Jacqui Lambie (Tasmania, Independent) Share this | Hansard source

I rise to contribute to the debate on the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016. With this legislation, I will vote using the precautionary principle. I will vote to protect the safety of all firefighters, both professional and volunteer, and that is why I will oppose this government legislation.

But I am not just opposing it. I cannot believe it has actually made its way up here to the Senate. This is a schoolyard fight that should have been left in the hands of the Victorian government. That is where it should have stayed. It should have been worked out there. I cannot believe how it has reached this level, how it is sitting here in the Senate and how we are now talking about this instead of worrying about our age pensioners, our veterans and our kids out there paying for their university degrees. Honestly! The Victorian government can actually hold its head in shame; I will give it that much. It should have been figured out.

This is not a decision I have come to easily or quickly. This decision is one I have certainly lost sleep over. I have met and listened to many different stakeholders—not just on one or two occasions but sometimes on three or four occasions—and I have come to the view that if we are to have respect for our emergency service volunteers and give them the best chance of returning home to their families after they have served their communities in dangerous situations then I must vote to oppose this government legislation. For most Tasmanians—indeed, for most Australians—the issues surrounding the presentation of this legislation are confusing. However, the facts are clear. I have asked the Law Council of Australia to describe the situation. Essentially, they have said to me that during the election campaign the federal government stated that it would consider amending the Commonwealth Fair Work Act 2009 in a way that would affect the capacity of the proposed new Victorian Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2016 to be made. The federal government indicated that their proposed amendments would seek to support the work of volunteers by preventing a new enterprise agreement replacing the CFA UFU Operational Staff Enterprise Agreement 2010.

I acknowledge that this is a highly charged debate. Volunteer Fire Brigades Victoria, the VFBA, and the former CFA board oppose the proposed EA—and therefore support this legislation—on the grounds that it would undermine the role and independence of volunteers and be discriminatory. The UFU supports the proposed enterprise agreement—and therefore opposes this federal legislation—on the basis that it would enhance security and safety for emergency service workers. As I indicated earlier, I asked for legal advice from the Law Council of Australia. In this case, they have sat on the fence and said:

The Law Council considers that wherever possible, parties to a civil dispute, should act in good faith and engage in appropriate dispute resolution processes to resolve disputes. The CFA dispute appears to be one where reasonable minds may differ.

Clearly a resolution has not been reached with this dispute between professional and volunteer fire fighters in Victoria, or else this legislation would not be necessary. Because of that, as I have already said, this is a very sad day. Both groups of people—professional and volunteer fire fighters—are fine, courageous, reasonable groups of Australians but, as the Law Council indicates, this dispute appears to be one where reasonable minds may, and have, differed. The Law Council also makes another important observation:

In any proposal to amend the Act, it will be essential for the Government to carefully ensure that it is acting within its power to create Constitutionally valid legislation. This is because there may be an argument, depending on the nature of the amendment, that instructing a State Government agency on how to manage volunteers, would overstep constitutional limits.

During this debate the government will not be able to give a fair guarantee that with this legislation they have not overstepped their constitutional limits.

I understand that there are three contentious clauses in the proposed EA which this legislation attempts to counter: clause 36.4, allowing paid employees greater operational and management control of the CFA; clause 83.5, a minimum of seven paid firefighters to be dispatched at a scene applying to 31 stations out of the 1,200; and clause 90.4, prioritisation of the health and safety of an employee covered by the EA, including that the CFA and UFU must agree on clothing, equipment, technology, station wear and appliances. It is a shame that this dispute is about, maybe, half a dozen paragraphs—it really is. The interpretation is also shameful—you have both sides interpreting it the way they want to. That is what it comes down to. It is a really sad day when this issue has had to come all the way into the Senate instead of being worked out outside this parliament.

A key legal decision already made which significantly affects the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016 was made on 8 January 2015 in a Federal Court case—United Firefighters' Union of Australia v Country Fire Authority. According to a Law Council Report, the full Federal Court found:

Under established principles, Federal industrial agreements or awards which purport to regulate the recruitment and redundancy of State public sector employees are legally invalid. This is because there is an implied limitation in the Constitution on the power of the Federal government to make laws which discriminate between States or effectively curtail a State's capacity to function as a government. This limitation is known as the 'Melbourne Corporation' principle.

It would appear that the Federal Court's finding and its Melbourne Corporation principle and limitation raises serious doubts regarding the constitutional legality of this legislation. This legislation creates a lawyers' fest and a black hole to throw millions of dollars of taxpayers' money into, on legal fees and court costs. Should this legislation pass, there still would not be any clarity for our professional or volunteer firefighters.

