Andrew Bishop v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
[2019] FWCFB 14
•17 JANUARY 2019
| [2019] FWCFB 14 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Andrew Bishop
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(C2018/6087)
| VICE PRESIDENT HATCHER | SYDNEY, 17 JANUARY 2019 |
Appeal against decision [2018] FWC 6230 of Commissioner Wilson at Melbourne on 9 October 2018 in matter number C2018/222 – arbitration under dispute resolution procedure in an enterprise agreement – appeal upheld – decision quashed – dispute re-determined – matter remitted to Commissioner Wilson to deal with any disputes in relation to the question of remedy.
Introduction
Mr Andrew Bishop has appealed against a decision made by Commissioner Wilson (Decision)[1] in connection with a dispute as to Mr Bishop’s classification as an operational firefighter by his employer, Broadspectrum (Australia) Pty Ltd (Broadspectrum), under the enterprise agreement that applies to him, namely the Transfield Services Defence Base Services (Vic) and the United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2015 (Agreement).[2]
Mr Bishop is currently classified by Broadspectrum as a Firefighter Level 3 under the Agreement. However, Mr Bishop contends that he meets the criteria for classification as a Qualified Firefighter (with Leading Firefighter Qualifications). Mr Bishop sought re-classification as a Qualified Firefighter (with Leading Firefighter Qualifications) in December 2016. Broadspectrum rejected his request for re-classification, and Mr Bishop lodged a grievance about the issue the following year.
The Commissioner determined, pursuant to the dispute settlement procedure (clause 2.2) in the Agreement, that Mr Bishop’s service as a firefighter prior to his engagement by Broadspectrum should, in accordance with the Agreement, be taken into account in determining his classification. However, the Commissioner found that Mr Bishop was not eligible for reclassification to either the level of Qualified Firefighter or Qualified Firefighter (with Leading Firefighter Qualifications). The Commissioner made that determination in light of what he found were deficiencies in the evidence before the Commission in relation to Mr Bishop’s qualifications. So much is clear from paragraph [55] of the Decision:
“[55] While it is to be noted that Mr Bishop could well have the competencies he contends, that is not the evidence before the Commission at the moment. At the point he is able to demonstrate that he has met the required competencies, he will be eligible to be reclassified to the high levels he aspires. At this time though he is not eligible for reclassification to either the level of Qualified Firefighter or Qualified Firefighter (with Leading Firefighter Qualifications).”
Permission to appeal
There is an issue as to whether clause 2.2 of the Agreement confers an independent right of appeal (for which permission to appeal is not required). However, we do not need to resolve that question because we are satisfied that, to the extent it is required, permission to appeal should be granted on the basis that the Decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission to appeal is refused.
Merits of the appeal
There is no question that the Commissioner had jurisdiction to determine the dispute under clause 2.2 of the Agreement.
Clause 4.1 of the Agreement governs the classification of an employee covered by the Agreement. It provides:
“4.1 CAREER PATHS & OPPORTUNITIES
(i)Employees shall be appointed to a classification in accordance with their qualifications as identified in Appendix A – Training Matrix. Note: appointment to the position of Leading Firefighter and above is subject to there being a vacancy.
(ii)In addition to (i) above employees will need to demonstrate the following experience as prescribed in the appropriate classification definitions in clause 1.7…”
The classification definitions are contained in clause 1.7 of the Agreement. Relevantly, they provide as follows:
“‘Qualified Firefighter’ means an employee who has completed a minimum of 36 months service as a paid Firefighter within the fire and rescue industry and successfully completed all Level 1, 2, 3 and Qualified Firefighter modules outlined in Appendix A – Training Matrix and assessment.
‘Qualified Firefighter (with Leading Firefighter Qualifications)’ means a Qualified Firefighter who has completed all Level 1, 2, 3, Qualified and Leading Firefighter modules outlined in Appendix A and assessments eligible for promotion to Leading Firefighter outline in Appendix A of this Agreement.”
