ones going to the 'preconditions' in clauses 132 and 142 of Divisions A and B. The merit consideration lay in the increase in volume, and also the fact that the UFU had endeavoured to engage with FRV on this matter but had been rebuffed. The UFU also noted that a consequence of there not having been any agreement in writing in respect of the new Priority 0 event codes was that these codes had been introduced otherwise than in compliance with the EMR clauses, and that employees therefore did not have to respond to them. That they nevertheless did so was a positive merit consideration supporting an increase to the EMR allowance, just as FRV's failure to comply with the EMR provisions by obtaining agreement in writing was a negative one. Further, it was evident that employees were currently performing work not contemplated by the 2020 Agreement for which they were not being paid. The UFU said that these matters were further reasons supporting its claim for an increase to the EMR allowance.

• [34] The UFU submitted that for the Commission to accept FRV's invitation not to arbitrate the dispute because of the impending IBWD would be inconsistent with the dispute resolution procedures in the 2020 Agreement, which require the Commission 'to settle the dispute'. The UFU referred in this regard to the decision of the Full Bench in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board; Country Fire Authority [2019] FWCFB 184 (UFU v MFB and CFA), which concluded that it would not be open to the Commission to refuse to arbitrate a dispute that had been referred to it under the 2020 Agreement (at [59]). Further, the IBWD was at a very early stage, the timing of the determination was most uncertain, and it would be unfair to employees for the Commission to delay the determination of their claim to be paid for work of enhanced value that they were performing now.

• [35] As to the merits, the UFU said that FRV's own evidence showed that the EMR codes that were removed in 2023 had an average rate of out of hospital cardiac arrest of less than 6%, and that the average rate for the new codes was 36%. Therefore it was clear that EMR duties now more frequently involved the need to perform CPR. It was also clear that the new codes involving gunshot wounds and stabbings would place greater stress on employees. Although the total hours worked by employees had not changed, the EMR duties had resulted in an intensification of work, which reflected an increase in work value (see Application to vary the Social, Community, Home Care and Disability Services Award 2010 [2020] FWCFB 4961 at [84], and Aged Care Work Value Decision [2022] FWCFB 200 at [220]). The UFU further contended that the financial limitations raised by FRV were an artificial construct in circumstances where FRV is a public sector entity which is funded by the State Government.

• [36] In my opinion, the Commission is not authorised to determine this dispute. I do not consider that clauses 85.3 of Division A and 92.3 of Division B are available to arbitrate the claim in this particular matter. These are general provisions relating to claims for new or increased allowances. But clause 132.6 of Division A and clause 142.6 of Division B deal specifically with variations to the EMR clauses in particular situations. They state that if the EMR duties expand beyond 6000 calls annually, or if they expand beyond Priority 0 calls as defined, then 'the provisions relating to EMR' will be reviewed by the parties and 'the operation of this clause can only be varied by agreement of the parties in writing'. It is clear that this contemplates variation to any of the elements of the EMR clauses, including the quantum of the allowance in clauses 132.3 of Division A and 142.3 of Division B. When these specific provisions apply, variations to the EMR provisions can occur only by agreement, as those clauses stipulate. The general provisions in clauses 85 and 92 of Divisions A and B, which allow for arbitration of claims for increased allowances, do not apply, because they are directly inconsistent with the specific provisions.

• [37] In my view, FRV is correct to say that the maxim 'generalia specialibus non derogant' is applicable in this case. The general yields to the specific where the two conflict. Such maxims are logical propositions that assist in resolving apparent conflicts in the language of a text. Ordinarily, a specific term dealing directly with a particular subject matter will be understood to prevail over a general one that covers the same territory and with which it is inconsistent. This allows both terms to be given a sensible and harmonious meaning. The general provision applies generally, but not to subvert the meaning of the specific provision. In the present case, the specific provisions are particular both in their application and their effects, one of which is that variations to EMR provisions must occur by written agreement, and therefore not by arbitration. The general provisions are of broad application and confer a general power on the Commission to determine disputed claims for allowances by arbitration. But the power cannot be used to defeat the conditions that apply when the specific provisions are engaged.

