DISPUTE RE DIRECTIONS TO UNION MEMBERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Department of Fire and Emergency Services

APPLICANT

-v-

United Professional Firefighters Union of Western Australia

RESPONDENT

CORAM Commissioner T B Walkington

DATE Monday, 20 October 2025

FILE NO/S C 28 OF 2025

CITATION NO. 2025 WAIRC 00866

Result Interim order issued

Representation

Applicant Mr T Bishop (of counsel)

Respondent Mr C Fogliani (of counsel)

Interim Order

WHEREAS on 13 October 2025, the Department of Fire and Emergency Services (Department) applied pursuant to s 44 of the Industrial Relations Act 1979 (WA) (IR Act) to the Western Australian Industrial Relations Commission (Commission) seeking orders for the United Professional Firefighters Union of Western Australia (UPFUWA) to cease and desist with the following two actions:

1. Union bans on members from seeking opportunities to undertake instructor positions at the Department of Fire and Emergency Services Academy (EOI Dispute);

2. Union bans on members undertaking Appliance on Restricted Duties (AORD) procedures in maintaining Career Fire and Rescue Service (CFRS) shift staff levels (AORD Dispute);

AND WHEREAS, on 13 October 2025, the Commission convened an urgent s 44 conference for the purpose of conciliating between the parties and the Commission was informed that:

1. In June 2025, the UPFUWA commenced a campaign of escalating industrial action to support its desired outcomes in negotiations for a replacement Enterprise Bargaining Agreement.

2.  From June 2025, the industrial action includes writing bargaining slogans on work appliances, hanging signs over pedestrian bridges during peak hour traffic whilst wearing Personal Protective Clothing, lobbying local parliamentary members and refusing to answer calls from the Department when off duty on unspecified dates.

3.  In August 2025, the UPFUWA imposed further industrial action, being the continued marking of work appliances with campaign messaging, refusal to answer messages and calls from the Department on personal mobile devices, limits on overtime worked, limits on the completion of incident reports and limits on the use of personal mobile phones between 8.00 am and 6.00 pm every Friday.

4. In September 2025, the UPFUWA imposed further bans directing members to not engage in pre-arranged call backs for staff vacancies and a 24-hour ban on all forms of call backs from 8.00 am Tuesday until 8.00 am Wednesday every week. The existing ban on the use of personal mobile phones was extended to a 24-hour period commencing 6.00 pm on Thursday until 6.00 pm Friday every week. Additional bans on pre-arranged call backs in the metropolitan area and a ban on pre-arranged call backs in the country areas to fill any vacancy beyond the next shift were imposed. The UPFUWA directed members that from 8.00 am on 25 September 2025, firefighters are to stand together for eight minutes of awareness to demand action on the eight critical issues that remained unresolved in the bargaining process.

5.  On 3 October 2025, the UPFUWA issued a directive to members to not support Expressions of Interest (EOI) for Trainee Firefighter School Instructors, Duty Officers, Divisional Leads or Firefighter Development Program Instructors.

6.  On 10 October 2025, the UPFUWA issued ‘Position Statement 6/2025 UPFUWA Position Statement – Appliance on Restricted Duties (AORD)’ and ‘Circular No 55/2025 – Ban on AORD Practice’, which directs that from 6.00 pm on 10 October 2025, no CFRS appliance shall be staffed or mobilised under AORD conditions.

7.  The Department’s application seeks orders for the lifting of specified bans, being the EOI for Trainee Firefighter School Instructors and the ban on AORD procedures.

8.  The Department seeks orders for the lifting of specified bans on the grounds that:

(a) they submit that the timeframes for the EOI was critical to the Department’s capacity to hold a Trainee Firefighter School to provide for replacement and maintain additional firefighter staffing levels in 2026;

(b) the Department contends that the use of AORD procedures to maintain CFRS shift staff levels is required, in light of the challenges of staffing levels and the impact of the industrial bans imposed by the UPFUWA on alternative measures designed to maintain staffing levels.

9.  The UPFUWA argues that the ban on AORD procedures are not bans imposed to further their industrial action in support of a replacement Enterprise Bargaining Agreement, and the UPFUWA’s intention of this ban is to ensure firefighters and the community are not exposed to unacceptable risks to their safety.

