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Questions: Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016

Estimates & Committees
Lee Rhiannon 19 Oct 2016

Monday, 10 October 2016

Senator RHIANNON (New South Wales) (18:10): Minister, as you know, summer is around the corner. You have been going to a great deal of trouble for months now driving what is really a very divisive approach to emergency services. It is something that I find deeply troubling. I agree with you that our volunteers here are magnificent men and women, but so are our firefighters. Paid firefighters, like our volunteers, put their lives on the line. I find the language that you have been using deeply disturbing, and it further underlines how political what you are driving here is. The primary goal here is not public safety.

I think what is really necessary, now that we can get into the detail here, is that you point out the specific clauses in the agreement that are detrimental to volunteers. Can you name the clauses and what parts of the clauses are detrimental to volunteers. We need to get past the general statements and the rhetoric that there are some good people who fight fires—the implication being that there are some bad people who fight fires—and actually deal with public safety. You need to identify the actual clauses and where they are detrimental to volunteers.

Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (18:12): Senator Rhiannon, I understand that you may have left the chamber for a very short period of time. But during that short period of time that was the exact question that Senator Cameron asked me. I took Senator Cameron through some of the clauses that are of concern or have been highlighted as being of concern to the volunteers. I also highlighted to Senator Cameron that Volunteer Fire Brigades Victoria had done a comprehensive analysis of the proposed enterprise agreement and had gone through each clause, on a clause-by-clause basis, to highlight where they believe there was going to be a clause of concern.

If you like, I am more than happy to take you through the answer that I gave to Senator Cameron, if that would assist you. In particular, there are a number of clauses that are of particular concern and have been raised as being of concern for some months now—in fact, for some time—and they were certainly raised by the Volunteer Fire Brigades Victoria at the Senate hearing, which I understand you may have attended.

Again, I will not go through them in detail, because I think I have really put that on the record for Senator Cameron, but of concern were: clause 21, in relation to the extensive, consensus-based consultation process required under the agreement; clause 41, in which current CFA policies will be reviewed and only remade through a process where union consensus is required; clause 44, in terms of the minimum staffing levels, in particular, the prohibition on cross crewing of any appliances, unless agreed by parties; clause 35, which sets out that all employees covered by the agreement shall only report to operational employees under the agreement or at the rank of DCO or CO when responding to fire alarms or incidents under this agreement, except in certain cases as defined by the clause. Just very briefly, other clauses which have been raised as of concern: clause 15.1, dealing with brigade support programs; clause 16, dealing with volunteer support programs; clause 60, which mandates that peer support will only be drawn from paid firefighters.

One of the other clauses—I think it is almost a great shame that it has to be raised as a clause of concern to the volunteer firefighters—is set out in schedule 20 to the proposed agreement, and it proposes that the volunteer firefighters and the paid firefighters will now have to wear different uniforms, so they are identified differently. So, to anyone in this chamber who stands up and says there is nothing divisive about this agreement, I would say that that clause alone—whereby you want to now specifically identify who is a paid firefighter and who is a volunteer firefighter and deliberately put a wedge between them—is enough in itself.

 Senator Rhiannon, you may also be interested in this, and I am happy to read it out to the Senate: it is a letter dated 30 June 2016 from Peter Rau, Chief Officer of the Metropolitan Fire and Emergency Services Board. It was written to the Hon. James Merlino MP, the relevant minister. Mr Rau goes through in detail the impact that he says a number of these clauses have had on his own organisation and why it is dangerous for them to be carried on into the proposed agreement with the CFA. What he says is this:

"I write to you as Chief Officer of the Metropolitan Fire and Emergency Services Board (MFB)."

He goes on to talk about the agreement, and says:

"… I wish to raise with you my serious concerns regarding the negotiations with the United Firefighters Union (UFU).
I am aware of the terms of the enterprise agreement that the UFU has proposed to the CFA … in the context of its current bargaining. It is my understanding that the UFU expects any agreement negotiated with the CFA to be substantially reflected in the terms of a new agreement to apply to the MFB."