At first instance there was a dispute as to whether the Agreement required that an employee’s “service as a paid Firefighter within the fire and rescue industry” take place at a particular time or within a particular period prior to an application for re-classification. The Commissioner resolved this issue of construction in the following way:
“[37] The plain meaning of the phrase “service as a paid Firefighter within the fire and rescue industry” is that the employer is to recognise past service when assessing an employee for classification. There is nothing within the disputed provisions which allow a finding that a contrary meaning is intended. The words themselves are plain and not susceptible to more than one meaning.”
No appeal or challenge has been made to the Commissioner’s interpretation of this part of clause 1.7 of the Agreement. We consider it to be correct.
As a result of his interpretation of the relevant part of clause 1.7, the Commissioner concluded that Mr Bishop’s 10 years’ service as a paid firefighter when he was employed by the Melbourne Metropolitan Fire and Emergency Services Board between 1988 and 1998 must be taken into account in determining his classification under the Agreement.
The Commissioner then turned to consider, on the evidence adduced, whether Mr Bishop had the “qualifications as identified in Appendix A – Training Matrix” (clause 4.1(i) of the Agreement).[3] The Commissioner concluded that the evidence given by Mr Bishop on that question was not sufficient for him to conclude that Mr Bishop had the necessary qualifications.[4]
Mr Bishop contends that the Commissioner erred by not considering evidence given by Broadspectrum’s National Fire & Rescue Manager, Mr Colin Anderson, to the effect that Mr Bishop had the qualifications required for the classification of Qualified Firefighter (with Leading Firefighter Qualifications). We agree. Mr Anderson gave evidence to that effect[5] and there is no reference to it in the Decision. This appealable error warrants the Decision being quashed.
Re-determination of dispute
We consider it appropriate to re-determine the dispute ourselves, rather than remitting the whole of the dispute to the Commissioner or another Member of the Commission.
We are satisfied, as was the Commissioner, that Mr Bishop has the “experience as prescribed”[6] in the classification definition for a Qualified Firefighter (with Leading Firefighter Qualifications). In particular, Mr Bishop has completed a minimum of 36 months service as a paid Firefighter within the fire and rescue industry.
As to the necessary qualifications for the classification of Qualified Firefighter (with Leading Firefighter Qualifications), Mr Klepac, who appeared for Broadspectrum in the appeal, conceded, that Mr Bishop has, and had at the time he applied for re-classification as a Qualified Firefighter (with Leading Firefighter Qualifications), the necessary qualifications for that classification. The concession we consider to be appropriate, consistent as it is with the evidence given at first instance by Mr Anderson.
Mr Klepac submits, however, that it is a requirement of the Agreement, properly construed, that an employee such as Mr Bishop must accrue the necessary experience for the classification of Qualified Firefighter (with Leading Firefighter Qualifications) after, or contemporaneously with, his attainment of the necessary qualifications. Mr Klepac accepted that if he is wrong about that question of construction, then Broadspectrum will lose and the dispute will be determined in Mr Bishop’s favour.
We reject Broadspectrum’s argument concerning the proper construction of the Agreement. It is not supported by the terms of the Agreement. In particular, clause 4.1 of the Agreement imposes two requirements for appointment to a particular classification:
(1)attainment of the “qualifications as identified in Appendix A – Training Matrix”; and
(2)“in addition to” (1), demonstration of the “experience as prescribed in the appropriate classification definitions in clause 1.7”.
Contrary to Broadspectrum’s contention, the expression “in addition to” in clause 4.1(ii) of the Agreement does not impose, or suggest, any requirement that the necessary experience for the classification of Qualified Firefighter (with Leading Firefighter Qualifications) be accrued after, or contemporaneously with, the attainment of the necessary qualifications. The ordinary meaning of the expression “in addition to” is “as well as”. Construed in this context, the expression “in addition to (i) above” in clause 4.1 simply means that, in order to be classified in a particular classification, an employee must have the “experience as prescribed in the appropriate classification definition” as well as the “qualifications as identified in Appendix A – Training Matrix”.