AND WHEREAS during the conference on 13 October 2025, the Department expressed an intention to submit affidavit evidence in support of their position and the UPFUWA stated their wish to cross examine the Department’s witness evidence and they would want to also submit affidavit evidence for the Commission’s consideration. The Commission issued consent programming orders for the submissions of evidence and the listing of a hearing on Friday, 17 October 2025 at 1.00 pm ([2025] WAIRC 00852, [2025] WAIRC 00853);

THE EOI DISPUTE

AND WHEREAS at the conclusion of the conference on 13 October 2025, the parties agreed to meet as scheduled the following day to discuss a resolution to the EOI issue. At the hearing on 17 October 2025, the parties recorded the agreement to a resolution of this matter, and agreed that it was not necessary for the Commission to further consider and make a determination in relation to the EOI Dispute;

THE AORD DISPUTE

AND WHEREAS following the hearing on 17 October 2025, the Commission has had regard to the following matters regarding the AORD Dispute:

1.  The Department contends that the UPFUWA’s ban on AORD procedures is a ban imposed as part of the series of escalating bans in the UPFUWA’s industrial campaign for a replacement Enterprise Bargaining Agreement. The Department invites the Commission to make a finding to this effect and submits that the Commission need look no further than to the timing of the imposition of the ban.

2.  The UPFUWA refutes this and maintains the ban on AORD procedures is a separate and distinct issue concerning the risk to safety of their members from the ongoing use of this practice. The evidence of the UPFUWA is that the AORD ban is not related to the current enterprise bargaining negotiations. The UPFUWA witnesses were not challenged on this issue.

3.  A review of the evidence reveals that the two communications issued by the UPFUWA on the subject of AORD procedures, are not badged in the same manner as the UPFUWA’s communications on the other bans, from which the UPFUWA agrees are measures taken in support of their campaign for a replacement Enterprise Bargaining Agreement. The second communication to their members on AORD ‘Circular No 55/2025 Ban OF AORD Practice’ sets out the directive to members that from 6.00 pm Friday 10 October 2025, no CFRS appliance is to be staffed, operated, or mobilised under AORD conditions. The first communication on AORD ‘Position Statement 6/2025 UPFUWA Position Statement – Appliance on Restricted Duties (AORD)’ sets out the UPFUWA’s concerns for the continued use of AORD by the Department. Neither communication refers to the industrial campaign for a replacement Enterprise Bargaining Agreement.

4.  A review of the text of the UPFUWA’s communications providing information to their members about the industrial campaign for a replacement Enterprise Bargaining Agreement, are clearly directed toward the campaign for a replacement Enterprise Bargaining Agreement. In some of these communications, the UPFUWA requests members to report ‘Spontaneous Crewing, AORD or Decommissioning’ to the UPFUWA’s Station Operational Staffing assistance email address. The UPFUWA’s monitoring of the impact of bans and the use of various practices to staff crews in the context of the industrial campaign is understandable. However, it is not clear what is meant by the UPFUWA’s observation in ‘Circular No 54/2025 EBA 2025 – Raising the Profile 9 Campaign Update (Post Rally)’ issued on 3 October 2025. In this circular, the UPFUWA further requests members to report ‘Spontaneous Crewing, AORD or Decommissioning’ in which they inform members that ‘the Executive, Committee and Delegates TEAMS meetings are scheduled to consider further measures including AORD; Spontaneous Crewing – both health and safety issues; and Off duty contact ability’. The circular observes that ‘none of which have been addressed in the redrafted Final Offer, received at 1705 Wednesday’. It is unclear as to the reference to the issue of AORD not being addressed in the final offer.

5. The ongoing industrial campaign in support of the replacement of the Enterprise Bargaining Agreement has resulted in some limitations on the capacity of the Department to use other options to meet minimum crew levels, such as contacting firefighters on their personal mobile phones and limits on pre-arranged call backs. Both parties agree that the frequency of the use of AORD has increased over time and prior to the commencement of the industrial bans. Albeit they disagree on the reasons for this increase.

