What if I told you the coalition began preparing to block the CFA EBA in 2011, by meddling with the CFA Act?
It’s true. One of the first acts of the Baillieu government was to introduce a bill pitched as valuing and respecting volunteers — the Country Fire Authority (Volunteer Charter) Amendment Bill 2011. It added a number of new sections to the CFA Act, and updated the Volunteer Charter. I didn’t think much of it at the time. At that time, I was a CFA volunteer. I knew we didn’t need smoke blown up our backsides. What we needed was more funding for equipment and training, not motherhood statements… but maybe it was a promising sign?
That wasn’t to be. The coalition government went on to slash $66M from the fire services and to block legislation lifting burden of proof for compensation for volunteer and career firefighters with cancers likely to have been caused by firefighting work.
Was the Bill just an empty gesture, designed to justify the coalition’s nebulous election commitments to support volunteers? It turns out that, no, the Bill served another purpose.
In fact, this Bill was a Trojan Horse. Encoded within it was enough justification for crafty QCs to mount a plausible argument against virtually any move by CFA career firefighters to secure their workplace rights and safety.
Enter Jack Rush QC. Rush provided legal counsel for 2009 Victorian Bushfires Royal Commission. Among its comprehensive recommendations was that a new role of Fire Commissioner be established, and among the responsibilities attached that role would be to continually review the boundaries of the Metropolitan Fire District, which determines the geographical jurisdictions of the Metropolitan Fire Brigade and the Country Fire Authority. The Brumby Government created the role (later adjusted to Emergency Services Commissioner) and appointed Craig Lapsley, but failed to give him the responsibility to adjust the Metropolitan Fire District. Had they done this, the present dispute might have been avoided. (I cannot find any reference in Hansard as to why this did not take place; presumably it boils down to the political sensitivity of the matter, mentioned in the Age article just linked.)
Fast forward to 2016, and who should appear in the coalition’s favourite propaganda outlet (the Herald Sun) but Jack Rush QC. Rush raised a number of complaints about the proposed CFA EBA, but at their core was Section 6F of the CFA Act, added by the coalition’s 2011 Trojan Horse Bill:
6F Recognition of Authority as a volunteer-based organisation
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.
One of the irritating habits of lawyers is to pontificate about the meaning of words, so we’ll have to go there, too. According to Oxford Dictionaries Online:
first: Foremost in position, rank, or importance
foremost: Most prominent in rank, importance, or position
first and foremost: Most importantly; more than anything else
support: (as adjective supporting) (Of an actor or role) of secondary importance to the leading roles in a play or film
Clearly, the intention of this section is to subordinate employees to volunteers. To some eyes, that’s probably fair enough. Don’t let the support staff dominate the people who do all the real work. Keep support staff in their place. (This is how career firefighters feel about corporate staff, hence the recommendation by the Fire Services Review to abolish the role of CEO and subordinate corporate services to the operational Chief Officer… but I digress.)
Subordinating all staff to volunteers would be quite reasonable if the CFA was overwhelmingly run by volunteers, who just needed a few support staff to help bring their efforts to fruition.
This is the CFA that many volunteers know — every firefighter they ever meet is a volunteer. This is also the CFA the public knows from the media — the bushie in his yellows giving a bottle of water to the koala. And it is the CFA yearned for by the faction currently in control of Volunteer Fire Brigades Victoria.
But it’s not the actual CFA. The actual CFA is responsible for not just country areas of Victoria, but more than 60% of the metropolitan area and all regional cities and towns. In urban areas, the public expect a faster response than volunteers can generally provide. At the same time as the CFA area has grown more urbanised, the availability of volunteers has diminished. For these reasons, over the past few decades, CFA has relied more and more upon career firefighters in urban areas. Career firefighters now provide the core of the response in those areas, and handle a large majority of CFA’s total call volume. They are not just support staff — that’s not the case now and it wasn’t the case at the time of the 2011 Trojan Horse bill, or for decades before it.
So Section 6F of the Trojan Horse Bill does not describe the CFA as it actually operates. Because it must maintain adequate service delivery in the places it is responsible for, the CFA cannot help but contravene Section 6F — unless CFA is relieved of responsibility for busy urban areas. But CFA senior management don’t want that, and the coalition, who introduced Section 6F, also don’t want that: if they did, they would have handed the power to alter the Metropolitan Fire District to the Emergency Services Commissioner or otherwise restructured the fire services.
In that case, what was the point of Section 6F, and of related parts of the Bill, and the Volunteer Charter itself? No, they weren’t just a bit of feel-good encouragement for volunteers. I suggest they were put there all along to be used in the way Jack Rush came to use it in 2016.
