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Creating Our Future Together - Fair Work Commission Decision

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  10.00 AM 18 September, 2013

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Following from CEO Mick Bourke's blog on 6 September, CFA and UFU have been in dispute regarding consultation about CFA's proposed model - among other matters.

Commissioner Wilson from the Fair Work Commission handed down his decision on Monday and, as a result of the dispute resolution procedure not being followed, concluded that the Fair Work Commission did not have jurisdiction to deal with the UFU application and dismissed their dispute.

To give some background to the dispute - UFU was alleging CFA had already made decisions on the service delivery and support model without genuinely consulting in accordance with the Operational Staff Enterprise Agreement 2010.

CFA was also in dispute with UFU regarding their use of the dispute resolution (grievance) procedure, alleging that the UFU had not properly explained the basis for their position and were making it impossible for CFA to respond.

UFU first lodged a grievance in April 2013 and in June they made an application to the Fair Work Commission to deal with the dispute. CFA also made its application to the Commission in July 2013.

The Fair Work Commission was asked to determine the following matters:

  • Whether or not CFA had made decisions to implement changes without consultation under the Operational Staff Agreement 2010 (UFU Application).

    The changes which UFU alleged had not been subject to consultation related to:
    • reporting lines of Brigade Administration Support Coordinators in a region
    • issues relating to certain instructor appointments and workloads
    • proposals for change, as discussed in the CEO blog on 11 July 2013, including the reduction in the number of regions.
  • Whether the grievances lodged by UFU met the requirements of Clause 15.2.1 of the Operational Staff Agreement 2010 (CFA Application) and whether they had been properly progressed by UFU through the dispute procedure in the agreement.

  • Whether in all the circumstances the submission of the notified grievances was an improper use of the dispute resolution process (CFA Application).

  • CFA had previously submitted that Clause 13.3.5 of the agreement only required CFA to refer proposals for change to the Enterprise Bargaining Implementation Committee (EBIC) where consultation was to take place, and that proposals for change were not required to be agreed.

In an earlier interim decision in the matter, Commissioner Wilson said that "The CFA made the entirely valid point in respect to this clause that it only requires "referral" of proposals for change to the Enterprise Bargaining Implementation Committee (EBIC) before implementation. The clause does not require proposals to change to be agreed before implementation...."

In his final decision yesterday, the Commissioner made the following key points:

  • He rejected UFU's submission that the dispute it had raised in April 2013, and which had been the subject of its application in June, extended to the restructure proposals discussed in CEO Mick Bourke's blog on 11 July 2013. 

  • He found "...the absence of any further and better particulars from the UFU at any time prior to 11 July 2013... leads to the view there is not a connection and that the dispute has not expanded. The UFU had at least four occasions in which to provide further particulars to the CFA and chose not to". 

  • On the evidence he specifically found that "...no firm decision had been made about what proposals for change the CFA would support, or how it intended to implement them until 11 July 2013, or shortly before." CFA had not made decisions to implement change or decisions about the restructure proposals prior to 11 July 2013 and therefore the UFU complaint about a lack of consultation on those proposals before then did not have substance.
     
  • The disputes brought by UFU had not been properly progressed through the mandated steps one to four of the dispute resolution procedure. As a result, he found that there had not been the full, meaningful and frank discussion of any issues and consideration of each party's views at any of the steps before the UFU's application was made to the Commission. That this meant the Fair Work Commission did not have jurisdiction to deal with the disputes. 

  • UFU failed to "...particularise the words when requested, or to give life to the issues actually disputed, means the dispute resolution process was not being followed..."

As a result of the dispute resolution procedure not being followed, Commissioner Wilson concluded that the Fair Work Commission did not have jurisdiction to deal with the UFU application, and Commissioner Wilson dismissed the dispute.

Given Commissioner Wilson's finding on UFU's application he considered it unnecessary to determine CFA's application. In light of the decision CFA is now reviewing the Management Guideline for Dispute Resolution to incorporate the impacts of this decision.

A copy of the decision can be found here (Brigades Online > About CFA > Creating Our Future Together - Next Steps).

We will keep you informed about the next steps for Creating Our Future Together.

Last Updated: 10 December 2015