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

[2018] FWC 6230

[2018] FWC 6230

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, 9 OCTOBER 2018

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

[1] This decision concerns an application by Andrew Bishop, represented by the United Firefighters’ Union of Australia (UFU), pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement. The matters in dispute relate to Mr Bishop’s classification as an operational firefighter by his employer, Broadspectrum (Australia) Pty Ltd (Broadspectrum), which provides firefighting services at a number of defence force bases.

BACKGROUND

[2] Evidence was given in this matter by Mr Bishop on his own behalf as well as Colin Anderson Broadspectrum’s National Operations Manager.

[3] Mr Bishop is presently engaged as a Firefighter Level 3 by Broadspectrum performing work associated with its contract with the Australian Army at its Bandiana military base, in north-east Victoria. Broadspectrum (Australia) Pty Ltd was formally known as Transfield Services. Mr Bishop’s employment is subject to the provisions of 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). 1

[4] In summary, the dispute is whether or not service by Mr Bishop as a firefighter prior to his first engagement by the company that is now Broadspectrum should be taken into account in classifying him in employment with Broadspectrum.

[5] Mr Bishop refers to an earlier period of service as a firefighter which he argues should be taken into account in determining his classification. In particular, Mr Bishop argues that 10 years’ service as a paid firefighter when he was employed by the Melbourne Metropolitan Fire and Emergency Services Board (the MFB) between 1988 and 1998 is service to be taken into account.

[6] While arguing that this period of employment as a paid firefighter is relevant to the classification, Mr Bishop does not press that a period in which he was a volunteer firefighter with the Victorian Country Fire Authority (CFA) should be included for the purposes of classifying him under the Broadspectrum Agreement.

[7] Mr Bishop was employed by Transfield Services, since renamed to Broadspectrum, on 14 December 2015 at another base, Kapooka, which is near Wagga Wagga, NSW and is covered by another enterprise agreement. Mr Bishop’s initial employment with the Respondent was as a Firefighter Level 1.

[8] Mr Bishop’s relevant employment record is as follows:

•  January 1986 – January 1988 – Mr Bishop was employed as an Airport Firefighter with the Department of Aviation;

•  18 January 1988 – 11 December 1998 – Mr Bishop was employed by the MFB, leaving as a Senior Firefighter (with Leading Firefighter Qualifications);

•  1999 – 2015 – Mr Bishop worked elsewhere and as a Firefighter, including as an organiser with the UFU;

•  14 December 2015 – during 2015 Mr Bishop sought and obtained employment with Transfield Services at Kapooka, and was employed from 14 December 2015 pursuant to the terms of the Transfield Services Fire & Rescue NSW Agreement 2015;

•  6 December 2016 – Mr Bishop relocated employment with Broadspectrum to Bandiana, and his employment became covered by the Broadspectrum Agreement (noting that the employing entity did not change);

•  December 2016 – Mr Bishop unsuccessfully requested to be reclassified as a Qualified Firefighter;

•  14 December 2016 – he was reclassified to Firefighter Level 2, because of the enterprise agreement provision requiring such reclassification after 12 months service (cl.1.7, Definitions, “Firefighter Level 2”);

•  6 December 2017 – Mr Bishop lodged a grievance with his employer requesting reclassification to Qualified Firefighter with Leading Firefighter Qualifications; 2 and

•  December 2017 – Mr Bishop was reclassified to Firefighter Level 3, because of the Broadspectrum Agreement’s provision requiring such reclassification after 24 months service. 3

[9] There is also material before the Commission regarding Mr Bishop’s activities as a volunteer firefighter for the CFA. However, that material is inconclusive, both as to the periods and intensity of activity it relates to, as well as that ultimately it is said that “Broad Spectrum and the UFU don't recognise volunteer service” 4

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[10] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 5 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.6

[11] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 7 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”8

[12] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 9 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.10 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.11 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.12 However, the relief sought may cast light on the true nature of the dispute in some cases.13

[13] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 14 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.15

[14] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 16 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 17

[15] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 18

RELEVANT AGREEMENT PROVISIONS

[16] Four clauses in the Broadspectrum Agreement have relevance to determination of this dispute:

•  the classification definitions in Clause 1.7 (Definitions);

•  the provisions of clause 4.1, dealing with Career Paths and Opportunities;

•  the provisions of clauses 8.1 and 8.2, setting out matters of Skills Development and Training; and

•  the provisions of Appendix A, which provides a “Training Matrix”.

