I have hesitated getting involved in this debate for a number of reasons.
- Accessing the relevant documents has been difficult but the CFA did put them up on their website last week.
- The proposed Country Fire Authority / United Firefighters Union Of Australia Operational Staff Enterprise Agreement 2016 runs for 229 clauses, 27 Schedules and 406 pages.
- On many issues that are discussed on this blog I am the only commentator. There has been much commentary on this issue including from Rush QC, former counsel assisting the 2009 Victorian Bushfires Royal Commission (‘CFA dispute deal risks our volunteers’ future: Jack Rush QC’ (22 June 2016)), and legal opinions from the Victorian Equal Opportunity and Human Rights Commission and the Government’s Senior Crown Counsel.
Even so, I do want to enter into the debate in a limited way and consistent with what is, I’m told, my philosophical position as a ‘legal positivist’ (the law is what it is – it’s for others to say whether it’s good or bad law). Consistent with my approach since starting this blog in 2009, it’s my job to ‘call it as I see it’ even if that is entering a political controversy and even though, whatever conclusion I come to, it will be unpopular with either Volunteer Fire Brigades Victoria or the United Fire Fighters Union and both those organisations represent ‘my’ audience.
Introduction and the Country Fire Authority Act 1958 (Vic).
I do have concerns with the proposed Enterprise Agreement and with provisions that are unique to the Country Fire Authority Act 1958 (Vic). They are sections 6F-6I:
6F. Recognition of Authority as a volunteer-based organisation
6G. Recognition of the Volunteer Charter
6H. Authority to have regard to Volunteer Charter
6I. Authority’s responsibility to encourage, maintain and strengthen capacity of volunteers
Section 6F says (emphasis added) that the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’. According to s 6I ‘The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services.’ Pursuant to the volunteer charter, the CFA is to ‘Recognise and acknowledge that a primary responsibility of CFA and people employed by CFA is to nurture and encourage Volunteers and to facilitate and develop their skill and competencies’.
Clause 83.5
It does appear that the current proposed Staff Agreement would not give effect to those provisions. To take just two examples, the proposed cl 83.5 says:
Consistent with the increases in staffing provided in this Agreement, the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations. This requirement applies to integrated stations in Districts 2, 7, 8, 13, 14, 15 and 27. Consistent with the increases in staffing provided for in this Agreement, CFA will also ensure that there is a minimum of seven professional firefighters to fireground incidents that professional firefighters are dispatched to before commencement of safe firefighting operations for the following integrated stations being Shepparton and Mildura professional firefighters by no later than 1 January 2017 and Warrnambool professional firefighters by no later than 1 January 2018.
An integrated station ‘is a fire station which includes professional firefighters appointed to the station’ [11.24].
Victoria has not adopted the model Work Health and Safety Act 2011. If it had the Act would impose the same duty to ensure work health and safety regardless of whether or not the worker is a volunteer or paid staff member (see Work Health and Safety Act 2011 (Cth) s 7 ‘Meaning of worker’). Certainly if that Act applied, and if it was necessary to send seven professional firefighters to ensue firefighter safety, it would be equally necessary to send seven volunteers. Under the Occupational Health and Safety Act 2004 (Vic) s 21, the primary duty is owed by an employer to an employee and a volunteer is not an employee. Even so an ‘employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23). The CFA does have a duty to ensure for the safety of its volunteers.
The effect of clause 83.5 is that if the CFA sends one paid firefighter, they have to send 7. They can’t send 4 paid firefighters and 3 volunteers or any other combination. It has to be seven paid firefighters.
To ‘integrate’ means (according to Oxford Dictionaries online):
1 Combine (one thing) with another to form a whole:
1.1 Combine (two things) so that they form a whole:
1.2 (Of a thing) combine with another to form a whole:
2 Bring (people or groups with particular characteristics or needs) into equal participation in or membership of a social group or institution:
2.1 Come into equal participation in or membership of a social group or institution
A fire station is not ‘integrated’ if the volunteers and paid firefighters are not combined into a whole but are treated differently because of their employment status. Clause 83.5 would not create an ‘integrated station’ but would, instead, create a situation akin to the situation in NSW where NSW Fire and Rescue has ‘permanent’ and ‘volunteer’ brigades (Fire Brigades Act 1989 (NSW) ss 8 and 9). Even if they work out of the same station they are different brigades rather than an ‘integrated’ brigade or station (see Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013) and the comments attached to that post).
It is not clear why, if what is intended is an integrated station and if the CFA ‘is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ that the safety concerns wouldn’t be met by ensuring seven firefighters, regardless of their employment status. That is cl cl 83.5 could say:
… the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.
Clause 83.5 as currently drafted does appear to be inconsistent with s 6F of the CFA Act.
Clause 36.4
Clause 36.4 says:
All employees covered by this agreement shall only report to operational employees under this agreement or at the rank of DCO or CO when responding to fire alarms or incidents under this agreement except in the case where the incident is a level 3 multiagency incident or to a CFA/MFB incident controller at an incident.
The UFU is quoted as saying ‘volunteers acting as incident controllers would still have the capacity to give orders’ (‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 Jun 2016). That is quite correct, but it does mean that a volunteer can’t act as crew leader, sector commander or some other position other than IC and exercise command responsibility over a paid firefighter, regardless of their relative experience and training. Again this appears to be inconsistent with s 6F and the concept of an integrated service.
This position would also be contrary to the reasoning behind a recommendation of the 2009 Victorian Bushfires Royal Commission. The Royal Commission recommended (Recommendation 18) that:
The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire.
Disputes over land tenure was not to influence who acted as IC. Clause 36.4 still allows a volunteer member of the CFA to act as IC but as noted, not at lower levels of control. It can be foreseen that an issue will arise at the next Royal Commission where ‘a suitably experienced, qualified and competent’ volunteer was unable to exercise fire ground decisions because he or she could not require less experienced but paid firefighters to report to him or her.
Clause 90.4
There are other clauses with respect to the implementation of decisions and the development of policy that are problematic. For example, cl 90.4 says:
90.4. The parties acknowledge that the occupation of firefighting is an extremely hazardous and dangerous occupation where firefighters can be deployed into known and unknown hazardous situations to perform the rescue of life and protection of property.
In this context, the parties have prioritised the health and safety of the employee covered by this Agreement by agreeing on the following clause.
The CFA and UFU must agree on all aspects of the:
90.4.1. articles of clothing;
90.4.2. equipment, including personal protective equipment;
90.4.3. technology;
90.4.4. station wear; and
90.4.5. appliances;
to be used or worn by employees. ‘All aspects’ includes, without limitation, design and specifications. This applies to new and replacement items. ‘Appliances’ is defined as including any vehicle used by employees (including vessels and aerial vehicles) and any vehicle attachment such as a POD or trailer.
That clause is problematic for two reasons. First the section requires that the CFA and the UFU ‘must agree’ on the issues listed. The CFA, as an employer, has the primary duty to ensure the health and safety of its employed firefighters (Occupational Health and Safety Act 2004 (Vic) s 21). The Occupational Health and Safety Act sets out detailed procedures to ensure that obligation is met and to provide for consultation between employees and employers (ss 35 and 36; see also s 43-94 on representation of employees and rights of relevant employee organisations). Consult does not necessarily require ‘agreement’ (see Firefighters and the need to consult with landowners in WA (September 1, 2015); The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016); and A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)). I don’t know what the terms of the current Enterprise Agreement say, or whether such clauses exist in other agreements, but a clause that requires employer and employee agreement is a much tougher test than a duty to consult but with final responsibility for any decision resting with the employer.
This clause might also complicate any OHS enforcement. Under the OHS Act it is the duty of the employer to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (s 21). If, after consultation, the employer implements a policy or introduces technology that does not ensure safety then the employer can be compelled to rectify the work arrangements and may ultimately be prosecuted. The final say, and final responsibility, lies with the employer.
What is ‘reasonably practical’ requires consideration of ‘the availability and suitability of ways to eliminate or reduce the hazard or risk’ (s 20). If the CFA determines that there is some way to reduce a risk that is commercially available and suitable, but there is no agreement from the UFU then the measure is not ‘available’ to the CFA. Under this clause an employer is constrained, even if there is a risk to health and safety the employer can’t take action to rectify it without ‘agreement’. Whether that would be a successful defence or not would remain to be seen but it would certainly complicate the issue.
Second this clause says ‘the parties have prioritised the health and safety of the employee covered by this Agreement…’ Because volunteers are not party to the agreement I would infer that this clause is intended to be read as “the parties have agreed to prioritise the health and safety of employees ahead of other concerns” not as “the parties have agreed to prioritise the health and safety of employees ahead of others, such as volunteers”, but it is ambiguous and the clause could well see health and safety for paid firefighters dealt with in a different way to volunteers. Under this clause it could be the case that volunteers could be issued with clothing, equipment etc that the paid staff would not agree to. Again if Victoria had adopted the Model Work Health and Safety Act 2011 that would be problematic, because any obligation owed to a ‘worker’ is owed whether that worker is paid or a volunteer. In Victoria the Occupational Health and Safety Act deals with ‘employees’ and ‘employers’ so this clause may be allowed but it could lead to differential levels of uniform and equipment.