The place for resolving this dispute is not in this parliament with this questionable legislation, which is more than likely to be challenged in the courts; it is at the Victorian state negotiating table, where the volunteer firefighters and the professional firefighters must reach an agreement. In addition to this point, it is important to note that a Supreme Court ruling, yet to be made, will also affect this matter. Mr Rob Mitchell, a Labor MP, raised this is his speech on the second reading in the other place. He said:

There is a Supreme Court action pending in Victoria, where legal ruling on the issues that this legislation is apparently dealing with will be handed down in a few weeks. Again, why the rush? Why not use the outcome of the independent umpire, the court, to inform the legislative process? We might find that federal intervention is not required.

This legislation is fundamentally about volunteers and volunteerism, which are the building blocks of Australian Culture. Andrew Broad MP, member for Mallee in the other place, said:

Without politicising this, I want to say that both sides of parliament do value our volunteers. These are people who do not brand themselves as heroes.

However it is clear that volunteers have been politicised, when energy should have been put into reaching a negotiated agreement. Victorian Premier Daniel Andrews is equally to blame for this mess, as is Prime Minister Turnbull. I agree with Andrew Broad MP, when he said in the other place:

This should be dealt with in Victoria by a respectful Andrews government. It was such a political issue inside Mr Andrews' own parliament that he had to sack a minister. They then had to sack a board and put in one that is regarded by the membership, whether rightly or wrongly, as comprised of yes-men and yes-women.

There are both complex principles and big questions that should be answered in this debate about community volunteers. A key question is: do our governments, both state and federal, choose to exploit community-minded people or volunteers who work for free in essential or emergency services? Whenever this question is asked, the government and its supporters, in order to cover their tracks and deflect blame for the underfunding and under-resourcing of essential and emergency services, shoot the messenger. It is a classic response from a government caught out short-changing and abusing their essential and emergency services workforce. The usual response from a guilty politician is that the people asking the questions and exposing government dysfunction and incompetence are just attacking hardworking volunteers or workers. Well, no, it does not work like that. The only people attacking our volunteers are the politicians who allow those services to be run into the ground and become poorly managed and poorly resourced.

In this debate I have found that those who ask the hard questions about safety, staffing levels, up-to-date equipment and better procedures are painted as attacking volunteers in an attempt to deflect blame. This happened to me after I met recently with representatives of the Australian Paramedics Association Tasmania, who raised some urgent matters with me and about staffing and what they believed was the abuse or overuse of volunteers by the Liberal Tasmanian government. I would like the Minister for Employment, in her closing speech, to clarify what effect her government's legislation, which is targeted at Victorian emergency services volunteers, could have on emergency services volunteers in states other than Victoria. I have not received strong views from volunteer groups in Tasmania regarding this legislation; however, I know that Tasmania has a long and proud volunteer culture and groups like the ambos, the SES and the firefighters would like a clear explanation of whether and how this legislation is going to affect them.

I pay my respects to all our emergency services volunteers, who risk all to keep us safe. I recently wrote to the Tasmanian Premier in relation to our ambulance service, which relies on 500 registered volunteers:

It will become clear after reading these matters that not only are the lives of patients who require the services of Tasmanian paramedics at increased and unnecessary risk but the health and well-being of our paramedics are also being placed at risk due to being under-resourced at a time when the workload is increasing.

The main issues that were raised with me are as follows:

At the heart of the dispute between people who work for free, for the state government or as volunteers, and the professionals who make their living by providing a service are matters of management, resourcing and funding. As the resourcing and funding are reduced by governments, the quality of service delivery must decrease, despite the gallant efforts of our very own Australian volunteers. In Tasmania's case, the paramedics are speaking out because of a cut in funding. This is how one paramedic has summarised the situation to me:

I have had a quick look at the DHHS Annual Report 2014-15 for Ambulance Tasmania and I note the following:

It may also be time to consider calling again on the 'secret' Ambulance Tasmania report to be made public so all Tasmanians have the right to know what is going on with their Ambulance Service.

I have to say: if you think the firefighters and volunteers are having problems in Victoria then maybe you need to stick your nose into the situation in Tasmania and start questioning Will Hodgman about the ambulance service and the safety of our patients. How far is this legislation going to go?

In closing, with this legislation I will vote using the precautionary principle: I will vote to protect the safety of all firefighters, both professional and volunteer, and that is why I will oppose this government's legislation.