Bulletin No: 125 Volume: 22 Monday 11 July 2016
To: ALL UFU MEMBERS
“INDEPENDENT REVIEW “- WHY THE UFU IS CONCERNED ABOUT THIS REVIEW
As members were advised in a previous Bulletin the MFB has announced to its staff that the Victorian Equal Opportunity and Human Rights Commission are to undertake a review into “the extent, nature and impact of sexual harassment and discrimination, including bullying on employees and volunteers of the CFA and MFB”.
Members have been advised that participation in the review is voluntary but it is vital for members to also understand what the risks and issues are with participation in this review and why we consider it is not in your interests to participate.
UFU has a number of serious concerns about the establishment and proposed operation of this Review. UFU has already foreshadowed these concerns with MFB in the context of a Dispute. Regrettably, despite having advised MFB of the dispute it has appeared the MFB is continuing to promote the review. The UFU is seeking clarification with the MFB regarding this.
UFU’s concerns, many of which have already been outlined to MFB include the following:
- By letter of 14 June 2016 the VEOHRC Commissioner, sought to engage with UFU directly in relation to a proposed Independent Review arising out of the Fire Service Review. The UFU had proposed doing so as there were a number of matters of concern raised by the proposal. Pending that clarification it is not appropriate for the process to commence.
- Accompanying the Commissioner’s letter was a copy of confidential proposed Terms of Reference for the Review. The source or authority for the Terms of Reference provided is not clear. The UFU proposes to discuss the proposed Terms of Reference with Government noting that it is Government, not MFB that has initiated the Review.
- The UFU will be seeking clarification from Government and/or VEOHRC in respect of a number of matters associated with the Review including:
- The composition of the Expert Panel led by Commissioner Hilton. Despite the claimed independence of the review the identity of the Expert Panel has not been disclosed. Transparency and confidence in a review cannot possibly be achieved if those responsible are to be kept secret;
- The role/functions of the VEOHRC in connection with the Expert Panel. The Review was announced as independent yet the role and function of the VEOHRC has not been clarified. Is it an Expert Team or is VEOHRC or some Review Team?;
- The composition and role of a “Review Team” as distinct from the Expert Panel that is proposed to be involved in the review is not clear;
- The statutory foundation, inter alia, of the proposed Review is uncertain. Indeed the VEOHRC has no power to conduct the Review as announced and initiated by Government under the Equal Opportunity Act or the Charter of Human Rights Act. In the absence of power the very important issues of confidentiality and protections for employees arising from their participation is prejudiced;
- Apparent inconsistencies between the Government’s announcement, the proposed Terms of Reference and the proposal as explained by VEOHRC require clarification including the very basic question of whether an Independent Expert Panel (as yet unnamed) of the VEOHRC is conducting the Review;
- Clarification of the source and scope of the necessary statutory protections for member participation and confidentiality associated with the material obtained from members and/or UFU in the course of the Review;
- The implications for the VEOHRC’s role in connection with the review of the VEOCHRC’s Report prepared for the CFA in December 2015 including the attribution to the UFU of likely discriminatory conduct.
- The implications for the independence of the VEOHRC and any involvement in the Review in circumstances where it has been responsible for the provision of training in the MFB for some time and thus will be in the position of reviewing its own work and effectiveness;
- The significance of UFU’s own initiative in retaining an independent academic institution to undertake a review; and
- The failure of the VEOHRC to publicly clarify the limited scope of its 31 December 2015 report to the CFA despite the sustained media misrepresentation of the Report has eroded confidence in its position. The Report was qualified such that:
- “ any advice contained within it does not constitute legal advice“.
- The Report “does not purport to provide compliance advice in relation to the Fair Work Act 2009… in particular the provisions relating to Part 2-4 of the Fair Work Act relating to approval of enterprise agreements by the Fair Work Commission such as whether an agreement passes the better off overall test, whether there is a contravention of the National Employment Standards, or whether there is any unlawful (discriminatory or objectionable) term“.
- The VEOHR Commission “strongly recommend that the CFA seeks independent legal advice about the matters contained in this report“.
For all these reasons, the UFU is strongly of the view that it is not in members’ interest to participate in the Review at this time.
This is NOT MFB’s review. It is meant to be independent. Pending clarification on basic issues members should not participate.
UFU has engaged an independent tertiary institution to undertake a review to ensure all employees have an opportunity to participate in a genuine and independent review.
Members will shortly be receiving information on this matter generally.
Please contact the UFU office on 9419 8811 should you wish to discuss this matter further.
Strength in Unity
READ OUT AT MUSTER AND PIN ON NOTICE BOARD
Authorised by Peter Marshall, Branch Secretary