Wednesday, 14 September 2016
Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016; Second Reading
I rise to speak on the so-called Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016. This is a bill giving effect to the government's opportunistic intervention in a state issue. In the middle of an election campaign, a campaign in which the Prime Minister performed so badly, the government sought to involve itself in what was a state matter. The Labor Party has said all along that whatever differences there are between the volunteers and the CFA, the United Firefighters Union or any parties that are fighting fires in Victoria, we would like to see leadership and we would like to see an effort to reconcile differences not inflame tensions.
The Prime Minister, in his second reading speech, said this bill will protect Australia's emergency services. But it is unclear whether this is true. The Department of Employment, who I thank for their briefing, has advised that: 'This bill only applies to emergency services in Victoria, the Northern Territory and the Australian Capital Territory, and the Commonwealth has no constitutional power to intervene in respect of emergency services that currently exist in other states. However, it should be noted that, if any emergency services were deemed to be corporations, they could be captured and, in a recent court case, the Country Fire Authority was found to be a trading corporation. It is entirely unclear whether any other fire authorities or other emergency management bodies in Australia are captured by this legislation, and this will only be able to be determined through litigation.'
The government almost seems to have accepted this uncertainty, giving itself power to both exclude and include bodies to be captured by the legislation. No matter how broad or narrow the application of this bill turns out to be, it is clear that it is the government's response to an industrial dispute between Victoria's Country Fire authority and the CFA employees represented by the United Firefighters Union.
For members of the parliament who are not from Victoria, the country fire authority in Victoria is a community based volunteer organisation protecting communities from the outer suburbs of Melbourne to the most remote parts of the state. This is confirmed in the CFA Act, which states:
… 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.
This is reflected in the membership of the CFA. As at the end of June 2015, the CFA had around 57,000 volunteers, 35,000 of whom were operational, and around 1,800 permanent staff, of whom 970 were operational. Volunteer numbers have been relatively stable over the last decade, fluctuating between 55,000 and 59,000 volunteers. The number of permanent staff has increased by about 50 per cent in that period—from 1,300 to 1,900. According to the CFA, this has been because the rapid growth in Melbourne's outer suburbs and regional Victoria is putting more pressure on CFA to respond to the growing number of fires and emergency incidents.
The statutory objective of the CFA in performing its functions in exercising its powers is to:
(a) contribute to a whole of sector approach to emergency management;
(b) promote a culture within the emergency management sector of community focus, interoperability and public value.
These functions are to be exercised with regard to the commitment and principles set out in the Volunteer Charter. It is also the CFA's responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members. The interests of the volunteers are represented by Volunteer Fire Brigades Victoria, and the CFA is required under the state act to recognise, value, respect and promote the contribution of volunteer officers and members to the wellbeing and safety of the community and to consult with Volunteer Fire Brigades Victoria on behalf of volunteer officers and members on any matter that might reasonably be expected to affect them.
In respect of its paid employees, the CFA may appoint, transfer, suspend or remove such officers and employees as it deems necessary and is required to pay wages consistent with any agreement or award and provide for leave. While there is statutory obligation to consult with the volunteers about matters that affect them, there is no obligation on the CFA to consult with its paid workforce. This can only be achieved through consultation requirements in the enterprise agreement between the United Firefighters Union, on behalf of its members, and the CFA.
It is against this backdrop that we have seen tensions arise between Volunteer Fire Brigades Victoria and the United Firefighters Union. These tensions have resulted in Volunteer Fire Brigades Victoria bringing an action in the Supreme Court of Victoria. This case is to commence on 3 October and is expected to take 10 days. The listing of this matter was expedited and the opposition is hopeful that the court will determine the matter quickly as well. This case could determine whether the proposed agreement between the CFA in the paid firefighters is consistent with the CFA's obligations under the CFA Act. As the court case makes clear, this is a dispute which is not between parties to an enterprise agreement under the Fair Work Act but between Volunteer Fire Brigades Victoria and the CFA.
Labor's view is that this has always been, and remains, a state issue. It is our firm belief that, as this may be resolved in the Supreme Court of Victoria, this federal parliament should stay out of the way—at very least, in exercise of the precautionary principle. The government has not convinced Labor that this bill is warranted. As I said from the outset, we believe it is an ill-motivated government that is acting in this manner, dragging this matter into the parliament in Canberra when it should be resolved between the parties within Victoria.
But I think one of the most telling examples of the insincerity of the government is the recent interview between David Speers and the Minister for Employment, who, after being asked the question 14 times and in many different ways, was unable to answer why and in what way the agreement would affect volunteers. David Speers asked Minister Cash how the agreement—if approved by the Fair Work Commission—would affect the volunteers, and on 14 occasions the minister was incapable of providing any answer as to how the agreement would have an adverse impact on the volunteers. If the Minister for Employment cannot explain the impact of the proposed agreement upon volunteers, then why should this parliament seriously entertain the intentions of the government—when it cannot even prosecute its case? The fact is, the minister has been unable to explain the intention of this legislation, and she could not explain, when asked 14 times by David Speers, the impact of the agreement on volunteers. It begs the question, why are we dealing with this matter in this way when the minister is unable to explain the government's position?