Other concerns and the Fair Work Commission
The CFA has other concerns regarding the position of volunteers – Country Fire Authority and United Firefighters’ Union of Australia Bargaining Dispute s.240 B2015/1496 and B2015/1498 15905955/1 CFA – Alternative Proposal to the Union Claim Version 17.2/1.0 Preserving the role of Volunteers. In his non-binding recommendations Commissioner Roe said (at [7]):
I do consider it necessary to recommend changes to the Agreement to underline that the Agreement only applies to paid professional firefighters and does not apply to volunteer firefighters or affect their important role … The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations is not altered by this Agreement.
That the agreement only applies to paid professional firefighters is a limitation that the Fair Work Commission cannot avoid. Enterprise Agreements are made between employees and employers, the Commission would not have jurisdiction to require an enterprise agreement to apply to volunteers but by consistently distinguishing between paid and volunteers firefighters (eg in cl 83.5, discussed above) it will, if adopted, create a two tier CFA in a way that is inconsistent with s 6F of the Act.
Second it is hard, if not impossible, to see how the role of volunteers will not be altered by the Agreement. Whilst the CFA and volunteer firefighters are clearly pushing the issue and making their position clear and public, the UFU is relatively quiet. UFU officials have been quoted in the press (eg ‘Victoria’s CFA, union Enterprise Bargaining Agreement dispute explained’, ABC News (Online) 8 June 2016) but there is very little on the UFU website to refute the arguments that the proposed agreement does represent a radical change of the CFA and the role of volunteers.
Conclusion
In the absence of some detailed explanation from the UFU as to why this is not the case and how the agreement won’t alter the ‘role of volunteers in fighting bushfires and maintaining community safety’ then I have to agree with Rush QC’s opinion that:
The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act.
It provides unprecedented powers within the CFA to the United Firefighters Union.
The EBA undermines the role and independence of volunteers.
Those sacked or resigning had no choice but to oppose the EBA.
Australian Emergency Law 
It’s a shame also that the Staff Agreement uses the terms “professional firefighters” and “volunteer firefighters” instead of paid and unpaid. Professional is not about remuneration, it is about skill, commitment, pride, preparedness and a whole raft of other personal attitude and characteristics (see extract below, albeit about paramedics).
Most volunteer firefighters (and indeed most volunteer emergency services personnel) that I know are professional – they just don’t get paid (and often don’t want to be paid).
In all professions – including paid workers – there are a few unprofessional people, so labeling paid firefighters as professional (with the implied exclusion of volunteer firefighters as being professional) is disrespectful and perhaps even insulting!
++++++++++++
(Excerpt from Bledsoe, Bryan E. on Professionalism )
“Professionals (in the patient care field) place their patient first; non-professionals place their ego first. Professionals practice their skills to the point of mastery then keep practicing to improve them and stay sharp. Non-professionals do not believe their skills will fade and see no reason to constantly strive for improvement.
Professionals understand the importance of response times; non-professionals get to an incident when it is convenient.
Professionals take refresher courses seriously because because they know they have forgotten a lot and are eager for new information. Non-professionals believe they don’t need training sessions and dislike being required to attend them.
Professionals set high standards for themselves, their crew, their agency and their system. Non-professionals aim for the minimum standard and can be counted on to take the least line of resistance.
Professionals critically review their performance, always seeking a way to improve. Non-professionals look to protect themselves, to hide their inadequacies and to place blame on others.
Professionals check all their equipment prior to emergency response. Non-professionals hope that everything will work, supplies will be in place, batteries will be charged and oxygen levels will be adequate.
Maintaining professionalism requires effort. But, the result of that effort – the admiration and respect of one’s peers – is the greatest compliment a person can receive. True professionals establish excellence as their goal and never allow themselves to become satisfied with their performance.
Professionalism is an attitude, not a matter of pay. It cannot be bought, rented or faked. The Paramedic must always strive to maintain that level and commitment known as professionalism.”
Interesting read (as always!) Michael. I’m especially intrigued by the issue you raise about the 7 firefighters and the relevant safety legislation- an interesting point that could’ve really made for some interesting changes if Vic was under WHS Act.
An issue of equal importance to WHS is accountabilty for command decisions. I work with both paid and volunteer officers that display a range of competence. For the benefit of the community a uniform level of accountability should apply to any incident commander. I believe that the most qualified and experienced officer (paid or volunteer) should take incident command. However, that person must be subject to accountability for their command decisions. The most obvious example of reduced responsibility is the control of prescribed burns and the consequences for not confining them within the designated control lines.
I’m not sure what you mean by ‘accountability’ – if you mean ‘liability’ then an IC, whether volunteer or paid will not be liable, the agency for which they are working, in this context the CFA and ultimately the State of Victoria would wear any liability. And setting hazard reduction burns is not a no risk activity but it is a policy across Australia that they are warranted and that the benefits exceed the risks which can never be reduced to zero. It follows that just because a burn escapes the planned control lines it does not prove that a poor decision was made or that anyone was negligent.
Hi Michael
I suppose that accountability could be viewed as internal agency responsibility for decisions, where as liability is a legal issue.
You are correct that prescribed burns have inherent risks. However, I have been involved with escaped burns where it was relatively foreseeable that a burn may not be contained. When a person’s career may potentially be impacted if negligence is proven in not controlling a burn it adds an incentive to operate conservatively.
I am in no way suggesting that volunteers should not command, in many circumstances volunteers are the most experienced people on the fire ground. However there should be consequences if decisions prove not to have been sufficiently risk adverse.
Sure – not sure what those consequences might be but it’s a fair point.
Me neither.
Thank you for taking the time to host such an interesting blog. I’m looking forward to contributing more in depth comments in the near future. I’m a senior emergency services officer and in the final year of a law degree. Hopefully I will be able to provide considered comments on both operational and legal issues.
Have you not noticed that Section 6F is self-contradictory, under your interpretation of “integrated”? The clear intent of the Section is to subordinate staff to volunteers. This contradicts your interpretation of “integrated” as meaning “combined as a whole” and not treated differently. 6F is indeed a key section here. If you understand its origin in the turf-war empire-defense mentality of the VFBV then you also understand why the VFBV attacks anything that improves the workplace rights of CFA staff. This is why ex-President John Peberdy critiqued the EBA in terms of ego and pride, with indirect reference to Section 6F: “What they’re trying to do is fundamentally change CFA and make us a career fire brigade supported by volunteers and I think that’s an insult to every volunteer in Victoria.” The language here — “insult” — echoes an 1888 resolution of the volunteer association to “view with indignation” the formation of an association to represent the interests of paid firefighters. The VFBV are still mired in that 19th century turf war mentality, which is why they are being unreasonably hostile to staff.
Secondly, do you realise that by analysing “7 on the fireground” from an abstract legal perspective, you are missing out vital operational considerations? Do you understand that staff are on the road in the fire truck within 90 seconds of the pager going off, but volunteers usually have to drive to the fire station first, adding at least 5 minutes to their response? If the first truck is all staff and the second truck includes volunteers, this leaves the first crew facing the devil’s choice: do we make an unsafe internal attack with no backup crew or do we watch the house burn, possibly with people trapped inside? Nearly everyone would choose the former but it’s an unfair situation to put firefighters in. This is why it needs to be stipulated that 7 *staff* are dispatched straight away. It could also be the case that even when that second truck of volunteers arrives, it doesn’t carry two qualified breathing apparatus wearers in any case, which makes it useless in terms of the 7-on-the-fireground safety protocol.
There is much else to critique here, but that will do for now.
No, I don’t see that s 6F is self contradictory, but even if it is, it says what it says. As for analyzing ‘7 on the fireground’ from an ‘abstract legal perspective’ that is in fact my task. I am indeed ‘missing out vital operational considerations’. My conclusion is the proposed EB, at least teh clauses I’ve discussed, are inconsistent with the CFA Act and to the extent that they require agreement with, rather than consultation with, the UFU the agreement gives ‘unprecedented powers’ to the UFU, or at least powers that are far greater than those anticipated by the Occupational Health and Safety Act.