It’s difficult to pick out a thread of rational argument from Rush’s Herald Sun opinion piece (odd for a QC; perhaps the editor butchered it), but from what I can make out, it’s this:
- The EBA ‘provides unprecedented powers within the CFA to the United Firefighters Union’, and
- the EBA ‘undermines the role and independence of volunteers’, therefore
- the EBA is contrary to the CFA Act.
Rush refers to Section 6F, quoted above, and also to another coalition Trojan Horse Bill addition, Section 6I:
6I Authority’s responsibility to encourage, maintain and strengthen capacity of volunteers
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.
Rush doesn’t articulate his argument in any detail, but presumably he has in mind both the consultation clauses and the increase in staffing levels provided under the EBA. Seemingly, Rush objects to consultation on the grounds that consultation is ‘power’, and Rush objects to increased staffing on the grounds that it diminishes the role of volunteers (even though the employment of hundreds more firefighters stems from the Royal Commission he was involved in).
Rush’s point on consultation seems misplaced to me. Apart from the fact that genuine consultation is widely accepted as essential to workplace safety, and is enshrined in the Fair Work Act 2009 and the Occupational Health and Safety Act 2004 for that reason, Rush seems to miss the fact that consultation shifts ‘power’ from senior management to employees, not from volunteers to employees. Section 6F subordinates employees to volunteers, not to senior management. I guess Rush’s argument comes down to the vibe: employees are the lowest of the low, and have no place being empowered with consultation rights. In other words, the Liberal Party’s anti-worker ideology to a tee.
As for increased staffing levels, it seems to me this is where the Trojan Horse really deploys its soldiers. Notwithstanding the fact that the EBA’s provision for seven-firefighter despatch unarguably improves firefighter and public safety, in the areas where it applies it will undoubtedly move the CFA even further away from the fiction of Section 6F, and arguably will not aid the CFA in complying with Section 6I.
In response, one might well argue that other sections in the CFA Act should take precedence: for example, Section 20: the CFA has the ‘duty of taking superintending and enforcing all necessary steps for the prevention and suppression of fires and for the protection of life and property in case of fire.’ One could also point to the Occupational Health and Safety Act’s many provisions around providing a safe workplace and consulting employees. But I’m no bush lawyer. No doubt the wigs will thresh all that out at the upcoming Supreme Court hearings.
The real point to take home from this is that the coalition government amended the CFA Act in order to enable attacks on the workplace rights of career firefighters. It is no coincidence that the coalition introduced these amendments immediately prior to mounting what the Fire Services review found to be a “deliberately ideological attack on the UFU” in which the senior management of the CFA and the MFB were encouraged to wage “industrial war” upon their own employees. Nor is it any coincidence that the coalition consciously incited volunteers to perceive the EBA as antagonistic to volunteers, Matthew Guy going to the extent of publishing outright lies about the EBA in the Herald Sun. Nor is it any coincidence that the VFBV — the CEO of which is rumoured to be seeking Liberal preselection — is mounting a legal challenge to the EBA which will no doubt make reference to sections of the Act introduced by the Trojan Horse Bill.
These things are not coincidences. Labor and The Greens saw them coming in 2011, when the bill was debated. Tim Pallas (Labor) noted during debate:
We need to resource our fire services adequately and provide career firefighters as part and parcel of that response. Career and volunteer firefighters respond to incidents and fight fires side by side, and it is important that that harmony and integration is preserved. 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.
Colleen Hartland (Greens) raised related concerns:
We must endeavour to foster strong working relationships with volunteer and career firefighters as, when out in the field, a strong and trusting team is integral to their performance and personal safety in the face of danger and emergencies. That is a partnership that we should absolutely be fostering.
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.
Lo and behold, what happened when the EBA came close to resolution? The coalition and its supporters, citing the Trojan Horse Bill, did exactly what Pallas and Hartland warned of: used the bill to block an industrial instrument and attack the conditions of career firefighters, creating a deep, damaging and most likely long-lasting rift between volunteers and career firefighters.
Why didn’t Labor and the Greens try harder to amend or block the bill? Presumably it was because they already knew about the gigantic political stick the Liberals held, and are now wildly wielding, by virtue of being able to misrepresent anything they don’t like as being antagonistic to volunteers. Presumably the same stick is what has repeatedly prevented the modernisation of the CFA/MFB boundary.
Is the EBA contrary to the CFA Act? Only the lawyers will be able to determine that. But let’s not forget why those parts of the Act were put there in the first place. Not to value volunteers. Not to describe the CFA as it actually is, or the CFA as it should be to best meet its duties to public safety. Those sections were put there, five years ago, to attack the workplace rights and safety of career firefighters, by dividing the CFA and pitting volunteers against career firefighters. This attack is now underway, and will come to a head in the Supreme Court, commencing on the 3rd of October.