[17] The terms of the relevant parts of Clauses 1.7, 4.1 and 8.1 and 8.2 are set out below, however Appendix A is not reproduced in this decision.

•  From Clause 1.7 (Definitions)

“‘Firefighter Level 1/Watchroom Operator’, means an employee employed as a paid Firefighter with the Transfield Services Fire and Rescue Service Employed at the RAAF base East Sale and who has obtained the qualifications and modules for a Firefighter Level 1 set out in Appendix A -Training Matrix, a current Level 2 Senior First Aid Certificate or equivalent, and who may be undertaking training to obtain accreditation with the requisite Aviation Modules. This provision only applies to employees engaged prior to 30 June 2015.

At RAAF Base East Sale the following three provisions apply:

•  The primary role of a Firefighter Leve1/Watchroom Operator is to perform Watchroom duties.

•  A Firefighter Leve1/Watchroom Operator who has not obtained the requisite aviation modules within two (2) years shall be placed on shift rotation but may only respond to structural and/or wildfire incidents.

•  The Employer will pay all costs incurred in training a Firefighter Level 1/ Watchroom Operator in obtaining accreditation with the requisite Aviation Modules.

Note: A Firefighter Level 1/Watchroom Operator at the RAAF Base East Sale should, within two (2) years, acquire the requisite aviation modules and be assessed as competent to respond to an aviation incident.

“Firefighter Level 1” means an employee employed as a paid Firefighter with the Transfield Services Fire and Rescue Service and who has obtained the Firefighter Level 1 qualifications and modules set out in Appendix A - Training Matrix and a current St John Level 2 Senior First Aid Certificate or equivalent

“Firefighter Level 2” means an employee who has completed twelve months service as a paid Firefighter within the fire and rescue industry and has successfully completed all Firefighter Level 1 and 2 modules outlined in Appendix A - Training Matrix and assessment.

“Firefighter Level 3” means an employee who has completed 24 months service as a paid Firefighter within the fire and rescue industry and has successfully completed all Firefighter Level 1, 2 and 3 modules outlined in Appendix A - Training Matrix and assessment.

“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 outlined in Appendix A of this Agreement.”

•  From Clause 4

“PART 4 RATES OF PAY AND RELATED MATTERS

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.

(iii) At the RAAF Base East Sale, all classifications above that of Firefighter Level 1/ must have acquired accreditation with the requisite aviation modules.

4.1.1

(a) Employees engaged by the Employer who have been employed as professional career Firefighters in another service, including Defence Forces, within the previous two years, will have the classification they held in another service recognised as meeting the requirements of subclause (a) above at the relevant classification, provided that this has been recognised by the Department of Defence. Such recognition of skills will be the subject of assessment, incorporating Recognition of Prior Learning (RPL) and Recognition of Current Competencies (RCC) principles, and will not be unreasonably withheld.

(b) Employees shall not be entitled to apply for an appointed position until they have completed two (2) years‟ service with the Employer.

(c) When addressing promotion and recruitment procedures the Employer will in all circumstances, where practical, give priority to current employees within the service in Victoria progressing through to employees within the Employer generally.

Note: The employees of Bandiana who were previously employed by Compass Group maintain their right to bring a dispute about the interpretation of subclause (a) and the UFU has indicated it will do so on behalf of members.

4.1.2 Skills Enhancement Program

(i) The skills enhancement and skills maintenance program will reflect the various classification levels in this Agreement.

(ii) The skill levels will be based on the Public Safety Training Package Competencies (PSTPC) mandatory requirements and specific requirements to suit the business unit. The translation from the Australian Fire Competencies that currently apply will occur when the PSTPC are completed and legislatively required.

(iii) The Employer will facilitate a training/skills audit through a recognised training provider and develop a training/maintenance plan for the Fire and Rescue operations.

(iv) Development of the plan will be consistent with the consultative process contained in this agreement.

(v) An agreed recognised provider will deliver training in accordance with the plan.

4.1.3 Skills enhancement and skills maintenance program training shall be delivered by a Certificate 4 Workplace Trainer and Workplace Assessor.