Whether the requirement for seven paid firefighters is a good idea or not is not what I’m addressing and whether it’s a good idea or not doesn’t change the fact that it is inconsistent with s 6F. It may be that most times it will be paid staff that are responding as they are on station, but it is conceivable that on any given day there may be volunteers on the station who can make up the seven, or that a volunteer appliance is for whatever reason closer so they are despatched along with a pumper staffed by paid firefighters. If they are on scene, and there are seven of them, having to wait for more paid staff to arrive would give rise to the same ‘devil’s choice’ but again, in my view, is inconsistent with s 6F. My aim was not to say whether the provisions in the EB were reasonable, but were they consistent with the stated position that the CFA is a volunteer service supported by paid staff, and if it is and that leads in some cases to a slower response (as it must at all volunteer stations) then that is the choice the government makes. I think the whole dispute arises because of those sections 6F-6I. Without them the service could employ firefighters and rely on volunteers as it sees fit – see also Employing firefighters in the NSW RFS (April 18, 2016)
Interesting – so would I be misrepresenting you if I said it would appear you are saying that Sections 6F-6I potentially limit the CFA’s ability to maximise its contribution to public safety (by minimising response times)? Would it be accurate to say that those clauses sacrifice public safety in order to serve other values? A reasonable judgement (I realise you wouldn’t want to go here) would be to say that they sacrifice public safety for volunteer pride. (I would need to double check but I believe at least some of those were brought in by coalition government amendments, which is interesting considering the current situation.) A reasonable conclusion might be that a government that wanted to prioritise public safety, while still servicing volunteer pride by retaining 6F-6I, would consider moving all staffed fire stations to the control of an organisation other than CFA, which was not bound by s 6F-I of the CFA Act or any similar legislation. I know you won’t want to make those value judgements but I’m interested in your legal perspective as far as it can go.
I infer that ss 6F-6I are meant to give the CFA a focus and direction that is unique (in that no-other emergency service legislation has a similar clause). I think it does go to the history of country or rural fire fighting where fire brigades were very much local community organisations and came together into an organisation like CFA for some central support and to build opportunities to work together. Whether that model is still appropriate in today’s world, or even an accurate description of the reality is debateable, and different jurisdictions have approached the issue of how to manage volunteer brigades differently. In Western Australia Bush Fire Brigades are very much ‘local’ – an issue that is now under review (http://www.abc.net.au/news/2016-06-23/yarloop-fire-report-bushfire-management/7535778). In NSW Rural Fire Brigades are a central part of the state operated rural fire service (see ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015))
The real problem, in my view, is the boundary see http://www.cfa.vic.gov.au/about/cfa-and-mfb-boundaries/ and Metropolitan Fire Brigades Act 1958 (Vic) s 4 and Schedule 2. I don’t know Melbourne all that well but having the MFB limited to those areas means that anyone outside that area gets their fire service from the CFA. Reading the CFA Act one would infer that means they receive a volunteer service but the CFA and the government clearly don’t believe a 100% volunteer service can meet that demand (if they did, that’s what there would be). It follows that in my view it’s actually incorrect to describe the CFA as a volunteer organisation. It’s a government organisation that engages volunteers. According to the 2015 annual report there were 972 employed ‘operational staff’ and 35367 volunteers so the volunteers are beyond doubt the bulk of the firefighters but not all firefighters are volunteers (as the current debate shows) and notwithstanding s 6F, those paid firefighters aren’t really expected to merely support and back-up the volunteers.
As for ‘moving all staffed fire stations to the control of an organisation other than CFA, which was not bound by s 6F-I of the CFA Act or any similar legislation’ that would be akin to NSW. In that state Fire and Rescue NSW has permanent or retained (called volunteer) fire fighters. They are all paid and they operate within a fire district and fire districts include the large rural urban areas. So a country town like Armidale, or Bathurst, or Wagga Wagga etc will have a NSW Fire and Rescue Fire station to provide urban fire fighting. According to the website, NSWF&R has 337 fire stations providing fire protection for ‘90% of the State’s population …’. Outside the fire district the fire service is provided by the NSW Rural Fire Service, a volunteer fire fighting service; the RFS clearly has a large staff, but front line firefighters are volunteer (see Employing firefighters in the NSW RFS (April 18, 2016)). NSW F&R provides fire services for 90% of the state’s population, the RFS on the other hand provides fire services for ‘over 95 percent of the [state’s] landmass’.
As for sacrificing ‘public safety in order to serve other values’ that happens all the time otherwise 100% of a government’s budget would be spent on ‘public safety’. Even if that were the case there are still lots of agencies that act for public safety ranging from the emergency and health services to community services, town planning, libraries, roads etc – everything has a public safety element. So governments are elected to allocate budgets and they have to make choices. It is recognised that volunteers in the emergency services provide incredible service to their community, a service that no-one could afford to pay for. Focussing on the volunteers in an agency like the CFA could be described as sacrificing ‘public safety in order to serve … volunteer pride’ or they could be described as enhancing public safety by ensuring that the contribution of volunteers is valued and recognised and sacrificing other values, such as ‘employee pride’ or ‘union control’. Those sort of pejorative descriptions are not only loaded and unhelpful, they are simply a tool of rhetoric to advance a particular pre-conceived attitude. Neither description would be true.
M. Eburn,
Your previous comment mentioned that “having to wait for more paid staff would give rise to the same ‘devil’s choice'”. Are you under the impression that there would be a requirement to wait at the fireground for 7 staff to arrive? This is absolutely not correct.
Also, in your first point regarding the “7otfg” clause, your suggestion of including volunteers in that 7 implies that a volunteer response is guaranteed. Aside from slower times and potentially insufficient qualifications, the fact response is not at all guaranteed means that it absolutely cannot be factored into the organisations responsibility to provide a duty of care to its employees through minimum manning.
It seems that sections 6f-6i are the hurdles standing in the way of common sense on this matter.
The clause under consideration says that the CFA will ensure that ‘a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations’. I suppose I can read that to say that firefighting can begin before they all get their provided they are on their way, but that doesn’t change my conclusion that if this was a truly integrated service, the clause would refer to seven firefighters, not ‘professional firefighters’.
According to the 2015 annual report the CFA had 972 employed ‘operational staff’ and 35367 volunteers. Many Victorians depend on a volunteer response and a review of any Report on Government Services shows what a great job they do (see Michael Eburn, ‘Bushfires and Australian Emergency Management Law and Policy; Adapting to Climate Change and the New Fire and Emergency Management Environment’ in Austin Sarat, Lloyd Burton and Lisa Grow Sun (eds), Cassandra’s Curse: The Law and Foreseeable Future Disasters (Emerald, 2015, Studies in Law, Politics and Society vol 68) 155-188). Given that I would think a volunteer response to any fire could be guaranteed – it may take a while and may require calling volunteers from other stations, but if they were needed, they’d get there.
As for meeting the duty of care to the CFA’s employees one has to ask that if relying on volunteers isn’t good enough to protect the employees it also not good to protect the volunteers. Taken to its extreme that would mean the CFA should have no volunteers. That’s an argument that could be made but we know that the State could not pay for the sort of fire protection that the volunteers provide and it would represent a dramatic loss of community resilience.
So the CFA does have paid staff and volunteers and one can’t see that this is about to change (though it could and see an earlier comment and my response on the question of whether the CFA should move ‘all staffed fire stations to the control of an organisation other than CFA, which was not bound by s 6F-I of the CFA Act…’). If the CFA is an integrated service then it could say that what is required is seven firefighters. In integrated stations that would usually be seven paid firefighters but it doesn’t actually have to be. If there are seven on station they can go straight away, if there are not seven the pagers go off and you wait to have a crew- which is what all volunteer brigades have to do, wait to have a minimum crew before they turn out. That would have implications for response times but that’s a matter for government.
So are sections 6f-6i … hurdles standing in the way of common sense’? Depends what you see as ‘common sense’. Common sense may be that if you can send seven firefighters and 3 are volunteers and 4 are paid, it is ‘common sense’ to do that and not to require the sending of another 3 paid staff. Equally it’s common sense to let the most experienced and suitably qualified firefighter take command of all firefighters, regardless of anyone’s employment status. On the other hand, you might say ‘common sense’ requires the despatch of seven paid firefighters because that is what is required for efficient fire fighting. I’m sure that in this dispute everyone is arguing for the sense that is common between them and their peers.
Thanks Michael, I appreciate your patient engagement despite the fact that I obviously hold strong views. I know you’re trying to be a “legal positivist” but you’ve strayed along with me into evaluating the usefulness of the legislation, so I want to clarify your positions in that arena. I think this is imperative as the law exists to serve concrete purposes in the world beyond the law books.
You have said that “it’s actually incorrect to describe the CFA as a volunteer organisation”. Doesn’t than mean that 6F is invalid? I understand your point about all legislation serving to judge competing values. However don’t you think it’s an unusual choice to make, to sacrifice something of concrete value – public safety, along with workplace safety and rights – in order to serve something completely symbolic – “valuing” volunteers? The public rightly likes to value our selfless and vital volunteers – but I don’t think they would choose to do it in ways that clearly reduce public safety. There are areas where volunteer brigades have resisted the CFA’s wish to bring in staff. This resistance has been taken seriously due to the subordination of staff to volunteers in the Act, and within the structure of the Board, and under the culture that predominates within CFA management as a result. Personally I think the public in those areas would be appalled if they understood the impact this has on their safety, mainly due to the differences in response times.