He then goes on to talk about the bargaining period:

"Throughout this bargaining period which commenced in April 2013, the MFB's position has been that its own current agreement seriously impedes the delivery of effective fire prevention and suppression services in Victoria. The fundamental concern relates to the requirements under the current agreement that the Chief Officer must consult and reach agreement with the UFU in relation to operational matters."

So the issues that have been raised by those in the CFA dispute are the issues that Mr Rau is talking about here. He continues:

"I am concerned that, far from improving the already very troubling position that exists under our current agreement, the proposed CFA provisions would further hinder my ability as Chief Officer to effectively fulfil my statutory responsibilities as you and the community expect.

As the Chief Officer, I have to respond quickly and decisively to emergency situations. I am also required to make strategic decisions to prepare for emergency situations. As the head of operations I need to make decisions unimpeded by provisions within an industrial instrument requiring agreement from a third party …"

Which is exactly what we see happening here. Mr Rau continues:

"The proposed CFA agreement would, if applied to the MFB, create even greater concerns."

He then goes on to say:

"I wish to draw your attention to some examples under the current MFB enterprise agreement that have led to—"
—what he terms—
"—unacceptable situations."

Senator Rhiannon, these are some of them:

"For over two years, the MFB was unable to deploy new advanced appliances because the UFU refused to agree to their deployment. This came to a head during a week-long heatwave when I needed these appliances to be deployed to meet the MFB's responsibilities …"

He needed the appliances to be deployed to meet the MFB's responsibilities, and he could not get consensus from the union. He continues:

"In this instance I had a direct request for support from Ambulance Victoria … Over a two day period consultation occurred with the union…"

Over a two-day period, in an emergency situation, consultation occurred with the union to resolve the matter. This is an emergency situation where someone needs to make a decision there and then. But because of a consultation clause in the agreement they are emasculated—they are unable to make a decision. But it gets worse. He then goes on to say:

"Due to the inability to reach agreement we sought the assistance of the Fair Work Commission (FWC) and as such, in the middle of the heatwave, two Deputy Chief Officers spent a further afternoon and evening at the FWC seeking a resolution to release these appliances into operations the following day, distracting us from critical operational activities."

Senator Rhiannon, it goes on and it goes on and it goes on. His conclusion is:

"The current Enterprise Agreement and its power of veto over my statutory responsibilities is unworkable and undermines community safety."

Senator Rhiannon, these are real life examples of what can occur when you utilise an enterprise agreement for purposes for which it was not intended. These are real life examples of where safety has been potentially put at risk because of the clauses that have been raised by the volunteer firefighters as being of concern.

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Senator RHIANNON (New South Wales) (20:01): Minister, senators have asked you tonight some very specific questions, asking you to provide details about what the clauses are that are detrimental to volunteers, and you keep giving the same answer—it is getting quite insulting actually—where you rely on telling us what an enterprise bargaining agreement is. It is just extraordinary that a minister is relying on such a simplistic way to avoid answering the question.

You have stated also within this, and Senator Cameron has commented on this and I have said previously that it is deeply insulting—you keep running this line, and are really pushing this wedge. You are the one pushing the wedge that you have some firefighters who are good, implying that there are some firefighters that are not good. That is so deeply damaging. At a time when we need to be rebuilding trust you are further damaging here tonight every time you get up and speak.

You are cherry picking quotes from documents where you can pick out pieces that you think back up your argument. Then what we are hearing from you when you get on to talking about the enterprise bargaining agreement is that it is about expanding the reach of the union into volunteer arrangements. And then you give us again that rave that you are just so fond of, making out that volunteers are so much better than the other firefighters. It is so damaging.

In the latest comment I noticed when you got onto talking about the EBA, you said that it was expanding the reach of unions into voluntary arrangements beyond what contemplated in the Fair Work Act.