• [38] This reasoning is consistent with the principle of interpretation that emerged from the decision of the High Court in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1. Section 40 of the Conciliation and Arbitration Act 1904 allowed the Commonwealth Court of Conciliation and Arbitration (CCCA) to make an award or order requiring preference in employment to be given to union members, 'other things being equal'. The CCCA had made an award requiring employers to give preference to unionists in employing female operatives, but the award's direction to give preference was not made subject to the proviso of 'other things being equal'. The award had been made not under s 40, but pursuant to the CCCA's general powers to determine industrial disputes. A majority of the High Court held that the award was invalid, and concluded that, although the general powers conferred on the CCCA were extensive and unfettered, 'when sec. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing' (at [7], per Gavan Duffy CJ and Dixon J, McTiernan J concurring). The power granted in s 40 was found to extend to every case in which preference in employment was sought for union members over non-members. The affirmative grant of such a power with conditions necessarily implied a negative, namely the 'denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision' (at [8]). In my opinion, this reasoning applies to the construction of the special and general provisions of the 2020 Agreement that are at issue in the present case. The specific provisions, when engaged, require variations to the EMR clauses to be by written agreement, not arbitration. The general provisions cannot be used to do the very thing that the specific provisions effectively prohibit.

• [39] The UFU sought to argue that there was no conflict between the EMR provisions and the general allowances provisions because the EMR provisions do not in fact prescribe the EMR allowance. It said that the first five sub-provisions of clause 132 of Division A and clause 142 of Division B frame the operational parameters of the entire EMR scheme, and that the sixth sub-provisions provided for a review and variation of this scheme in certain circumstances; and although the third sub-provision made reference to the amount of the EMR allowance, it was actually clauses 135.13 of Division A and 146.12 of Division B, referring 'interchangeably to 'EMR and 'EMS'', that made provision for the payment of the EMR allowance, the quantum of which was prescribed in Schedule 4, and therefore located in that schedule outside the EMR clauses. The EMR allowance was therefore not subject to the limitation in clauses 132.6 and 142.6 of Divisions A and B that variations to the EMR clauses occur by agreement. It was only variations to the EMR scheme, not the amount of the EMR allowance, that required the written agreement of the parties, and accordingly the EMR allowance remained subject to clauses 85 and 92 of Divisions A and B, and could be varied by arbitration.

• [40] Simply to state this construction is to reveal its complexity and its improbability. I reject it. The chain of reasoning does not withstand scrutiny.

• [41] First, it is not correct to say that the EMR provisions do not deal with the EMR allowance. Clauses 132.3 and 142.3 of Divisions A and B both explicitly state that employees 'will be paid an amount of $2.30 per hour worked when available to be rostered for EMR duties'. Secondly, it is not correct to say that the EMR provisions do not deal with variations to the allowance. As noted above, the variations contemplated by clauses 132.3 and 142.3 of Divisions A and B extend to any variation of any of the elements of the EMR provisions, including the allowance. Thirdly, it is clear that clause 135.13 of Division A and clause 146.12 of Division B do not make provision for the EMR allowance, nor do they refer interchangeably to EMR and EMS. Instead, they establish other allowances, which are payable to employees who complete 'First Responder - EMS training' and who are subsequently required to participate in a trial of EMS First Responder arrangements. These 'EMS' allowances appear in Schedule 4, which lists a range of different allowances and separately identify an 'EMR allowance' ($2.30/hour), 'EMS First Responder Training Allowance' ($1.61/hour) and 'EMS First Responder Allowance' ($0.79/hour). Fourthly, while Schedule 4 might establish the quantum of the two 'EMS' allowances, it does not establish the quantum of the EMR allowance, because this is already prescribed in the EMR clauses themselves, as noted above. Schedule 4 merely repeats what has already been determined in the body of the EMR provisions. Why then does the table refer to the EMR allowance? For convenience.