I have been a volunteer myself so I’m not unsympathetic to their position. (I also live in a volunteer area and have no problem accepting that a staffed response would be uneconomic there.) In fact I was a volunteer and not a career firefighter myself at the time that the CFA (Volunteer Charter) Act was passed, and even then I felt the Charter was pointless symbolism that felt quite empty in light of the fact that we were constantly left wanting for training and equipment. Some people get value from being told they’re heroes or feeling like they are masters of their empire, but if that’s their main focus, I think they’re in it for the wrong reasons, and if it diminishes public or firefighter safety, that’s definitely not a good thing. I said that then and I say it even more strongly now that my colleagues are having to battle for their workplace safety against people who claim it offends their pride. 6F-I are fine as motherhood statements if they don’t sacrifice any more important values. But it is becoming clear that they do.
And I’m sorry, it’s not correct to dismiss the union claims as plain “union control” or “career pride” – a plethora of evidence exists against this claim, both from past occurrences where the union was the only party acting in the interests of the safety of all firefighters and the public, and from the direct operational safety consequences of some of the claims made (especially 7 on the fireground). On the contrary, Peberdy’s use of the word “insult” points directly at the relevance of ego and pride on the VFBV side. I’m not sure how you can believe otherwise. And in fact the documented collaboration of the VFBV with the LNP to raise and pass the volunteer charter Bill, from where 6F originated, and upon which basis the current attack on union claims seems to be made, in my mind points towards a premeditated war of control, with legislation put in place in preparation for the next round of EBA negotiations.
I’d also like to hear you clarify your position on my proposition that perhaps all staff need to be placed under the auspices of a separate organisation. (In fact, that’s what happened in Vic in 1891, after the volunteer association lobbied for it, counter to the government’s intention to legislate a single fire service – itself also intended to bring the turf war between volunteers and paid firefighters under control. Yes, ego and pride have poisoned this arena for a long time.) You make no comment either way when referring to the NSW example. But you do say you see the CFA/MFB boundary as problematic. Shifting the boundary (and in fact encompassing regional centres) as you seem to advocate would be one way, possibly the most practical way, to meet my suggestion of placing all staff under the control of an organisation other than the CFA. So it seems we are on the same page there.
Actually much of value would be lost under such a move, but the benefits might outweigh what would be lost. It’s just a pity – if the VFBV would grow up, it wouldn’t have to happen.
Is s 6F is invalid? I never know quite what people mean by ‘invalid’. It’s not ‘invalid’ as it’s within the power of the legislature to create that section. The issue is that there is a separation of powers between the legislature and the parliament. The Parliament has passed a law that includes s 6F. It is up to the executive (the CFA and the Minister) to give effect to that legislative direction. If s 6F says ‘the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ and s 6I says ‘The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services’ then the members of the CFA have to give effect to that. No doubt the efforts will be imperfect but that is the goal they strive for.
I think that is why ‘Those sacked or resigning had no choice but to oppose the EBA’. They were committed to advance the interests of the CFA as a primary volunteer organisation but the Premier was directing them to adopt the Enterprise Bargain. They couldn’t honour both and that is the ultimate time when honour should prevail and you resign or stand your ground and get sacked. In my view the proposed agreement is contrary to the CFA Act.
I don’t think that the choice here is ‘to sacrifice something of concrete value – public safety, along with workplace safety and rights – in order to serve something completely symbolic – “valuing” volunteers’. First volunteer firefighters and other members of agencies with a public safety role do advance public safety. The CFA is a huge public safety institution in Victoria and it is ‘first and foremost a volunteer-based organisation… supported by employees in a fully integrated manner’. Trying not to add employment terms that move away from ‘fully integrated’ might be seen as some as putting at risk community safety but others would see it as advancing community safety by ensuring a fully integrated CFA to operate across all Victoria.
If the public want the better response times that comes from having permanent brigades then that is a political issue – they can elect politicians to implement the policies that they want. I’m not a political scientist but I bet that actually a large number of voters would actually support the volunteers here. Whether that’s because of effective campaigning, a genuine attraction to the volunteer ethos or misguided loyalty I don’t know – but we’ll see how labour goes in the Federal Election.
Of course ss 6F-6I are not ‘motherhood statements’ they are a clear direction to the members of the CFA and the Minister as to what the Parliament expects them to do.
I’ve been, and remain, both a volunteer (though not with CFA) and a union member (though not the UFU) and I’m sure it’s “not correct to dismiss the union claims as plain “union control” or “career pride”’ any more than it’s correct to say the position of the VFBV is based on ‘volunteer pride’ or ‘ego’ or wanting to heroes. I’m sure everyone, on both sides, genuinely believes in the merits of their position. In my view the UFU position is however inconsistent with the Act.
What’s my position on the proposition that all staff need to be placed under the auspices of a separate organisation? I don’t think it’s appropriate for me to express a view. I do note however the 2009 Victorian Bushfires Royal Commission’s final report at [10.6.2]:
On your interpretation of 7otfg, volunteers cannot be dispatched under the current system. Their attendance can only be requested, with no guarantee that they will be available and will choose to respond. “Dispatch” implies that they are instructed to intend, with a reasonable expectation that they will. The only firefighters that can instructed to attend are career firefighters. This is why it needs to be specified.
Perhaps if people are serious when they claim that staff should be treated no differently than volunteers, then volunteers should be expected, as staff are, to follow orders (including orders to respond) and be liable to be charged under the Act if they refuse to comply? Ridiculous, of course, but it serves to prove that your interpretation of “integrated” is unworkable.
I don’t follow the argument here. The proposed clause says that the CFA will ensure that ‘a minimum of seven professional firefighters to fireground incidents are dispatched before commencement of safe firefighting operations’. Volunteer firefighters can be ‘dispatched’. The CFA ‘dispatches’ volunteers all the time. The pagers go off, people respond to the station, when they have minimum crew levels they are ‘dispatched’. Volunteers are ‘instructed to intend, with a reasonable expectation that they will’. Paid staff respond when they are at work, but not when they aren’t. The issue isn’t really that volunteers may or may not show up, it’s that they are not on station ready to respond.
Volunteers are expected to follow orders and are liable to be charged under the regulations – see Country Fire Authority Act 1958 (Vic) s 30 and Country Fire Authorities Regulations 2014 (Vic) Part 4, Division 4. Even so, even if my ‘interpretation of “integrated” is unworkable’ it doesn’t change the fact that the Act says that the CFA is ‘first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’. That has to be given effect – if you think it’s unworkable – on my definition or any other, it doesn’t mean that s 6F simply doesn’t exist or can be ignored.
On 6F being invalid. You have stated CFA is not a volunteer organisation. 6F says, in effect, it is. Does that mean that those aspects you highlight as evidence that it it’s incorrect to describe CFA as a volunteer organisation must be rectified by CFA so that they comply with the legislation? What would you say they would have to change in order to return to being a volunteer organisation?
On sacrificing safety for symbolism, on what possible grounds can you argue that public or firefighter safety would actually be improved by refusing to dispatch 7 firefighters within a guaranteed 90 seconds? Refusing that clearly does reduce both public safety and firefighter safety. And on what basis could it be argued that blocking this provision would “advance community safety by ensuring a fully integrated CFA to operate”? This is a nebulous statement with no concrete justification. The same argument could be made about genuine consultation with staff, as long as an effective mechanism is in place to ensure disputes are resolved in the public interest.
On it not being about volunteer pride or ego, to what do you attribute Peberdy’s description in terms of “insult”? How else do you account for the fact that the vast majority of people complaining about this will in fact not be affected by the EBA at all, especially not the 7 on the fireground provision? What else could account for their complaint, other than symbolic or emotional grounds?
In my view the CFA is not a volunteer organisation and, in my view, that could not be corrected. In my view a volunteer organisation is something like the Lions Club. People join but there’s no obligation on the Lion’s Club to actually do anything, or even exist. The local Lions Club could wind up or Lions International could wind up. The Lions club exists because its members want it to and it has no legal obligation to do anything.
The CFA is a creature of statute. It exists because section 6 of the CFA Act says it does. And it has to do those things that section 20 (and other sections require it to do). The CFA does not exist because a bunch of volunteers decided it would (even if that is the history of particular brigades) and it doesn’t volunteer to do what it is required to do. The CFA there is not, in my view, a ‘volunteer’ or ‘voluntary’ organisation. It is an authority, created by Parliament that makes use of and is intended to recognise the contribution of volunteers.
