Andrew Bishop v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

[2019] FWC 2169

[2019] FWC 2169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Andrew Bishop
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(C2018/222)

COMMISSIONER WILSON MELBOURNE, 2 APRIL 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 17 January 2019, the Full Bench determined an Appeal by Andrew Bishop 1 in relation to an earlier decision issued by me2 concerning a dispute arising under the applicable enterprise agreement, the Transfield Services Defence Base Services (Vic) and the United Firefighters' Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2015 (the Broadspectrum Agreement).3 The matter in dispute was whether or not Mr Bishop should have been reclassified to the level of Qualified Firefighter with Leading Firefighter Qualifications. Mr Bishop was granted permission to Appeal and the Appeal was upheld, with the Full Bench finding that there was no question that Mr Bishop had met both the training and experience requirements necessary for the position.

[2] Having upheld the Appeal and for the reason that Mr Bishop sought backpay in relation to his classification the Full Bench remitted the matter back to me for determination noting that “[t]he 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”. 4

[3] Relevant to the determination in the decision at first instance and the Appeal decision are some of the classification definitions set out within clause 1.7 of the Agreement, and in particular:

“‘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.”

[4] In the course of its decision, the Full Bench:

● Accepted that 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; 5

● Was satisfied that having completed a minimum 36 months service as a paid firefighter within the fire and rescue industry, Mr Bishop had the “experience as prescribed” necessary for appointment as a Qualified Firefighter (with Leading Firefighter Qualifications). 6

● Accepted a concession on the part of Broadspectrum that Mr Bishop had at the time he applied for reclassification as a Qualified Firefighter (with Leading Firefighter Qualifications) the necessary qualifications for classification; 7

● Found that 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 and that there was no question that Mr Bishop had met both of those requirements. 8

[5] Following publication of the Full Bench’s decision the parties were invited to provide further submissions and other material to me in order to determine the remaining question of the remedy of backpay in particular the date from which it should be paid and the quantification of any such payment. In response to the Directions given, each party provided me with additional material but did not seek to be heard in relation to the matter. While an opportunity was given for a hearing on the matter, neither party sought to be heard.

[6] On behalf of Mr Bishop, the United Firefighters’ Union submitted:

● There was evidence before the Full Bench that Mr Bishop first applied for the rank of Qualified Firefighter (with Leading Qualifications) on 30 November 2017; 9

● Mr Bishop was provided with a letter confirming his reclassification to the rank of Qualified Firefighter (with Leading Qualifications), effective 14 December 2018, 10 a few days prior to the hearing of the appeal;

● The Commission has previously accepted that an employee should not be disadvantaged by delay in prompt consideration of a reclassification request. In the matter of Adam Hanlon v Wood Group PSN Australia Pty Ltd, 11 Deputy President Masson decided that backpay should be provided to the date when the employee had requested classification.12 In the matter referred to, the Commission attributed the delay as being almost entirely within the control of the Respondent and that “[i]n these circumstances, I am not persuaded that the date for backdating of the increased rate of pay should be varied from that stated on the Request Form. The Applicant should not be disadvantaged by reason of [the Respondent’s] delays in finalising the reclassification request”.13

● If it is accepted that Mr Bishop should be reclassified to the level Qualified Firefighter (with Leading Qualifications) from 30 November 2017, several pay adjustments are required including not only the payments he would have otherwise received in ordinary time but also payments due to him for overtime and superannuation, both of which would be computed upon the appropriate classification rate. 14

[7] For its part Broadspectrum put forward:

● That it does not seek to introduce new evidence in relation to the matter that was the subject of Appeal however; 15

● In relation to Mr Bishop’s submission that he first applied for the rank of qualified firefighter (with leading qualifications) on 30 November 2017 and that he received a response on the same day advising that his application had been rejected, Broadspectrum submits that this “was not solely related to time served by the Applicant, which was the subject or focus of the Appeal” and that he “did not hold the requisite qualifications on the 17 November 2017 for progression to the rank of qualified firefighter”. This contention is advanced because, Broadspectrum says, at the time of his application Mr Bishop had not completed a particular module required to be classified or progressed to a qualified firefighter. 16

● It is further submitted by Broadspectrum that Mr Bishop did not obtain this particular module until 5 June 2018 according to its records.