6.  The UPFUWA argues the Department’s continued use of AORD is in breach of a long-standing agreement between the parties on staffing levels. The UPFUWA and the Department have had an agreement since 2016 known as the Relief and Transfer Guidelines Firefighter and Station Officer Rank Employees 2016 which at Annex C – Station Profile, sets out two different crew profiles for ‘Minimum Crew Profile (due to unknown events)’ and for ‘Preferred Crew Profile (a selection process)’. The UPFUWA claims the use of AORD undermines the minimum staffing levels agreed between the parties.

7.  The UPFUWA argues the use of AORD is unsafe. The UPFUWA also argues that the use of AORD has evolved from an emergency measure utilised, into a normalised staffing practice and its continued use breaches established agreements between the parties on preferred and minimum staffing levels and on consultation obligations. The UPFUWA argues it is necessary to place a ban on the use of AORD to ensure the safety of their members.

8.  The essence of the AORD Dispute concerns the differences in the UPFUWA’s views that this practice is unsafe for both their members and members of the public and the Department’s contrary view that it is a necessary option to ensure the safe deployment of appliances and firefighter crews in circumstances where minimum staffing levels cannot be met.

9. The evidence clearly shows that the UPFUWA does not agree with the Department over the use of AORD, and this is an industrial matter beyond the scope of the industrial campaign in support of a replacement Enterprise Bargaining Agreement.

DISPUTE RESOLUTION

10. The evidence is that the issue of the use of AORD procedures has been the subject of correspondence and discussion between the UPFUWA and senior officers of the Department since the beginning of the year. The parties maintain a register of actions to be undertaken and the IR Ops Meeting – Open Actions Register submitted by the Department, reflects that on 24 April 2025 ‘an action to schedule a meeting with Metro Operations and UPFU on SAP 5.1A’ was entered.

11. The concerns of the UPFUWA are twofold in that:

(a)  they hold a concern for the risk to the safety of their members and;

(b)  they hold a concern for the adherence to the Relief and Transfer Guidelines and the principles of the agreement on staffing levels.

12. In relation to any risks to the safety of their members through the use of AORD procedures, the UPFUWA, and their members, have access to the processes available under the Work Health and Safety Act 2020 (WA).

13.  The Commission notes the parties have established an agreed process to resolve any questions, difficulties or disputes arising in the course of the employment of employees with the Department, which shall be dealt with in accordance with the procedures set out in Clause 11 of the Western Australian Fire Service Enterprise Bargaining Agreement 2023. This clause provides for:

(1) …

(2) …

(3) …

(4)  Wherever possible disputes will be resolved at the lowest level by the parties directly affected (i.e. Employees and managers). Any party involved in the dispute process may seek advice and/or include the involvement of the Union or other independent representative to assist during any stage of the process.

(5) While the dispute procedure is being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the returning to the status quo (i.e. the condition applying prior to this issue arising) or the continuance of work in accordance with this sub clause.

14.  In this matter, the ‘existing situation or practice’ immediately prior to the dispute is contained in the practice set out in the ‘Standing Administrative Procedure 5.01.A – Maintaining CFRS Shift Staff Levels Version 3.1’ (SAP 5.01A) effective from May 2024. The purpose of this document is to ‘…explain the process for maintaining correct staffing levels on career fire stations in the event of staff shortages’. In Section 6 of the SAP 5.01A, the process is set out for situations where no call back is available to fill a staff shortage and minimum crew levels cannot be maintained:

6. Minimum Crew Levels Cannot be Maintained:

Where no call back is available to fill a staff shortage, DO Perth is to consider the following options in consultation with the chain of command to the relevant AC or the On-Call Duty AC (after hours) as a minimum:

Hold Back/Stand Down (HB/SD) - Relevant AC or the On-Call Duty AC (after hours) approval required.

Appliance on Restricted Duties (AORD) - DC approval required.

SO Vacancy.

Response: Will respond only under non-emergency conditions and if direct supervision is guaranteed at the incident scene.

Training: Crew is available to attend training.

FF Vacancy.

Response: Deployable as secondary resource under non-emergency driving conditions.

Training: Crew is available to attend training.

Appliance Stand-down Pending Staff Availability (ASPSA) - DC approval required.