Just as an example, the Work Health and Safety Act 2011 (NSW) (an Act that was meant to be adopted across the country but so fare Victoria and WA have not picked it up) defines a volunteer association as ‘a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.’ That’s not binding anywhere else but if you were to assume, for the sake of the argument, that this was a good definition, then the CFA can’t be a ‘volunteer association’ because it has employees.
That of course is really just semantics (as so much of law is). That’s me saying that in my view it’s a poor use of words.
Do I think that something has to be rectified by the CFA? I think that it must be a real problem for the CFA and part of the issue here. In another comment you wrote about s 6F you said it was ‘internally inconsistent’ and I have been persuaded that you are correct. The CFA have to try to give effect to ss 6F-6I. They don’t have to succeed and they have a lot of discretion as to what to do and what the terms mean (see other discussions such as Responding ‘the closest fastest most appropriate resource’ NSW Fire and Rescue
(June 13, 2016) https://emergencylaw.wordpress.com/2016/06/13/responding-the-closest-fastest-most-appropriate-resource-nsw-fire-and-rescue/ and the other posts it refers to regarding discretion and ‘Wednesbury unreasonableness’) but they can’t ignore the directives. That was why I agreed that ‘Those sacked or resigning had no choice but to oppose the EBA’ and either resign, or get sacked.
As for the debate about ‘community safety’ I’m not arguing that ‘public or firefighter safety would actually be improved by refusing to dispatch 7 firefighters within a guaranteed 90 seconds’ but that’s not what the EB says. If there are 7 firefighters on a station, and 3 are volunteer and 4 are paid, there are seven that could be dispatched within 90 seconds. The draft EB does not say that the CFA will ‘meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched within 90 seconds’. It says ‘seven professional firefighters will be dispatched’ regardless of who else is available (but I do note the answer to the FAQs provided by the UFU that you have supplied in another post and the provision in the clause that says “the first arriving Incident Controller on scene can determine the number of appliances and crews required for the fire/incident and can notify oncoming appliances and crews that they are not required to attend” so the extra firefighters can be ‘called off’).
“And on what basis could it be argued that blocking this provision would “advance community safety by ensuring a fully integrated CFA to operate”?” it depends on how you define ‘community’. If you mean the community served by an integrated station, then of course that community is better served by rapid turn out of paid, on station firefighters. If you talk about the community of Victoria, the community safety may be enhanced by having all volunteers as it is perceived to increase community resilience as volunteers might respond at less cost and put in long hours, have greater surge capacity and if they are more motivated by being in all volunteer brigades that may also enhance community safety. As the Royal Commission said (at [10.1.1]:
Further, at [10.2.1]
Finally at [10.6.2]:
So making sure that volunteer firefighters are given opportunities to fight fires with their paid colleagues, and recognising that sending seven firefighters, regardless of employment might improve the training experience and morale of the volunteers and thereby increase the capacity to protect all of Victoria. I’m not saying any of those propositions are necessarily true, but it is arguable. So merely asserting one position, or the other, doesn’t establish the point.
You’ve mentioned ‘Peberdy’s description in terms of “insult”’ but I’m not sure what that’s a reference to so I can’t comment on that; but many people would use a term like that if they thought there arguments or they were being treated with disrespect. And as noted above, if you want to look at the bigger picture, not just the integrated stations, people may well believe they are affected even if it turns out that they are not. Some may feel that even if they ‘will in fact not be affected by the EBA at all, especially not the 7 on the fireground provision’ the CFA, and therefore all of Victoria, will be affected. Or they may think it’s inconsistent with the Act and pursuant to a principle of the rule of law the CFA should try to comply with its Act.
Even if it is ‘pride and ego’ it doesn’t mean any position adopted is wrong. People can be both proud and correct. I just don’t see it helps, or is relevant, to try and assign motives to people that in essence say ‘it has to be some improper motive, else they’d see the world like I do’. I’m sure everyone is actually acting in what they perceive to be the community’s best interests. They just have a different view of what is the relevant community and what will advance their best interests.
Michael thanks for your reply. The 7 on the fireground clause as stated in the current 2010 MFB EBA is worded the same as the CFA document that Commissioner Roe initially reviewed and recommended be clarified to “dispatched”. I can assure you first hand that there is no waiting occurring. Additionally the 7 staff on 2 trucks are ideally not dispatched from the same station.
I reiterate that a non-guaranteed response from volunteers cannot be written into a legal document as providing a duty of care to safe minimum manning for staff. You make a point that the CFA should also have a duty of care to their volunteers, but I ask you is the staff EBA the place in which that should be addressed? I think no.
I appreciate you are learned in this field, but suggesting that a volunteer response is theoretically guaranteed due to the sheer size of the volunteer base ignores the importance of response times in containing a fire, of which a matter of minutes has a proven to drastically affect outcomes of life and property saved. I should have specified “a guaranteed response in an acceptable timeframe” instead of just “guaranteed response”.
Volunteers are vital, like you said the states requirements could not be met without them. I tend to agree that all of Victoria’s career firefighters should be covered under the same and separate umbrella to volunteers, however until this occurs, surely the staff deserve the safest work environment practicable.
I know you’re not taking a firm stance on either side but rather arguing from the legal realist point of view. As far as conflict resolution goes, if the VFBV had their way we’re looking at a win/loss scenario for career staff, and although I don’t agree, the vols (through heavy input from the LNP, Herald Sun and the VFBV) feel they are currently at a loss. What do you propose as a win/win outcome that addresses all these issues?
Patrick.
If clause 8.5 referred to ‘seven firefighters’ instead of ‘seven professional firefighters’ that does not rely on a ‘non-guaranteed response from volunteers’. It would commit the CFA to sending seven firefighters regardless of whether they are paid or not. It would be appropriate to say appropriately qualified or BA qualified or whatever is required, but the current phrase is making the distinction based on employment status. If there really is a ‘fully integrated’ service then the CFA wouldn’t not send paid staff – the obligation would be to send firefighters that are most appropriate in the circumstances.
Is ‘the staff EBA the place in which’ obligations to volunteers should be addressed? No I don’t suppose so but my point was one of logic – if relying on volunteers isn’t good enough to protect the employees then how can it be good enough for volunteers. If it’s correct that only employed firefighters can meet OHS obligations, the CFS would have to cease having volunteer firefighters. The reality is that however that’s not going to happen, but equally the CFA aren’t about to be prosecuted for breaching OHS laws by sending volunteers to fight fires. I understand the need to ensure safety of employed firefighters, but I query the implied claim that this can only be done by backing up salaried firefighters with other salaried firefighters regardless of experience or training.
“[S]uggesting that a volunteer response is theoretically guaranteed due to the sheer size of the volunteer base” does not ignore the importance of response times. I concede waiting for volunteers does increase response times but if Victoria choses to have a volunteer based fire service that is the price they pay. As I say, whether what’s being proposed is a good idea or not does not determine the issue of whether or not it’s consistent with the Act.
What do I propose as a win/win outcome that addresses all these issues? I don’t know the issues or the background well enough. That is what people get elected, and appointed to industrial relations tribunals, and unions to resolve. No doubt it has to be negotiated.
The CFA can’t possibly “commit the CFA to sending seven firefighters regardless of whether they are paid or not”. The CFA is not able to “send” volunteers. It is only able to request their attendance. How long do you give them before you give up and dispatch additional staff? How does 90 seconds sound? Any more and you are unnecessarily compromising public and firefighter safety.
The CFA can “commit the CFA to sending seven firefighters regardless of whether they are paid or not”. It means just that – we’ll send seven firefighters. It doesn’t mean they have to be either paid or volunteer. Imagine a fire call is received and there are volunteer fire fighters on station for training. A paid crew is dispatched so the ComCen then look for another crew. IF there are volunteers on the station for training the CFA could say ‘we’ll send them’ and ‘call them out’. If for some bizarre reason they said they were not available the ComCen might decide to then call out another paid station – but either way the CFA can commit to sending seven even if in most cases it will be seven paid firefighters.
Thanks for this analysis. You have only considered aspects related to the position of CFA volunteers. The other key aspect of the CFA Act is the powers given to the Chief Officer. Where the Chief Officer is unable to make decisions because consultation is required with the UFU or the rules set down by the UFU prevent certain decisions then this also goes against the CFA Act.
David, that may be true and yes I’ve given only limited discussion here. I’ve noted proposed cl 90.4 and the need for agreement on OHS issues. Can you point to a clause that would limit the capacity of the Chief Officer? And are you talking about decisions on the fire ground?