• [42] The UFU is correct to say that clauses 132.6 of Division A and 142.6 of Division B are not a code in respect of when the EMR allowance can be varied. Rather, they set out what will occur if calls increase beyond 6000 or the Priority 0 calls extend beyond those listed. The clauses establish a specific and comprehensive scheme that applies in these particular circumstances, including in relation to how any of the sub-provisions of the EMR clauses, including the allowances set by clauses 132.3 and 142.3 of Divisions A and B, may be varied.

• [43] The UFU contended that clauses 85.1 and 92.1 of Divisions A and B were available to have the Commission arbitrate claims for increased allowances not involving excess calls or new Priority 0 calls. I agree. But this does not assist the UFU, because in the present matter, the Priority 0 codes have extended beyond those listed. The scheme established by clauses 132.6 and 142.6 of Divisions A and B is engaged. The fact that the UFU relies on contentions of work value, disability and other considerations of merit does not alter this. These matters cannot sensibly be separated from the changes to the Priority 0 codes. The UFU's merits claim in this matter is expressly and inextricably linked to the changes in the Priority 0 codes. The consequence of the engagement of clauses 132.6 and 142.6 of Divisions A and B is that the provisions related to EMR, including the EMR allowance, can only be varied by written agreement of the parties.

• [44] The UFU submitted that the EMR allowance had previously been varied pursuant to clauses 85 and 92 of Divisions A and B and pointed to the decision of Commissioner Wilson on 15 August 2023, pursuant to which the amount of the EMR allowance was increased to $2.65 per hour, evidently under the general provisions, which were referred to at [13] of the decision. The UFU said that this was evidence of a common intention of the parties that the EMR allowance is amendable to arbitrated increases pursuant to the general provisions. I do not agree that the fact of past practice in respect of an enterprise agreement must be taken to be evidence of a common intention of the parties that the agreement has a meaning that accords with the practice. However, I agree with the UFU that the general allowance arbitration provisions are capable of applying to the EMR allowance, and that they did so in the matter before Commissioner Wilson. But in that matter, the specific provisions in clauses 132.6 of Division A and 142.6 of Division B were not engaged. The UFU had brought a claim for the indexation, or general increase, of all agreement allowances. The claim was not related to an increase in call numbers or changes to the Priority 0 calls. Neither of those things was said to have occurred. Clauses 132.6 and 142.6 of Divisions A and B were simply not relevant and therefore they presented no impediment to the arbitration of the claims under the general provisions.

• [45] The UFU submitted that no written agreement was made in respect of the changes that FRV made to the Priority 0 codes, and that this called into question whether firefighters can be required to respond to these codes. That may be, but it is not relevant to the constructional question of whether clauses 85 and 92 of Divisions A and B are available to the Commission to arbitrate the UFU's claim in this case.

• [46] I conclude that the Commission is not authorised by the terms of the 2020 Agreement to determine this dispute because the orders sought by the UFU would be inconsistent with clauses 132.6 and 142.6 of Divisions A and B. The orders would therefore be contrary to s 739(5) of the Act, and exceed the Commission's jurisdiction. The application must be therefore be dismissed.

• [47] In any event, had I concluded that the Commission was authorised to decide the dispute, I would have determined that it is not appropriate to do so at this time because it is more appropriate that the UFU's claim be decided by the Full Bench in the IBWD proceedings. The EMR allowance is just one of various conditions of employment that are the subject of a broader dispute in that matter. It is preferable for the question of whether to award an increase to the EMR allowance, and if so by how much, to be determined in the context of the other claims that are at issue between the parties in the IBWD proceedings. There is merit in FRV's submission that these claims should be considered and determined holistically. Matters that are relevant to the consideration of the appropriate level of the EMR allowance may also be relevant to the consideration of other conditions of employment that are at issue in the IBWD, and vice versa. The role of firefighters in undertaking EMR duties would appear to be relevant to the assessment of their work as a whole and how this work should appropriately be remunerated in wages. It may be relevant to consider arguments about the intensification of EMR work in the context of employees' overall duties, including the incidence and intensity of the other components of their job. In my assessment it is appropriate that the UFU's claim for an increase to the EMR allowance be considered and determined by the Full Bench together with the other conditions of employment that are at issue in that matter.