4.1.4 For all Victorian bases (with the exception of Bandiana from the date of this Agreement begins to operate until 1 July 2016), the below will apply:

(i) If the Employer is unable to provide employees with the relevant training, employees will progress for time served, effective from the completion of the requisite 12 months for each level, as set out in Appendix A or as agreed between the parties.

(ii) Existing employees as at the time of approval of this agreement who have been unable to progress due to the non-provision of training up to the rank of Qualified Firefighter by the Employer, will back paid to the date they would have progressed if training had been made available.

(iii) For the purposes of i and ii above, once training becomes available, employees must get the required units within 18 months of the training becoming available or they will be demoted from their awarded classification to the classification to which they hold the appropriate qualifications. The period of 18 months may be extended by agreement between the parties. Agreement will not unreasonably be withheld.

4.1.5 For Bandiana from the date this Agreement operates until 1 July 2016 (after which clause 4.1.4 will apply), the below will apply:

(i) Provided that Fire Fighters obtain required qualifications either set out in Appendix A or as agreed between the parties and submit no later than 1 July 2016, all Fire Fighters covered by this agreement will be promoted to the rank held previous to their engagement with the Employer, subject to the availability of positions, and back paid to 1 July 2015. Any successful submissions received after 1 July 2016 will be paid from the date the submission is received by the Employer.

(ii) LFF positions will be appointed on merit in accordance with the appointment panel process set out in Appendix F.

(iii) Progression to a higher qualification, up to Qualified Fire Fighter, is based on a combination of service and qualifications, If the Employer is unable to provide relevant training to employees then payment at the appropriate level will be paid without the attainment of the necessary qualifications.

(iv) Should the Employer subsequently facilitate training, employees must obtain the qualifications within a reasonable period or be paid according to the highest classification based on qualifications attained by the individual as per Appendix A or as agreed between the parties. This may involve a reduction in their current pay.

(v) This progression in the above will occur from 1 July 2016 and be back paid to 1 July 2015. To be clear there is an expectation where training is available, the employee will complete the training required to the level of their classification.”

•  Clauses 8.1 and 8.2

“PART 8 TRAINING AND SKILLS DEVELOPMENT

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.

Employees may wish to undertake further training and development outside the boundaries of the Public Safety Training Package Competencies (PSTPC) framework to enhance the performance of both the individual and the Employer.

The Employer commits to upgrading, subject to approval from Department of Defence, the existing facilities at both Puckapunyal and East Sale for Hot Fire Training in consultation as per clause 2.1.1., or, where access to such a facility is not available, off-site hot fire training will occur at a nominated external hot fire training facility mutually agreed upon.

8.2 AUSTRALIAN FIRE COMPETENCY TRAINING

The Employer will, upon translation to the PSTPC from the Australian Fire Competencies, provide the Employer’s employees with consistent and relevant workplace training. This translation will take effect as required by legislation.

Employees will be required to carry out their duties in accordance with their skills, competencies and training. They will not be required to carry out duties for which a relevant competency or skill is required and which is not held by the employee.

Training will be delivered and/or accredited by:

● A Registered Training Organisation

● Approved Training Ground

● Any other approved training locations”

CONSIDERATION

[18] Mr Bishop’s position is that employees are able to progress within the Broadspectrum
Agreement’s classifications on the basis of experience in the firefighting industry and the qualifications held by them within the Australian Public Safety Framework. 19 The Applicant relies on his 10 years’ service with the MFB in the period of 1988 – 1998 as being sufficient to establish his case.

[19] The Applicant also contends that any service as a paid firefighter should be included when considering the Broadspectrum Agreement’s service requirements, with it being contended that service with the MFB would normally be considered as service as a paid firefighter within the meaning of Clause 1.7. 20 Mr Bishop also contends that there is no requirement that service be within a particular time period in order for it to be counted.21 Further, Mr Bishop submits that his service with the MFB should have been taken into account by Broadspectrum when he submitted his application for reclassification to the level of Qualified Firefighter (with Leading Firefighter Qualifications) on 14 December 2017.22

[20] The Applicant further argues that the Broadspectrum Agreement does not contain an ambiguity on the subject of service requirements, with it being the case that:

“21. The Agreement requirement simply requires that service be as a paid firefighter in order to satisfy the requirements in the clause. Had the parties intended to require that this service have been within a particular time period they could easily have done so. The parties elected not to impose a time limit on when service should be considered. It is submitted that no time limit should be read into the Agreement even if such a limitation were considered desirable.