I also wanted to comment on your conclusions. First of all the UFU have gone into some detail about the truth concerning the effects of this EBA on volunteers: http://www.ufuvic.asn.au/wp-content/uploads/2016/06/16-06-16-FAQ-about-CFA-UFU-proposed-Agreement.pdf
You argue that volunteer firefighters are making their position clear and public, but don’t give any evidence for this. For some time, almost all of the concerns articulated relied on false claims, most likely regurgitated from clear lies published by the Herald Sun and uttered by Liberal MPs. (For example, that all volunteers would be replaced by staff or all volunteers would have to wait for staff to arrive before attacking the fire, etc.) In the past week or two, those complaints have all but ceased, presumably because everyone now knows they are false. If you look at their complaints now, they are not clearly articulated at all. Nearly always they echo the former Board’s vague complaint, and that of its president, that the EBA would bring to an end 6F’s subordination of staff to volunteers. No detailed justification for that claim is given in most cases. Perhaps you can cite an example to refute me here?
You complain that “it is hard, if not impossible, to see how the role of volunteers will not be altered by the Agreement” and then apparently use this to conclude “is contrary to the CFA Act”. However, you make that complaint merely by way of refuting Commissioner Roe’s findings, and in transitioning into your conclusion, give no argument as to why changing the role of volunteers necessarily violates the Act. There is no clause that stipulates exactly what the role of volunteers should be. You have attempted to argue earlier in the piece that 6F’s “integrated” requires that firefighters are not “treated differently because of their employment status”. This is a different condition than merely changing the role of volunteers.
In any case, I’m obviously no professor of law (!) but it seems to me you are taking an extreme interpretation of “integrated” here. In the absence of any definition in the Act of what integrated means, surely even if it is taken to mean that firefighters are not “treated differently because of their employment status”, there needs to be room for reasonableness. If not, then surely the entire Part 3 of the Regulations is contrary to s 6F of the Act. That suggests to me that your interpretation is contrary to the intent of the 6F.
So, assuming what we’re actually talking about is *substantially* different treatment, and therefore *substantially* altering the role of volunteers, while you claim it is hard or impossible to believe this is not the case, many people other than the UFU have argued that this is not the case. This includes numerous volunteer brigades and indeed the volunteer leadership of an entire district, District 27: “it is clear that it will not mean the ‘end of the CFA as we know it’. We understand that the role of volunteers will remain largely unchanged as a result of the EBA”. It also includes the Victorian Farmers Federation’s President: “There are 1200 stations where the EBA doesn’t make any difference to volunteers. It is only integrated stations where it have an impact.”
http://www.smh.com.au/business/workplace-relations/cfa-crisis-firefighter-handed-a-bullet-shell-for-the-premier-20160622-gpozsi.html
One more thought, or question. Numerous CFA procedures treat firefighters differently depending on rank. Is this in violation of 6F according to you, since some ranks are only accessible to employees? What if the EBA defined “professional firefighter” as “a CFA member of the rank … [list all of the ranks operational staff may attain]”? Would that avoid having it violate 6F? Does it matter that volunteers can in fact achieve those ranks? All they have to do is successfully complete the career firefighter recruitment process and subsequent training and experience.
Russell
Thanks for the link to the FAQ about the CFA UFU proposed Enterprise Agreement . I hadn’t found that when looking at the UFU web page and I’m still not sure if there’s a link to it from their home page but it is both interesting and helpful. My evidence for the claim that ‘the CFA and volunteer firefighters are clearly pushing the issue and making their position clear and public…’ is that it seems to be the volunteer firefighters that are out protesting (remembering I’m seeing this from the distance of another jurisdiction and what I see depends on what the media reports) so their position is clear – not to say their arguments are clear; but their opposition is. As for the CFA they have relevant documents including the two legal opinions that I refer to and the CFA’s submissions (14 areas of concern) on their website so I could access that material. As I say I didn’t find the ‘FAQ’ document that you’ve now pointed me to on the UFU website.
You say that I:
I don’t agree with that but that just means I haven’t made my argument clear; the fault is mine. I think the EB is contrary to the CFA Act because as I read it, it does not create ‘a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ (a matter I’ll return to in my reply to your next comment) nor does it represent ‘policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services’. Whether achieving either of those objectives is possible or desirable is a separate question.
You say “In the absence of any definition in the Act of what integrated means, surely even if it is taken to mean that firefighters are not “treated differently because of their employment status”, there needs to be room for reasonableness.” I think that is probably correct – employees are different to volunteers and as you’ve noted in earlier comments, and particularly in Victoria given the terms of the OHS Act, an employer does owe different obligations to employees.
And fair enough. Commissioner Roe and the Premier also take that view. These are all issues where people are expressing ‘opinions’; none of us are ‘right’ because it does all depend on how we read words etc. That is why we have, ultimately, arbiters (courts, industrial relations commissions, appointed authorities etc) to make decisions and they can and do make decisions where other people would make other decisions. Whenever someone says words to the effect of ‘I have a QC’s opinion that I’m right’ you know the other side can equally get a QC’s opinion ot express the contrary view. So that other people have a different view to mine is fine and is indeed something I need to consider if I want to be confident in my own view – one has to give credit to the alternative view which is why, for example, I’m happy to have this debate with you – but at the end of the day one has to express one’s own opinion. On the issue of the views you’ve supplied I do note that the quote from the Victorian Farmers Federation’s President says “There are 1200 stations where the EBA doesn’t make any difference to volunteers. It is only integrated stations where it have an impact.” But if it has an impact on those integrated stations it’s still having an impact on volunteers. It may not have an impact on all volunteers but I don’t think that’s the test.
They are interesting points – the issue may well lie in s 6F. That section says that ‘The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ (emphasis added). I doubt that it ‘is’ what is described and I would question whether it ever could be. But s 6F and s 6I are directives that the CFA as administrators of the Parliaments statute have to give effect to. In my view, again noting that my analysis is limited to only 3 clauses, is that this EB would not be consistent with those terms. Is the problem the EB or ss 6F-6I?
Sorry to comment spam you but I also need to revisit the issue of 6F being self-contradictory according to your interpretation of “integrated”. Could you explain why you disagree?
“first and foremost” – this is clearly implying the primacy or superior importance of volunteers
“supported by” – this is clearly indicating that staff are subordinate or of lesser importance
From the Oxford Dictionary Online
foremost, adj: Most prominent in rank, importance, or position
first and foremost: Most importantly; more than anything else
support, v: [with object]:
Most relevant definition 2: give assistance to, especially financially
Most relevant sub-definitions:
-2.1 Provide with a home and the necessities of life
-2.4 (as adjective supporting) (Of an actor or role) of secondary importance to the leading roles in a play or film
These definitions of “support” aren’t greatly applicable, but the general message that the act of supporting someone positions that someone as the primary actor, and the supporter as a person other than the primary actor.
You complain that the EBA would create a “two tier” CFA, contrary to your definition of “integrated”, but clearly 6F aims to create exactly that – albeit with the opposite ranking to what you claim the EBA would create.
Indeed, Colleen Hartland MLC raised concern about this during the debate of this Bill, and sought to refer the Bill to a Committee. From Hansard, “I am concerned that an unintended consequence of this bill is to emphasise the difference between volunteers and staff and divide the CFA, and I think that would be detrimental to the team spirit that is required in an emergency situation.”
Tim Pallas MLA also expressed concern and foreshadowed the kind of hostile use of the legislation that you are now promoting. Again, from Hansard:
“At the bill briefings we have sought assurances from the government and departmental officials that this bill would not impact on industrial agreements and conditions relating to career firefighters. We continue to seek those assurances from the minister during this debate. It is important therefore that we recognise that to integrate the fire services to make sure that they can constitute an efficient and homogeneous force we have to promote and encourage volunteers but also recognise the rights, responsibilities and fundamental career aspirations of career firefighters.”
Russell
Don’t apologise for the ‘comment spam’ receiving and responding to comments helps me and hopefully you too (and “Arguing with a lawyer is like wrestling a pig in mud: Sooner or Later you realize that they like it”). As for the issue of s 6F being self-contradictory, back on 24 June (which seems like a long time ago now) at 4pm you wrote “Have you not noticed that Section 6F is self-contradictory, under your interpretation of “integrated”? The clear intent of the Section is to subordinate staff to volunteers”. My answer (also at 4pm) was “No, I don’t see that s 6F is self-contradictory, but even if it is, it says what it says.” There have been many comments and replies since then and more time to think about it and yes I see your point and I think the arguments you make in this latest post are quite compelling.
It would seem to me that if you took s 6F to its literal conclusion the paid firefighters would be like full time soldiers in the army reserve. Their job, as I understand it, is to make sure the unit functions, the stores are kept and the reservists trained. It’s not their job to go and fight the war for the reservists but to make sure the reservists are ready to fight the war they are called upon to fight (and apologies to the Army if I’ve got that wrong). That’s clearly not what CFA paid firefighters are doing.