• [48] The UFU said that the Full Bench would be able to take into account any decision that was made in the present matter. That is true. But that could result in the Full Bench having additional work to do, rather than saving time for the Bench. One or both of the parties, if dissatisfied with the outcome, could seek to persuade the Full Bench to reach a different conclusion. It is better that the Full Bench makes its own decision on the EMR allowance with a clean slate, and with the broader perspective that I have referred to above.

• [49] The UFU contended that it would be unfair to employees not to award them an increase in the EMR allowance because the rate had remained set at a low level for many years and that it was unjust that FRV should continue to receive the benefit of employees' higher value work without paying for this. The union also said that it would be unfair to allow FRV to continue to benefit from a 'windfall gain', and from its failure to comply with its obligations under clauses 132.6 and 142.6 of Divisions A and B to conduct a 'review' and to reach an agreement in writing with the union on the new Priority 0 calls. But if the Full Bench perceives any unfairness to employees associated with the timing of any increase to the EMR allowance, it will be open to it to address this in its determination, including when setting the amount of any increase. I also note that firefighters are not low paid workers and I do not consider that there is any basis to conclude that employees will suffer hardship as a result of a deferral of the determination of any increase to the EMR allowance.

• [50] In my view, another advantage of not determining the application at this time is the fact that there is controversy between the parties about the authority of the Commission to arbitrate the dispute, whereas there is no doubt about the jurisdiction of the Full Bench to determine the claim for an increase in the EMR allowance as part of the IBWD.

• [51] The UFU submitted that the IBWD was at a very early stage of development. I do not agree. Directions were issued on 22 April 2025 which laid down a timetable and listed the IBWD for hearing commencing on 22 September 2025. But even if there remains a long road to the conclusion of that matter, this does not outweigh the considerations that I have identified above that would tell in favour of not determining the present application at this time.

• [52] Accordingly, had I concluded that the Commission was authorised to determine the dispute, I would have decided not to determine the application at this time. My expectation would have been that the Full Bench would determine the amount of any increase to the EMR allowance as part of the IBWD, and that following the decision of the Full Bench, the present application would have been discontinued by the UFU, or have been dismissed by me on the basis that the dispute had been settled by the determination of the Full Bench. If some unforeseen course of events led to the dispute remaining extant, I would then have determined it. This would have been the appropriate course, even though it would have necessitated leaving the file open sine die, which runs contrary to my preferred approach to case file management. Consistent with the observations of the Full Bench in UFU v MFB and CFA, this approach would not have amounted to a refusal to arbitrate the dispute, but would instead have been a discretionary deferral of the arbitration for good reason. My preferred approach would also have accorded with the Full Federal Court's recent analysis of the Commission's jurisdiction in cases where it is considering whether to defer the exercise of its arbitral authority (see United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84 at [75] and [79]).

• [53] In the result, I have determined that the Commission has no authority to arbitrate the matter because to do so would be contrary to the terms of the 2020 Agreement and to s 739(5) of the Act. Even if there had been such authority, I would have decided that it is not appropriate to determine the application at this time because it is preferrable for the Full Bench to determine the question of whether to increase the EMR allowance together with the other claims at issue in the IBWD. The work that the parties have done on the merits in this matter will not go to waste. It will go to the Full Bench.

H. Borenstein K.C. and J. McKenna of counsel for the UFU

A. Pollock and A. Thomas of counsel for Fire Rescue Victoria

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