Outside of the High Threat Period, consideration should be given to standing down 2.4/3.4 appliances in the first instance.

DO Perth is to relate all operational availability decisions to the DO Communications Centre (DOCC) and the affected regional DO and Superintendent during business hours, and On-Call Superintendent after hours.

15.  The evidence is that a version of the SAP 5.01A document has included a similar reference to an ‘Appliance on Restricted Duty’ since 2011. Recognising the UPFUWA has not been consulted on the most recent version of this document, the existing practice under clause 11 of the Western Australian Fire Service Enterprise Bargaining Agreement 2023, is that of an option to use an Appliance on Restricted Duties.

THE NATURE OF THE ORDERS

AND WHEREAS the Commission is of the view that the matter before it is an industrial matter, as it concerns issues pertaining to the employment relationship between the Department and the UPFUWA’s members;

AND WHEREAS the Commission is of the view that it has jurisdiction to issue orders pursuant to s 44 of the IR Act;

AND WHEREAS the orders sought must be for the purposes set out in s 44(6)(ba)(i), (ii) and (iii) of the IR Act:

(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the subsection, may –

(a) …

(b) …

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission –

(i)  Prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter; or

(ii)  Enable conciliation or arbitration to resolve the matter in question; or

(iii)  Encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question.

AND WHEREAS having heard from the Department and the UPFUWA, considering the evidence and submissions made by both parties, taking into account equity, fairness and the substantial merits of the matter, the objects of the IR Act and in particular, s 44(6)(ba)(i) and (ii) and s 44(6)(bb)(i) of the IR Act, I have formed the view that interim orders ought to issue;

AND WHEREAS in my view, there is utility in the parties’ exchanging information and attitudes in relation to the use of AORD and the terms of the agreements on staffing levels as set out in the Relief and Transfer Guidelines Firefighter and Station Officer Rank Employees 2016 and Annex C – Station Profile. Should these discussions not result in an agreed position on the use, or otherwise, of AORD then there would be utility in the parties engaging in conciliation or arbitration to resolve any outstanding matters in question. Given the parties agreed dispute resolution process, and with the intention of preventing further deterioration of industrial relations, the ban on AORD procedures ought to be lifted to enable the parties to exchange information and attitudes and consider the facilitation of a resolution through conciliation or arbitration;

AND WHEREAS the issuing of interim orders does not reflect a determination of the issue of whether the use of AORD is permitted under the agreed minimum staffing levels and whether the use of AORD is a safe practice in the context of staff resourcing and the deployment of resources to respond to fires and emergencies;

AND WHEREAS the terms of this order do not relieve a party from their obligations under the Work Health and Safety Act 2020 (WA) and does not prevent any party from accessing the processes available under the Work Health and Safety Act 2020 (WA);

NOW THEREFORE, the Commission, pursuant to the powers vested in it by s 44(6) of the IR Act hereby

ORDERS –

1. THAT the respondent direct its members to cease the industrial action concerning AORD practices and withdraw Circular No 55/2025 ‘Ban of AORD Practice’ dated 10 October 2025;

2. THAT the applicant’s senior officers and the respondent’s senior representatives meet to exchange information and attitudes in good faith in an endeavour to reach agreement on the use of AORD in the context of the Relief and Transfer Guidelines Firefighter and Station Officer Rank Employees 2016 Annex C – Station Profile and any risks to safety of the respondent’s members by the use of AORD;

3. THAT the parties attend a further conference with the Commission in the week commencing Monday, 10 November 2025, to provide a report on the exchange of information and attitudes as per (2) above and the need for any further orders;

4. THAT the respondent notify their members employed by the applicant of the terms of this order by no later than 5.00 pm on Tuesday 21 October 2025 by:

(a) email transmission to such members; and

(b) publication of the Order on the respondent’s website; and

(c)  placing a copy of the Order on the notice boards usually used by the applicant for the purposes of communicating with officers engaged by the applicant who are members or eligible to be members of the respondent.

5. THAT this order remains in force until 9 December 2025 or until varied or revoked by the Commission;

6. THAT the parties have liberty to apply to vary, revoke or extend this order at short notice.

Commissioner T B Walkington