It may indeed but that “the EBA would create a “two tier” CFA, contrary to your definition of “integrated”, but clearly 6F aims to create exactly that – albeit with the opposite ranking to what you claim the EBA would create” but if that is the case, that is what the Parliament has said is to be the case. Colleen Hartland MLC may well have been right to be “concerned that an unintended consequence of this bill is to emphasise the difference between volunteers and staff and divide the CFA” but, at the end of the day, the Bill passed and ss 6F-6I are part of the CFA Act and something the CFA has to attempt to give effect to.
To repeat what I said in my response to your previous comment:
Thanks Michael – I hadn’t heard that saying before about arguing with lawyers :). I’ll consolidate my replies to various comments here.
On the CFA not in fact being what 6F describes, in at least two ways, one of which you argue can never be rectified. Doesn’t that suggest that it ought to be repealed? If the government is interfering to get this EBA though, why can’t they interfere to correct the legislation at the same time. (Yes I know you’ll probably complain that you can’t correct legislation because it’s correct by definition! I think that’s nonsense. One of the roles of Parliament is to modify legislation to optimise public values. How about another example. There are lots of crazy laws on the books. I have seen it suggested – no time to check – that in law in some jurisdictions, only licensed electricians are permitted to change light bulbs. What’s the correct course of action? Charge and prosecute offenders? Ignore the law? Repeal it? Most people argue for ignore. I argue for repeal. I suspect you’d argue for charge and prosecute. Yeah I know this is probably a tired old first year law student debate … but it seems relevant here.)
Of course, politically, they can’t repeal 6F, because they know the Liberals wield the public esteem towards volunteers as a giant political stick, which is why they passed the amendment to bring in 6F in the first place. This is why I think ultimately we might have to abandon integration as a lost cause.
The second point to consider, is if 6F is already wildly inaccurate, bringing this EBA doesn’t do anything to alter the status of the CFA with respect to 6F. It’s already failing its obligations under 6F. Signing the EBA won’t make it violate 6F, because it’s already violating it. If I’m speeding in a car, do I get a fine for every metre I travel above the speed limit or do I just get the one fine? Do I save anything by not driving that second metre? Would the Board save anything by refusing to sign the EBA?
If the government didn’t repeal 6F, and did abandon this EBA, shouldn’t it act to at least bring CFA in line with 6F in terms of the “support” role of staff? This would mean moving away from, not towards, a modern urban fire service. It would mean almost certainly longer response times and less consistent training levels in responding crews. Would the public support that?
Moving all staff out of the CFA would be one way to fix one of the ways in which 6F does not describe the CFA. I’m not convinced that all the positives you mention (and others I can think of – simply in the collaboration between volunteers and staff, and staff from different agencies, a social value is to be found) would all necessarily be lost. Surge capacity could be maintained by having suburban CFA depots that do not respond to local calls. I don’t think responding to urban fire calls offers much in the way of experience that enhances the capacity of volunteers to respond in surge capacity to bushfires. And they shouldn’t need it for morale – does the Army Reserve put on wars to keep everyone’s spirits up, or let them volunteer as the Police SWAT team? Are they in it for the public good or are they in it for entertainment value? But, if you wanted them to have that experience, they could – they could still be paged when the paid urban fire service gets a call and they could keep doing the same things they do now. They could even still receive training from paid urban fire service staff if they wished. They could even be co-located with the urban fire service, in the same way that Ambulance Victoria crews are co-located with MFB. Although, this might raise the difficulty that the move of all staff to another organisation was seen in cynical terms as nothing more than an administrative change designed to subordinate volunteers to staff. Greater actual separation might be needed to protect their pride around being masters of their own empire.
One more point in response to your comments. You have agreed that problems only arise inasmuch as the role of volunteers is substantially altered, but you won’t accept that a change that only affects members at 34 out of ~1200 brigades is not a substantial change overall. Surely that’s debatable. I suppose those pigs in mud would revel in a long argument about what “substantial” means!
One more thought about 7 on the fireground. What if the EBA said something like “CFA will ensure that 7 firefighters are dispatched within 90 seconds of being advised of an emergency”?
Russell, your suspicion that I’d ‘argue for charge and prosecute’ does me a disservice.
But first, some theory: There is a distinction between the Parliament and the Government. The Parliament is everyone elected to the legislature and they can make the laws. The Government is the member who has the confidence of the lower house (the Premier) and people appointed as Ministers. We talk about the separation of powers between the legislature (the Parliament) and the executive (the Government). Most of the time it’s not much of a distinction because in our system the executive officers (Ministers) are also members of the Parliament. What that means is that if a government wants to change legislation they usually have the numbers in Parliament to make that change, but as Julia Gillard and Malcolm Turnbull have both discovered, if the government doesn’t have a clear majority in the parliament, the distinction becomes very relevant. So with that legal theory lesson behind us…
The government, assuming they have the numbers in parliament, could amend the Act by repealing s 6F. Legislation is not set in stone – it’s made by Parliament it can be changed by Parliament. I certainly do not think ‘you can’t correct legislation because it’s correct by definition!’ There’s lots of legislation that’s complete crap – see for example Excluding good Samaritan protection for the intoxicated (March 17, 2016) and my discussion on the Civil Law (Wrongs) Act 2002 (ACT) s 5(2)(b) – but is not, by any means, the only piece of silly, unworkable or poorly drafted legislation.
One of the roles of Parliament is, indeed to change legislation – whether it’s to ‘optimise public values’, to ‘reflect public opinion’ or to ‘advance the public interest’ would be an issue of political science. In many cases judges ask Parliaments to amend legislation because the court’s can’t work out what the Act means or how it’s to be applied. But none of that compels the legislature to act. Even so there is no doubt, whatever the motivation it is indeed the Parliament’s job to amend legislation as it sees fit.
Government’s on the other hand, are required to give effect to the Parliament’s legislation. As I say if they have the numbers and the motivation they can change it, but if they can’t they have to deal with the Act that they have.
Charge and prosecute is only relevant if the Act in question creates a criminal offence – crime is only one area of law. Sections 6F-6I say nothing about a crime so criminal prosecution is not an option. Ignore is not an option – we live (I hope) in a society governed by the rule of law. Individuals may chose to ignore a law that applies to them and take their chances, but governments and more important public servants are not free to ignore the laws that they are required to apply, because if they did we would not have the rule of law but rule by executive officer that would be both secret and without challenge. So my answer is that the government (including the CFA and the Minister) have to apply the law set by Parliament until Parliament choses to change it. How do you do that? That’s the process we’re seeing. It’s a matter of politics. People with an interest lobby their local members to persuade him or her, and ultimately the Parliament, that change is or is not required. If you carry the numbers the law is changed, if you can’t persuade enough MPs, run for election and see if you can carry the electorate. The protests on the steps of Parliament are an example of an interested group expressing their views in this case no doubt to persuade MPs not to change s 6F.
I’m sure that’s right. Daniel Andrews is a Labour MP. It would seem that Labour does not have a majority in the Legislative Council (upper house). They have a two seat majority in the Legislative Assembly (lower house) (see http://www.abc.net.au/news/vic-election-2014/results/). That’s a pretty fine political balance and I would agree that there is probably a very strong public confidence in the CFA volunteers. That is clear in this current debate where there is discussion that the Andrew’s governments support for the UFU and the EB may cost the labour party seats in the 2016 Federal Election (Michael Gordon, ‘Election 2016: How Dan Andrews is hurting Bill Shorten’, The Age (Online) (June 24, 2016) ) and why Malcolm Turnbull is promoting his actions as supporting the volunteers’ (Matthew Knott, Richard Willingham, ‘‘Assault on the Australian spirit’: Malcolm Turnbull wades into CFA dispute’ Sydney Morning Herald (Online) (June 24, 2016). No doubt it also feeds well into anti-union attitudes. So you’re probably right ‘politically, they can’t repeal 6F’ so the CFA has to live with it. That may indeed mean you have to ‘abandon integration as a lost cause’.
I suppose that may well be the Premier’s attitude hence his decision to sack the Board and appoint a new one with instructions to sign the EB. Sections 6I-6F don’t provide any remedy – there would be remedies under administrative law to try to compel compliance with the Act but as we’ve discussed, it really is open to interpretation what constitutes ‘integration’ and agencies can’t ignore their statute, but achieving objectives takes time so a mere conclusion that they haven’t got there doesn’t mean they aren’t trying. I suspect if the EB is ultimately signed a person like me can say the objective of s 6F has not been achieved, but that doesn’t make the EB void.
That would not be an unreasonable interpretation. The Country Fire Authority is established ‘For the more effective control of the prevention and suppression of fires in the country area of Victoria …’ (s 6). Are the areas that fall within the responsibility of the CFA really ‘country Victoria’? As the Royal Commission said ‘The question of whether the CFA integrated model remains suitable in an urban environment (including in larger regional cities) requires continuing review…’ What the public would accept is not a matter for me, but their elected representatives.