Mr Klepac also relies on clauses 1.7 and 8.1 of the Agreement to support his construction. As to the classification definitions in clause 1.7, they deal first with the completion of a minimum period of “service as a paid Firefighter within the fire and rescue industry” and then with the successful completion of particular modules and assessments. The placement of the reference to experience before the requisite qualifications in the relevant classification definitions tells against Broadspectrum’s contention that employees must accrue the necessary experience for the classification after, or contemporaneously with, their attainment of the necessary qualifications. Further, the definition of “Qualified Firefighter” uses the word “and” to connect (a) the requirement to complete a period of service with (b) the successful completion of particular modules and assessments. Construed in context, the word “and” in the definition of “Qualified Firefighter” conveys the requirement that an employee must obtain both the necessary experience and qualifications to meet the criteria for the classification. Similarly, the definition of a “Qualified Firefighter (with Leading Firefighter Qualifications)” as a “Qualified Firefighter who has completed” [emphasis added] particular modules and assessments says nothing about when such qualifications must be obtained. In order to satisfy the definition of a Qualified Firefighter (with Leading Firefighter Qualifications), the requirement is simply to complete the necessary modules and assessments (which repeat and add to the necessary modules and assessments for a Qualified Firefighter) and meet the experience requirements of a Qualified Firefighter. There is no question that Mr Bishop has met both of those requirements.
As to clause 8, Mr Klepac relies on the second paragraph of clause 8.1:
“8.1 SKILLS DEVELOPMENT AND TRAINING
The parties acknowledge that managing technological change is a significant operational challenge. New technology is a key to future safety and efficiency.
To achieve this end the Employer will provide employees with appropriate training such that they are able to optimise their effectiveness in achieving the requirements of their position and the objectives of the Employer…”
The requirement imposed on Broadspectrum by clause 8.1 to “provide employees with appropriate training such that they are able to optimise their effectiveness …” does not deal with the question of when such training must be provided or whether it should be provided after, or contemporaneously with, an employee obtaining experience in a particular classification. Clause 8.1 of the Agreement does not provide any support for the construction advanced by Mr Klepac.
We therefore determine that Mr Bishop is, and was at the time he applied for re-classification, entitled to be classified as a Qualified Firefighter (with Leading Firefighter Qualifications) under the Agreement.
On the question of relief, Mr Bishop seeks backpay in relation to his classification as a Qualified Firefighter (with Leading Firefighter Qualifications). The remedy of backpay may give rise to a range of issues, such as the date from which such backpay should be paid and the quantification of any such payment. We consider that Commissioner Wilson would be best placed to deal with such issues, in the event the parties cannot resolve them by agreement. Accordingly, we will remit the matter back to Commissioner Wilson so that any such residual issues can be addressed.
Conclusion
For the reasons given, we:
(a) grant permission to appeal;
(b) uphold the appeal;
(c) quash the Decision;
(d) determine that Mr Bishop has, and had at the time he applied for re-classification to the position of Qualified Firefighter (with Leading Firefighter Qualifications), the necessary experience and qualifications for that classification under the Agreement; and
(e) remit the matter back to Commissioner Wilson to decide the question of remedy.
VICE PRESIDENT
Appearances:
J. Murphy of the United Firefighters’ Union of Australia (Victorian Branch) for Mr Andrew Bishop
D. Klepac for Broadspectrum (Australia) Pty Ltd
Hearing details:
2018.
17 December:
Melbourne.
VICE PRESIDENT
Appearances:
Hearing details:
Final written submissions:
<PR703562>
[1] [2018] FWC 6230
[2] AE417091
[3] Decision at [40]-[52]
[4] Decision at [46]-[55]
[5] Transcript 8 August 2018 at PNs 138-144 and 152
[6] Clause 4.1(ii) of the Agreement
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