Senator McKenzie: It is. It is. Have you read it, Senator Rhiannon?

Senator RHIANNON: This is where you do need to do your job, Minister, and your job at the moment in the committee stage, as you know, is answering the questions that are put to you.

Senator McKenzie: Tedious repetitions.

Senator RHIANNON: It is not good enough just to say, 'Well, we are going to disagree.' I acknowledge the interjections of the chair of the committee here. She has arrived and is now also hoping that she can get some promotion out of how she performs with this. But, Minister—

Senator Cameron: Not very well!

Senator RHIANNON: I am happy to acknowledge all of the interjections. Minister, there are some very simple, straightforward questions here. The Fair Work Commissioner, Julius Roe, stated in his final recommendations on the EBA:

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.

Minister, there it is: 'not altered by this Agreement'. It negates everything you have said. This is from the Fair Work Commissioner, Julius Roe. You, yourself, have just said to us that the Fair Work Commission is' 'the umpire'. So you need to answer this question, because if you cannot acknowledge that Julius Roe has said that it actually negates all the arguments that you have been trying to pull out of a hat by cherry picking quotes from different documents that are barely relevant to the debate that we are having here. If you cannot do that are you really then saying that you know better than a Fair Work Commissioner, or that you disagree with the Fair Work Commissioner—somebody that you have just told us is 'the umpire' in all this?

Also, we need to have some details. You have had questions from different senators tonight asking for clear details about the clauses. It is not good enough just to get up there and rattle off your usual comments. We are in committee. You should be identifying the clauses, quoting the bit that supports your argument and then explaining why it does. But you have failed time and time again. But here are some more opportunities.

There are these allegations around clothing and equipment. What we do know is that the UFU, the union, will be allowed consultation on these issues. There are dispute resolution offices if the parties do not agree. And what we also know is that time and time again benefits won by the UFU flow on to volunteers. So minister, do you acknowledge that is how the current system works? That it works in a cooperative way where you are seeing the benefits flow on—or are you going to still run the hard line that you are running about clothing?

Then there are these other allegations, that the career and volunteer crews cannot share trucks. Are you really going to continue that dishonest line? Volunteers and paid staff can share trucks. They do share trucks and they will continue to share trucks. We know that. We know that happens.

Then there is the allegation that paid staff can only report to paid staff. Again, that has been dealt with many times in this debate. Are you still going to run that line? Are you still going to deny the truth that volunteers can continue to be incident controllers, as occurs at present? The agreement clearly allows staff to report to incident controllers who are volunteers. Are you going to continue to deny that? This is where I again remind you, Minister—you have sat in this place long enough; you know what is supposed to happen in the committee stage— that this is the opportunity for senators to question ministers about the details of a bill. That is what you are failing to do.

And then there is one other area that you need to come in on because you paid a lot of attention to this tonight—that is, this issue of appliances and making out all these supposedly shocking things that the union has done in not allowing various appliances to be used. There is this allegation that no new appliances can be used without UFU approval. But you must know that the truth is that the process for volunteer procurement, including appliances, remains unchanged. That is why I will go back to the quote, because this is where you need to start your answer, Minister. This would be a way of short-circuiting it, if you could be truthful about what the Fair Work Commissioner Julius Roe has said. This is in his final recommendations on the EBA. He states:

"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 the this agreement."

Do you agree with that statement, Minister?

Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (20:08): Thank you, Senator Rhiannon, for those questions. Perhaps, though, the better way for you to have started your line of questioning and your comments in relation to this bill would have been by at least disclosing the relationship that United Firefighters Union has with the Australian Greens. I expect it is one of the reasons that you are obviously well and truly behind Peter Marshall and the United Firefighters Union.