No doubt. But whether it’s a change, or the status quo, doesn’t answer the question of whether it’s inconsistent with the Act. Just whether it creates, or continues, an inconsistency.
That would indeed resolve the issue that I see with respect to cl 83.5
Thanks Michael. I apologise if I offended you re: ‘charge and prosecute’. It was not my intention. I thought I was pre-empting what you’d actually say, because the way I read your initial post is very much along the lines of: the law says this, end of story. Not: the law says this, but perhaps the law is wrong and ought to be amended.
Re “Charge and prosecute is only relevant if the Act in question creates a criminal offence” – well yes, but the example I was using was an offence (unlicensed light bulb changing). The equivalent here would be that CFA should act to meet its legislative obligation under 6F. It seems we are on the same page with that, and potentially, on the same page that the only way for them to do that might be to confine themselves to country areas and all but abandon integration.
By the way, when I said abandon integration, I now realise I wasn’t clear what I meant. Just in case I gave the wrong impression, I didn’t mean adopt a two-tier system with career firefighters in genuinely subordinate roles. I meant moving all career firefighters out of the CFA to another organisation. The “supported by employees” would refer to non-operational staff. (Even then you’d have a problem with employed senior officers – the Chief Fire Officer etc. I’m not sure the Chief could be seen as having a “supporting” role given the powers given to the Chief under the Act.)
It seems to me getting back to my comments above about the impression your post gives. Wouldn’t your post be more reflective of your position if you pointed out in the post what you have mentioned in the comments? Namely-
– The ways in which the EBA is potentially contrary to the Act relate mainly to a Section of the Act (6F) to which the actual structure and operation of the CFA is already contrary.
– 6F may actually be self-contradictory depending on what “integrated” means
– If 6F cannot be repealed then the only way to remedy this inconsistency may to be abandon integration
– Some of the ways in which the EBA is potentially contrary to the Act could be remedied by simple changes in wording that would not appreciably effect the practical application of the EBA (e.g. the 7otfg wording we discussed)
– The Act is “really is open to interpretation” and “if the EB is ultimately signed a person like me can say the objective of s 6F has not been achieved, but that doesn’t make the EB void”
The last point is really important. I know you don’t shy away from it – you also said “Whenever someone says words to the effect of ‘I have a QC’s opinion that I’m right’ you know the other side can equally get a QC’s opinion ot express the contrary view”. You’re not a QC but people on the anti-UFU side are linking to your post in support of their position, as an appeal to authority, much as they appeal to Jack Rush QC. I don’t think this is reasonable given my last dot point above.
It’s OK, you didn’t really offend me I just like to think I’m more complex. As I said, I think in response to you, if you move ‘all career firefighters out of the CFA to another organisation’ you’re really moving to a NSW model with paid firefighters (full and part time) in NSWF&R and volunteers in the NSWRFS. As for your 1st dot point, I’m not sure that ‘ the actual structure and operation of the CFA is already contrary’ to s 6F. We’ve discussed voluntary organisation and why I don’t like that term or think it’s appropriate, but one can infer that what the Parliament meant is that the CFA service is provided ‘first and formost’ by volunteers. As for your 3rd dot point, ‘If 6F cannot be repealed then the only way to remedy this inconsistency may to be abandon integration’ – if s 6F can’t be repealed the CFA also can’t abandon integration as that is part of 6F and the Volunteer charter. With respect to your fourth point, in my original post I think I made that point when I said:
That is cl cl 83.5 could say:
… the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.
On the same point I’m not sure I’d be confident that changes in wording would or would not ‘appreciably effect the practical application of the EBA’. It’s a bit like the discussion on ‘substantial’ –
I would probably agree with you, remembering that my analysis has been limited to only three of the hundreds of clauses that:
– The ways in which the EBA is potentially contrary to the Act relate mainly to s 6F of the Act;
– 6F may actually be self-contradictory depending on what “integrated” means;
– Some of the ways in which the EBA is potentially contrary to the Act could be remedied by simple changes in wording; and
– The Act is “really is open to interpretation” and “if the EB is ultimately signed a person like me can say the objective of s 6F has not been achieved, but that doesn’t make the EB void”
On 6F not describing the CFA as it is, it being not really a “voluntary organisation” was not your only complaint. You also agreed that the current arrangement does not subordinate staff to volunteers as 6F requires. For example, you wrote “It would seem to me that if you took s 6F to its literal conclusion the paid firefighters would be like full time soldiers in the army reserve… That’s clearly not what CFA paid firefighters are doing. ”
You say now “one can infer that what the Parliament meant is that the CFA service is provided ‘first and formost’ by volunteers” but this is quite different to the wording, and in my view this inference is not consistent with the phrase “supported by employees”, which suggests a subordinate role. Otherwise, it would use a word like “supplemented” rather than “supported”. In any case, if you are intending to suggest now that 6F is really about who does the lion’s share of work (volunteers or staff) and not about subordination (even though you agreed earlier: “I see your point and I think the arguments you make in this latest post are quite compelling”) , then I have to say I don’t think that claim is true on a variety of metrics. I don’t have the stats to hand and they are hard to find (indeed the UFU have argued that the CFA deliberately obfuscates performance statistics to hide the public safety downfalls of full or part-volunteer response – link below). But I think you’ll find that a large proportion of CFA calls are attended by career firefighters.
On “if s 6F can’t be repealed the CFA also can’t abandon integration” – well they can. 6F doesn’t spell out what integration is. As I said, “supported by employees in a fully integrated manner” could simply refer to being supported by staff other than on-station firefighters: corporate staff, mechanical services, clerical support, etc. When I say “abandon integration” I’m talking about the integration of CFA career firefighters in CFA fire stations. Again, you seem to be going back on something you already agreed to: “So you’re probably right ‘politically, they can’t repeal 6F’ so the CFA has to live with it. That may indeed mean you have to ‘abandon integration as a lost cause’.”
On your proposed “the CFA will conduct an extensive range of preventative and preparedness programs and meet its duty of care by ensuring a minimum of seven firefighters to fireground incidents are dispatched before commencement of safe firefighting operations.” This would meet its duty of care unless it stipulates a maximum permissible response time and stipulates minimum qualification levels for those firefighters. Once those are in place, it would amount to the same thing, because the only way the CFA can “ensure” either is to respond career firefighters on shift at a fire station. If you still want to quibble about the word “dispatch”, then let’s change that to mean something whereby it is guaranteed that those qualified people will be on the road in a fire truck in under a certain maximum time. (90 seconds is currently the requirement for career staff in the CFA.)
Link to a submission to the Fire Services Review which highlights strong concerns around service delivery standards and attempts hide the facts: https://myviews.justice.vic.gov.au/application/files/5514/5808/1832/Attachment_-_UFU_Submission_to_FSR_-_WITNESS_STATEMENT_1_-_GEOFFREY_GORDON_BARKER.PDF
You’re right trying to make sense of s 6F is difficult, if not impossible, but one has to have some interpretation that gives effect to the words. It has to mean something. It may mean what you say so I suppose someone could try for an injunction to say the CFA can’t employ firefighters or that volunteers shall not report to any paid staff member or the like. A court would be unlikely to enter into that debate mostly because giving effect to s 6F is a matter where the CFA will have a wide discretion. So I can see that it would be consistent for the CFA to have ‘paid’ stations and ‘volunteer’ stations provided they could all work together, so a paid crew might be backed up with an appropriately qualified volunteer crew etc. However they define it, they can’t actually abandon the concept because s 6F is there. The CFA has to have some concept of what they understand it to mean and then try to achieve that objective. I still think that anything that talks of operational response but distinguishes between paid and volunteer firefighters on the basis of their employment status (rather than say qualifications) is not being consistent with s 6F.
I think you mean ‘a minimum of seven firefighters’ ‘would NOT meet its duty of care unless it stipulates a maximum permissible response time and stipulates minimum qualification levels for those firefighters’. That might be true but I’m not commenting (or trying not to comment) on whether it’s actually a good idea. If it said ‘a minimum of seven firefighters’ then it avoids my objection that its inconsistent with s 6F and that’s all I’m trying to address. It it provides for response time or qualifications I don’t think that’s inconsistent with the Act, but it’s not necessaryto avoid the inconsistency so I don’t want to enter that operational issue.
I like this comment the best:
“The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations is not altered by this Agreement.”
So what about all the Volunteer stations in urban areas that are supported by integrated brigades, who normally attend structure & non-structure fires and not bushfires. This comment implies that it does in fact impact on volunteers.
In an earlier comment, Russell Edwards said
My response was:
Your comment is also pertinent to that point. The EB as drafted may have little impact on most of the CFA’s volunteers, but ‘most’ and ‘all’ are not the same.