I want to make one other point in relation to that interview and in relation to other comments made by the minister. The minister thought it was fitting to use Ash Wednesday as a metaphor for this dispute. As a Victorian, I am affronted by one of our most fatal state tragedies being used as a metaphor for an industrial dispute. I do not believe it is fitting, nor is it in the interests of the family members of the victims of Ash Wednesday to be using that metaphor, and I would ask the minister to desist. It is not the kind of language that a cabinet minister should be using in such a matter.
The opposition has grave concerns that this is just another example of the government deciding to overturn the decision of an independent tribunal it does not like. It did not like the decision of the Road Safety Remuneration Tribunal, so it abolished the tribunal. In this case, the government does not like the Fair Work Commission's recommended resolution of a longstanding dispute between the CFA and its paid firefighters, so it seeks to impose itself in this matter by legislating. Imagine if the government—or some future Labor government—were to legislate every time they were unhappy with an agreement reached between an employer and unions or its employees. It would create chaos within the workplace system. It would create chaos within workplaces across Australia. That is why there are grave concerns about this proposed legislation. It is also why the Police Federation of Australia have made submissions against the enactment of this legislation; why the Australian Nursing and Midwifery Federation are opposing this legislation as it currently stands; and why Ambulance Employees Australia Victoria have also made submissions against this proposed legislation.
In justifying intervening in the decision of the independent tribunal, the government has raised a number of concerns that they have about the substance of the proposed agreement between the CFA and the United Firefighters Union. The opposition has sought a Senate legislation committee inquiry to get the bottom of the government's claims in respect of the bill. The opposition will use this inquiry to examine whether the bill is warranted at all, or desirable, having regard to the safety of the community and the opportunity to resolve the concerns of the VFBV. The opposition is concerned that this bill will only serve to extend the conflict between the volunteers and the CFA.
If the government's legislation is passed before the agreement is submitted to the Fair Work Commission for approval—having been agreed between the CFA and its employees—then the Fair Work Commission must consider whether any term of the agreement is an 'objectionable emergency management term'. In doing so, the Fair Work Commission will hear from the CFA, the United Firefighters Union, any other employee bargaining representatives, and Volunteer Fire Brigades Victoria. As an aside, the Fair Work Commission already has an unlimited discretion to hear from organisations like Volunteer Fire Brigades Victoria in proceedings under section 590 of the Fair Work Act. It is of grave concern to the opposition that this government is preparing to throw one of the fundamental principles of enterprise bargaining out the window, in order to provide standing to a stranger. What precedent does this set, beyond this matter, to allow non-parties to request automatic standing in every step of an agreement-making process in order to intervene between the parties? Having heard from the parties, the Fair Work Commission of course could determine that a term of the agreement was not an 'objectionable emergency management term'.
For example, one of the terms the government considers would be objectionable under the legislation is a term related to cross-crewing. The Prime Minister claims that this clause requires union agreement, at integrated stations, to cross-crewing of fire trucks by volunteers and paid firefighters. However, the Fair Work Commission could conclude that this clause does not deal with volunteer and paid firefighters working together, and that it does not affect volunteers at all. The opposition is advised that this clause is part of the CFA's move to appliance-based staffing, and will prevent the problem of new appliances being introduced without the firefighters necessary to cover them. Our understanding of this clause is that it does not prevent new appliances being introduced which could be staffed by volunteers, and that it does not prevent volunteer and paid firefighters working together on existing appliances.
Another term the government considers that the Fair Work Commission could determine to be objectionable is a term providing that 'paid firefighters can only report to another paid firefighter, with the exception of the incident controller'. However, the Fair Work Commission could conclude that this term is entirely consistent with current operating procedures for fighting fires, that it does not change the relationship between volunteers and paid firefighters, and that the clause is intended to ensure that paid firefighters are not directed by paid pen-pushers with no operational experience. The opposition understands that what occurs now is that the crew leader of the first appliance attending a fire is the incident controller and any subsequent crews that arrive are directed by their own crew leaders, but that the crew leaders of those crews are directed by the incident controller. The incident controller can be a paid firefighter or a volunteer. The appliance could be crewed by volunteer or paid firefighters, or a combination of the two. The opposition has been advised that these arrangements are not changed by the proposed clause. In fact, the Fair Work Commission might determine that no term of the proposed agreement is an objectionable emergency management term given that clause 7A of the proposed agreement specifically provides:
The role of volunteers in fighting bush fires and maintaining community safety—