● Broadspectrum further submits:

“13. There is no evidence before the Respondent that indicates the Applicant held all the required qualifications prior to this date.

14. The Respondent understands the evidence of Mr Colin Anderson, indicated the Applicant held the required qualifications to progress to a QFF at the time the matter was being heard not as at the 17 November 2017.” 17

[8] Broadspectrum has not sought to adduce new evidence in this matter, and submits that it accepts the Full Bench’s decision. 18

[9] Broadspectrum’s submissions in effect are an invitation to reopen the determination made by Full Bench in relation to Mr Bishop’s qualifications, which is contrary to its stated position in this remittal proceeding as well as apparently contrary to the concession given on Appeal. There is simply no warrant from the Full Bench’s decision for entertaining such a submission, with its decision being abundantly clear, with the following relevant findings:

“…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.” 19 and

“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.” 20

[10] Mr Bishop does not seek payment earlier than 30 November 2017, the date upon which he first sought to be classified at the rank of Qualified Firefighter (with Leading Firefighter Qualifications). 21 There is no evidence before the Commission consistent with the findings made by the Full Bench that would lead to a finding that Mr Bishop should not be classified as a Qualified Firefighter (with Leading Firefighter Qualifications) on and from that date. I am satisfied in circumstances that it is appropriate that a finding be made that Mr Bishop’s reclassification should be on an from 30 November 2017. As with the findings of the Commission in Hanlon,22 the delays in the handling of Mr Bishop’s application were not due to his actions and there is no reasonable basis upon which a finding could be made that he should be disadvantaged through determination that the reclassification commence from some later date.

[11] Mr Bishop’s union, the United Firefighters’ Australia, set out in its submissions to me at this stage of the matter a Schedule of monies owing to Mr Bishop that would be consequential with the finding that he should be regarded as reclassified from 30 November 2017. That Schedule puts forward that Mr Bishop is entitled to payment of $12,683.67 comprised of the following elements:

● Ordinary hours/leave $9862.10
● Overtime $1884.67
● Superannuation $936.90

[12] Broadspectrum’s material did not address this aspect of Mr Bishop’s case and so as result it is not possible to determine at this stage the accuracy of the submission.

[13] As a result, an Order will be issued by me determining the dispute on the basis:

● That Mr Bishop was entitled to be classified at the level of Qualified Firefighter (with Leading Firefighter Qualifications) on and from 30 November 2017; and

● That within seven days of the date of this decision Broadspectrum is to file and serve a Schedule showing the amounts it says are due to Mr Bishop arising from the Commission’s decisions;

● In the event that Mr Bishop contests the Schedule filed and served by Broadspectrum he will be at liberty within the following seven days to seek to be heard on the subject; and

● In the absence of a request from Mr Bishop to be heard on the Schedule filed by Broadspectrum, the content of that Schedule will be accepted as final with payment of the amounts therein to be made to Mr Bishop within 21 days of the date of this decision.

COMMISSIONER

<PR706454>

 1   [2019] FWCFB 14.

 2   [2018] FWC 6230.

 3   AE417091.

 4   [2019] FWCFB 14, [23].

 5   Ibid, [8].

 6   Ibid, [14].

 7   Ibid, [15].

 8   Ibid, [19].

 9   UFU Outline of Submissions, [5].

 10   Ibid, [6].

 11   [2019] FWC 146.

 12   UFU Outline of Submissions, [7].

 13   [2019] FWC 146, [142].

 14   UFU Outline of Submissions, [8] – [16]

 15   Broadspectrum Outline of Submissions, [4] - [5].

 16 Ibid, [9] – [11].

 17   Ibid.

 18   Ibid, [4].

 19   [2019] FWCFB 14, [19].

 20   Ibid, [22].

 21   UFU Outline of Submissions, [5]; with reference to Appeal Book p.75.

 22   [2019] FWC 146, [142].

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