When is a firefighter no longer a firefighter? The Employment Court recently released its decision concerning the Fire Service Commission’s ("the Commission") controversial proposal to disestablish all firefighter positions and require all 1600
existing firefighters to apply for "new" fire officer positions. Firefighters who did not apply for, or were not appointed to, a "new" position were to be made redundant.
Firefighters who were appointed to a "new" fire officer position were to be employed on new terms and conditions determined solely by the Commission.
The Employment Court heard that in early 1994 the collective employment contract for firefighters expired. The Commission and the Fire Firefighters Union ("the Union") tried to negotiate a replacement contract, but no settlement was reached.
Bitterness developed between the Commission on the one hand, and the firefighters and the Union on the other.
During the early part of 1997, the parties decided to take a more constructive attitude towards negotiations. But, before this new attitude could influence the negotiation process, a new Chairman and Deputy Chairman were appointed to the Fire Service
Commission and the Commission suddenly withdrew from negotiations. The Union tried to get negotiations back on track, but the Fire Service refused stating that it did not feel able to participate while its future policy direction was under review.
In December 1997, the Commission released a booklet called "The Way Forward" which explained to the public why a flatter management structure had been
introduced. The booklet contained nothing of alarm to firefighters. On 7 May 1998, the Commission released another booklet which contained a proposal
to disestablish all firefighter positions and replace them with a lesser number of new "fire officer" positions. The Commission claimed that "new" positions would have
different primary roles, skills and competencies, including a greater emphasis on fire prevention. Existing firefighters were invited to apply for the "new" positions in competition with the general public.
This booklet was released to the Union and the media simultaneously which resulted in many firefighters learning of the proposal from media reports.
The Commission invited the public to make submissions about its proposals.
On 25 June 1998, the Commission issued a decision abandoning some of the more controversial aspects of its proposals (including advertising the "new" fire officer positions externally), but introducing a number of new features that were not part of
its original proposals. These included changes to terms and conditions of employment, work patterns, position numbers, and reducing the crewing levels on fire engines.
The Commission also sent existing firefighters an "assessment pack" containing a number of forms and authorities which firefighters were asked to complete and return.
The covering letter advised firefighters that completion of the material did not amount to a formal application, but that they had two options - to apply for a "new" position
within 14 days or for voluntary severance within 7 days. Once made, applications were irrevocable. The firefighters then filed proceedings with the Employment Court alleging that the
Commission’s actions were unlawful and in breach of their employment contracts. They argued, amongst other things, that no genuine redundancy situation existed because their positions were not surplus to requirements. The duties, which they
performed, would continue to be done by the "new" fire officers. They further alleged that the restructuring was a sham designed to impose on them
new terms and conditions of employment that the Commission had been unable to secure through negotiations. The Employment Court upheld the firefighters' claims.
| "To justify the
disestablishment of existing positions ... it must be shown that the work being done by the holders of the positions is no longer needed by the employer ... The mix of
activities making up the job content may alter but if the work is still there and needs to be done, it cannot be said that the incumbents are redundant ... The positions of
fire officer and senior fire officer are substantially the same as the positions of qualified firefighter and senior firefighter ... The Commission is not entitled to
disestablish the positions of all its firefighters ... and replace them with firefighters ... called by another name merely by adopting the expedient of subtly altering the job content" said Chief Judge Goddard.
| | The Court also commented that if an employer wanted to reduce position numbers, it
was not entitled to declare all positions surplus and require all employees to reapply for their jobs unless their employment contracts provided for this.
The Court indicated that that it intended to issue an injunction restraining the Commission from disestablishing the positions held by the firefighters but invited the parties to make further submissions regarding the wording of the order. The Court
also requested the parties to make further submission regarding the Commision paying damages.
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