Perhaps I could, for the benefit of those who are listening in—it does not appear to be too many tonight because we are not broadcasting—and for the Hansard, just make sure that people understand why you are standing there articulating the comments you have made on behalf of, quite literally, Peter Marshall and the United Firefighters Union. If I could just quote from an article in The Sydney Morning Herald from 21 June 2013—so we have a long history here. It is a long history, not a short one. It is a nice long history here. The article's title says 'Firefighters union backs Bandt'. Then there is a lovely photo—unfortunately the Senate cannot see this photo, but I will describe it for you—that says, 'Firefighters union head Peter Marshall says the union will back Greens candidate Adam Bandt'. There is a nice photo of Peter Marshall. The article then goes on to say:

The vocal firefighters union is backing Greens MP Adam Bandt for re-election at the September ballot, joining the National Tertiary Education Union in supporting the party's sole lower house member.

The United Firefighters Union supported Mr Bandt—

low and behold—

at the 2010 election when he first seized Melbourne from Labor's grasp.

UFU national secretary Peter Marshall - who is a member of the Australian Council of Trade Union executive - said Mr Bandt had been a loyal advocate of firefighters as well as—

oops, here we go—

being the union's lawyer for a decade.

So, Senator Rhiannon, perhaps before you made the comments that you made tonight, going in to back the United Firefighters Union—as you have every right to do, but at the expense of men and women sitting in the gallery tonight who have, for decades, put their lives on the line for the people of Victoria—you could have been honest and disclosed the relationship the Australian Greens has with Peter Marshall and the United Firefighters Union.

In relation to your comments on Commissioner Roe: throughout May 2016 Fair Work Commissioner Roe, who himself is a former Australian Manufacturing Workers' Union official, conducted a conciliation with the CFA and the union over the proposed enterprise agreement. CFA volunteers tried to be represented at these proceedings so that they could put their concerns on record—one might think that is completely reasonable given the nature of their concerns—however, Commissioner Roe determined that the volunteers did not have sufficient standing to be heard. At the end of these proceedings, Commissioner Roe issued a non-binding recommendation—non-binding, Senator Rhiannon—in which he expressed the view that the proposed agreement would only apply to paid professional firefighters and that it would not apply to volunteer firefighters or affect their role. Again, Senator Rhiannon, I reiterate: this was a non-binding recommendation.

You may be aware, Senator Rhiannon, that the former CFA board—they of course were the CFA board that stood up, articulated the concerns that they had with the clauses in the agreement—rejected the recommendation put forward by Commissioner Roe because it had no impact on and did not override the many specific clauses in the agreement that they had concerns with. The clauses that were of concern to the then CFA board, the CFA board that was sacked for articulating its concerns, are still in the agreement being proposed by the CFA—the CFA that is now there at the behest of Daniel Andrews, the government's CFA—and the United Firefighters Union, with which, as you know, the Greens have a very, very strong relationship.

You also mentioned, I think, clause 83.4, which went to the uniforms et cetera. Again, the concerns that the volunteers have is that the CFA and the United Firefighters Union must agree on all aspects of the following: at clause 83.4.1, 'articles of clothing'; at clause 83.4.2, 'equipment, including personal protective equipment'; and then it goes on to 'technology', 'station wear' and 'appliances'. Again, the very simple question is: why? Why does the agreement dictate that the CFA, who is responsible for the volunteers, has to come to an agreement with the union in relation to, for example, these items?

Senator Rhiannon, before the dinner break—I am not sure if you were in the chamber at the time—I read out a number of concerns that the Chief Officer of the Metropolitan Fire and Emergency Services Board, Peter Rau, had in relation to their requirement to consult with the union and get agreement. He had written to the relevant minister, James Merlino, and clearly stated, 'I'm drawing your attention to some examples under the current MFB enterprise agreement that have led to unacceptable situations,' and those unacceptable situations were because they had to consult with the union and the union had taken their time or not given their consent.

