Note: An appeal pursuant to s.604 (C2013/3173) was lodged against this decision.

[2013] FWC 354

Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute concerning instructor streaming pursuant to Clause 72 of Metropolitan Fire and Emergency Services Board, United Firefighters' Union of Australia Operational Staff Agreement 2010 (the Agreement). Clause 19 Dispute Resolution of the Agreement.

[1] On 13 July and 5 December 2012 I handed down decisions in respect to instructor progression ([2012] FWA 5408 and [2012] FWA 9352). The final paragraph of the second mentioned decision established a process for the finalisation of Orders to give effect to the decisions. The parties were unable to meet the timetable for the finalisation of the Orders I set out. The draft Orders were provided by the parties by 15 January 2013. A hearing was held on 16 January 2013 to resolve issues of contention in the drafting. I determined those matters in transcript after hearing from the parties. There was one matter which required further consideration.

[2] In the decision of 5 December 2012 I reached the following conclusions:

"[43] My assessment of the requirements of a Registered Training Organisation when read in conjunction with the requirements of the Training Package and the Agreement at Schedule 3 together with an assessment of the evidence of the witnesses is that the skills and qualifications obtained through the achievement of the rank of leading firefighter should be the minimum vocational qualification required for appointment to a position in the instructor stream. It is clear that higher vocational competency will be required for the delivery of competencies in particular courses, for example in promotional courses. However, in my view the appropriate way to express the vocational competency requirement is to require leading firefighter as an entry qualification requirement and to require the appropriate vocational competence. The appropriate vocational competence is defined as broad industry knowledge and experience usually combined with the relevant industry qualification. The appropriate vocational competence relates to the particular skills being delivered or assessed.

[44] The delivery and assessment of training must be consistent with the requirements of the Training Package and the MFB Emergency Response Training Framework at Schedule 3 of the Agreement. However, I do not accept that this means that approving recruit competency against the Public Safety Training Package requirements for a recruit firefighter is a skill which demands the perspective and experience of a Station Officer in every case. The evidence of the UFU suggests that where the instructor has the relevant specialist knowledge this is not a problem. The UFU accepts that in such cases an instructor may deliver training to a higher rank. In my view it is inappropriate to specify the relevant work organisation in the training department. It is only necessary to specify what is the minimum vocational qualification, in this case that which is associated with obtaining the rank of leading firefighter, and to require the appropriate vocational competence relevant to the particular competency being delivered and or assessed.

[45] It is not necessary or appropriate to impose any other particular requirement such as a requirement that leading firefighters cannot deliver and assess in the recruit training course unsupervised.

[1] The MFB seek the inclusion in the Order of the provision that:

"Leading Firefighters who hold the minimum qualifications for the Instructor role and who are paid at the equivalent operational rank of Station Officer and perform the role of Instructor will not be required to undertake instruction and assessment under direct supervision."

[2] The UFU seek the inclusion in the Order of the provision that:

"Nothing in this Order is intended to interfere with the work organisation, management and organisational structure of the MFESB training department, whether the Training Department at Burnley or elsewhere."

[3] These proposals would supplement and or clarify an agreed provision in the Order that:

"It will not be necessary for an employee to hold all the vocational competencies for the equivalent rank to which the employee is being paid, save that:

(a) a lower ranked employee who is appointed to any streamed position can provide specialist training or training not specific to an operational rank to a higher ranked employee; and

(b) the lower ranked employee will not undertake training and/or assessment in vocational competencies not held by the lower ranked employee.

For the avoidance of doubt, and subject to (the above point) an employee will be required to have the appropriate vocational competence relevant to the particular competency being delivered and or assessed.

Vocational competencies for the purpose of this Order include those specified in the Public Safety Training Package and MFB Emergency Response Training Framework together with broad industry knowledge."

[4] As I understand it the MFB are concerned that if the UFU proposal is included and the MFB proposal is excluded, the UFU may take the view that the effect of the Order would be to require the maintenance of the current work organisation at the Training College and in particular that leading fire fighters who are working as instructors do not undertake training of recruits unsupervised. The MFB apprehend that paragraph 45 of my decision should mean that the change they propose should be able to occur without hindrance. That is leading fire fighters who are appointed to the stream as instructors should be able to train recruits without direct supervision. The MFB also submitted during proceedings that if leading firefighters were to be recognised through streaming and paid as Station Officers when working as instructors they should be able to carry out the duties of an instructor without limitation. As I understand it the UFU are concerned that it would be inconsistent with the decision at paragraph 45 to specify the relevant work organisation in the training department by specifying the duties to be performed by leading fire fighters who are instructors in the stream.

[5] I consider that my decision made it clear what it is that instructors in the stream are able to do. The only requirements in respect to vocational competency are those I specified in that decision. My decision was that an employee will be required to have the appropriate vocational competence relevant to the particular competency being delivered and or assessed and a minimum operational rank and qualification of Leading Firefighter. Nothing in my decision provides that an employee in the stream is otherwise restricted in the competencies for which they are responsible for teaching and assessment. I rejected the arguments for the inclusion of further restriction. I decided that the imposition of such restriction was neither necessary nor appropriate.

[6] However, I rejected submissions that I should specify the particular work organisation in the training department. I decided that it is a matter for the MFB to determine how they wish to organise the work of the training department subject to any other relevant provisions of the Agreement.

[7] For these reasons and to be consistent with the findings in my earlier decision quoted above I consider that neither the UFU proposal nor the MFB proposal should be included in the Order. Neither of these points is included in my conclusions at paragraph 74 of my earlier decision.

[8] In this context I consider it appropriate to make small amendments, as underlined below, to the provision concerning vocational competencies in the proposed Order, noting that this provision appears twice in the proposed Order.

"It will not be necessary for an employee to hold all the vocational competencies for the equivalent rank to which the employee is being paid, save that:

(a) a lower ranked employee who is appointed to any streamed position can be responsible for and provide specialist training or training not specific to an operational rank to a higher ranked employee; and

(b) the lower ranked employee will not undertake training and/or assessment in vocational competencies not held by the lower ranked employee.

For the avoidance of doubt, and subject to (the above point) an employee will be required to have the appropriate vocational competence relevant to the particular competency where they are responsible for the delivery and or assessment of that competency.

Vocational competencies for the purpose of this Order include those specified in the Public Safety Training Package and MFB Emergency Response Training Framework together with broad industry knowledge."

Ms A Forsyth for the United Firefighters' Union of Australia.

Mr J Tuck and Ms S Killackey for the Metropolitan Fire and Emergency Services Board.

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