Membership of the VFBV and disciplinary proceedings

Today’s correspondent is interested in my opinion of the effect of s 100(1) of Country Fire Authority Act 1958 (the CFA Act).  That section says:

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

I’m told that:

The CFA appears to use this section to effectively hamstring VFBV from providing advocacy for volunteers with disciplinary matters. My lay view, is that the section prohibits the VFBV from raising an issue with the authority but should not prohibit them advocating or assisting a volunteer in their defence of any disciplinary matter brought against them. what do you think?

I infer from the question that if someone from the VFBV is seeking to appear for, or as a support person for, someone going through that process the CFA says they cannot as that is not expressly provided for in s 100?  Is that the gist of the issue?

Volunteer Fire Brigades Victoria (VFBV) is not created or established by the CFA Act. According to the VFBV Constitution, available from their website they are an association incorporated under the Associations Incorporation Act 1981 (Vic) (now repealed and replaced by the Associations Incorporation Reform Act 2012 (Vic) but nothing turns on that as the transitional provisions ensure that it retains its incorporated status and the constitution retains its status as the constitution).

To digress for a minute, the CFA Act s 100(2) says ‘A person is not eligible to become an officer or official of Volunteer Fire Brigades Victoria Incorporated unless he or she is a registered volunteer.’  It is unusual for the Parliament to dictate membership qualifications for a non-government legal entity. That the Parliament knows that it is not the author of the VFBV constitution is made clear by s 100(6) which says ‘This section applies despite anything to the contrary in the Associations Incorporation Reform Act 2012 or the rules or constitution of Volunteer Fire Brigades Victoria Incorporated’. It is the case that the Parliament has imposed a qualification requirement on the VFBV executive even though they have not established the organisation.  That is unusual, but not beyond Parliament’s power.

To return to the VFBV Constitution, there is a Statement of Purpose attached to the Constitution. There is no reference to the statement of purpose in the Constitution, that is there is not clause that says words to the effect of ‘The purpose of the Association is set out in Schedule 1’ or the like. Despite that drafting anomaly nothing turns on that for this comment.  The purposes of the VBFV are:

An interesting, and with respect surprising (at least to me) aspect of the Constitution, is that it is the brigades and groups established by the CFA that are members of VFBV, not individual volunteer firefighters (see VFBV Constitution cl 3.1; see also [1] of the Statement of Purpose). This is consistent with provisions that say the Board is made up of 8 members appointed by the Brigades (cl 4.2) not by, say an election where firefighters get to vote. District councils are (cl 8.6), inter alia, to ‘Provide a forum for affiliated brigades to express volunteer concerns/views’ and to ‘Help brigades resolve matters of concern at a local level’. There is no process in the constitution for individual firefighters to raise issues other than via their brigade delegates; and no provision in the constitution for individuals to seek or receive assistance.

The VFBV does not represent firefighters, it represents brigades. How the brigade members give instructions to the VFBV or direct their brigade on what matters to raise is not spelled out in the Constitution and is presumably a matter for brigades to determine according to their local circumstances. But given Brigades are established by, and subject to direction from the CFA there may be cases where a firefighter’s interests are not the same as the ‘brigades’.

I note that the Rural Fire Brigades Association Queensland (RFBAQ), like the VFBV has ‘all registered Rural Fire Brigades in Queensland’ as members (RFBAQ Constitution cl 5). The NSW Rural Fires Association and the Country Fire Service Volunteers Association in South Australia, on the other hand, have individual firefighters as members (RFSA Constitution cl 2; CFSVA Constitution cl 5.1).

Discussion

To return to the question, s 100 of the CFA sets out the purpose of the VFBV in relation to the Act.  To repeat the section, it says (emphasis added):

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

Issues of disciplinary proceedings are dealt with in the Country Fire Authority Regulations 2014 (Vic).  As would be expected there are provisions about how complaints are received, investigated and finalised. Where a firefighter has been charged with a disciplinary offence the matter is to be determined at a hearing. At that hearing (r 18):

… the person charged may be—

(a) self-represented; or

(b) represented by another person.

Where a person is facing any of life’s troubles, including disciplinary hearings in the CFA he or she can and should be able to turn to any person they like for support, advice and counsel. A CFA volunteer may turn to a person who is an officer in the VFBV.

A person may want to write to the CFA or a relevant CFA officer to make submissions to try and stop a charge being presented or to draw to the CFA concerns that they may have of that process. They can and should be able to write that letter themselves, write it with assistance, or ask a trusted person, who may nor may not be an officer of the VFBV to write it for them.

When it comes to a formal hearing they can and should be able to be assisted, or represented by a person who may or may not be an officer of the VFBV.

The critical issue in all of these paragraphs is that the person’s status as an officer of the VFBV is incidental or even irrelevant. As soon as the person says “I’m making this submission as President/Board Member/Other officer of or on behalf of the VFBV” then I think the issue changes.

First s 100(1) says that VFBV may ‘bring to the notice of the Authority all matters affecting … [the] welfare and efficiency’ of ‘members of brigades’. If one is arguing that a member is not guilty of an offence charged, or that the penalty should be reduced due to mitigating factors, then the VFBV is bringing matters to the notice of the authority that affect the welfare and efficiency of that member but addressing the authority on matters of discipline is specifically excluded. Even if the VFBV wants to address disciplinary issues more broadly – eg the way the CFA is managing discipline in this area, or across Victoria, that is also excluded from the VFBV mandate.

On top of that there is nothing in the purposes of the VFBV to say that advocating for individuals is its role. As noted the members of the VFBV are brigades, not the individual firefighters. With no stated purpose and noting that the member subject to disciplinary proceedings is not a member of the VFBV, then it would appear to me that the VFBV acting as an advocate for a firefighter would be ultra vires (ie beyond power).

Conclusion

Reading both the VFBV Constitution and s 100 it appears that the VFBV is there to represent the interests of volunteers at a very broad level. It takes volunteer interests as communicated to it via brigades to the CFA. Section 100 specifically excludes issues of discipline from the VFBV mandate and the constitution and purposes in no way give the VFBV a role in advocating for individual firefighters.

I would agree that taken together, cl 100 of the Act along with the VFBV constitution makes it clear that it is not the role or purpose of the VFBV to provide ‘advocacy for volunteers with disciplinary matters’. To do so would be ultra vires and could put the VFBV in conflict with its members ie the Brigades, including the brigade of which the person is a member.

If a person who happens to be an officer with the VFBV wants to assist a friend and colleague that is another matter, but it would appear to me to be inappropriate to do so with VFBV resources or in the name of the VFBV.