Senator Rhiannon, just like Senator Cameron and me, we are going to have to agree to disagree in relation to the impact of these clauses on the agreement. But one thing you said that I will pick up is that you talked about a wedge between the paid firefighters and the volunteer firefighters. The CFA Act in Victoria specifically provides that the volunteer firefighters are supported by the paid firefighters. Senator Rhiannon, I have not come across any volunteer firefighters who have an issue with paid firefighters. I can assure you that no volunteers have an issue with paid firefighters. They have no issues at all about the pay that the firefighters will be getting under the agreement. They want to continue, as they have done for decades, to work alongside the paid firefighters, to work in tandem and in a constructive manner with them. The only people putting a wedge, and a deliberate wedge, between the paid firefighters and the volunteer firefighters are Daniel Andrews, the Premier of Victoria, and Peter Marshall, the former boss of Adam Bandt, who is your member in the other place. They are the only people putting a wedge between the volunteers and the paid firefighters.

Senator RHIANNON (New South Wales) (20:18): Interesting comments, Minister. You are still using quite slippery language and avoiding answering the questions. You talk about disclosing one's background, but you do not come in here and tell us about your work with Freehills and how you pursued construction unions, which is not a dissimilar approach to what you are showing now. Again, your double standards show time and time again. You cannot get away from that very clear statement from Commissioner Julius Roe in his final recommendations in the EBA. Again, I remind you that you said that the Fair Work Commission is the independent umpire, and a recommendation accepted by the government, the CFA and the union is an agreement. You can come up with all the language that you might have used when you were a solicitor, but it is clear—

Senator Cameron interjecting—

Senator RHIANNON: I am very happy to acknowledge those comments. You were giving full backing to the Fair Work Commission until you were caught out with some very clear statements that do not suit your line of argument. It is, again, your inability to answer the question because, if you are answering the question, you are either agreeing with the very clear statements coming from the Fair Work Commission or you are acknowledging that you are wrong, so I guess it is not surprising that you come up with the slippery language. But, to move on, Minister, can you guarantee that no police service and no ambulance service will be affected by this bill?

Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (20:20): Senator Rhiannon, I can advise that police forces, ambulance services and hospitals, because hospitals have been raised, are not covered by the amendments and we have, as a government, no intention of covering them. Such bodies do not fall within the meaning of 'designated emergency management bodies' as set out in section 195A(4)(a)(i) of the amended Fair Work Act. Why? It is because they are neither firefighting nor state emergency services bodies. It also needs to be understood, in relation to the question that you have posed, that they would also need a precursor to basically come anywhere near falling within what this change to the Fair Work Act would do. The body that you are referring to would actually need to be covered by the Fair Work Act. The first precondition is the body needs to be covered by the Fair Work Act. The majority of states have not referred their workplace relations powers for the public sector, and, on that basis, they do not apply. As I said, the government has no intention of covering them.

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Senator RHIANNON (New South Wales) (21:07): Minister, will you provide the Senate with a copy of the regulations that will be made after the bill passes? If you are not going to do that tonight, when will you do it?

Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (21:07): Thank you, Senator Rhiannon. We would follow the normal process in relation to the making of any regulations.

Senator Rhiannon: Could you explain what you mean by that, please. The 'normal process' is different every time, and you know that, Minister.

The TEMPORARY CHAIR (Senator O'Sullivan): Senator Rhiannon, you will have to wait for the call. Senator Rhiannon.

Senator RHIANNON (New South Wales) (21:07): Minister, could you explain what you mean by 'normal process'. 'Normal process' is very different every time, so 'normal' is variable. Could you explain what you mean, please.

Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (21:07): At this stage there is no intention by the government to make a regulation. I am assuming you are saying that we would add additional bodies. I am assuming that is what you are going to. As I have made clear—I think it was in response to you or Senator Cameron—the government has no intention of bringing in any other bodies and therefore will not be making any regulations. In relation to the usual process that I was referring to, you would be aware that in any event, if a regulation is made, it is a disallowable instrument, and obviously it would be up to the Senate, in the normal course of business, as to whether it did or did not disallow the instrument. But I again go to the fact that the government has no intention of making regulations.

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