22. Given that the Agreement has a plain meaning, evidence of the surrounding circumstances should not be admitted to contradict that meaning.” 23

[21] In contrast, Broadspectrum contend that “the period of time between [Mr Bishop] leaving the MFB was 20 years and [he] did not maintain competency in a professional fire service” 24 and that:

“Broadspectrum believes that there has been transparency with Bishop prior to commencing employment; that due to him not holding the required Public Safety Qualfications and currency of competency as an operational fire fighter in a professional fire service that Bishop must attain the qualification and work the periods of time as denoted in the Enterprise Agreements to progress. Bishop acknowledged and accepted these factors as evidenced by the signed acceptance and commencement of duties as Fire Fighter Level 1 and subsequent progression.

Broadspectrum does not consider that a period of 20 years gap between leaving the MFB and joining Broadspectrum an appropriate period of time to sustain competency. Competency was not maintained and was not in keeping with changes in technology, and changes in qualifications and requirements as per Public Safety. The qualification held previously with the MB is no longer recognised and does not count towards RPL for Public Safety.” 25

[22] Mr Anderson’s evidence included that when he engaged Mr Bishop, he advised him:

“I advised Andrew at the meeting his qualifications from the MFB would not be recognised with Broadspectrum as the qualification system in place at the time was not in line with the Public Safety Suite of qualifications we were now required to comply with.

I advised Andrew that he would be placed at Firefighter 1 level and we would not consider his previous employment with the MFB as it was 20 years ago and therefore expired from a competency perspective. His ability to gain a position with the company would be based on his current Public Safety Qualifications and his interview and other appropriate processes within recruitment.

Andrew accepted the company position stating he just wanted to work back in the industry as he felt he has much to offer and believed he could assist the younger firefighting generation.” 26

[23] Mr Anderson also noted that the Broadspectrum Agreement’s use of the Public Safety Training Package was a change from the previous Australian Fire Competency Package and that, with reference to Clause 8.2, providing as it does:

“PART 8 TRAINING AND SKILLS DEVELOPMENT

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.”

[24] His arguments in relation to this provision included that:

“Broadspectrum and the UFU also agreed no current firefighter would be disadvantaged whilst transitioning to the Public Safety Training Package from the Australian Fire Competency Standards. This was agreed as there were some significant differences between the two systems.

Unfortunately, Andrews qualifications were pre- AFC competency making it impossible for him to be considered to have time in service aligned with Public Safety.

At the time Public safety was introduced there were discussions as to whether people should be entitled to hold their classification held in AFC such was the concern for the difference in the two systems.” 27

[25] Mr Anderson further noted that this contention comes from the text of the Appendix providing for “no employee disadvantage” which is in these terms:

“1. Introduction

TRAINING MATRIX

Parties agree to review the matrix provided in this appendix, all changes must be agreed between the parties.

No employee is to be disadvantaged due the introduction of the matrix or a change to the name of any Public Safety unit contained in it.”

[26] Broadspectrum do not specifically address the matter of an ambiguity within the Broadspectrum Agreement.

[27] In giving his oral evidence, Mr Anderson put forward his understanding of the intended operation of the Broadspectrum Agreement:

“The fact of the matter is Andrew came from the MFB where they had their own internal set of qualifications. He then transferred those qualifications into public safety, had a volunteer period of time in the CFA volunteer service. So for me we treated him exactly the same as we would treat a CFA volunteer. Yes, we will take your qualification but we will not take your time in service. And that is how we looked at his application and that is how he got a job as a level one fire fighter with us. Because 17 years out of the industry with a set of qualifications that had no relevance to public safety - the ones that we now use - and getting those qualifications in being a volunteer organisation is not something that we recognise.” 28

[28] The principal clause in dispute in this matter is the meaning and application of Clause 1.7 which provides the definitions of certain classifications, and in particular, the definitions of “Qualified Firefighter” and “Qualified Firefighter (with Leading Firefighter Qualifications)”. Each of those definitions is reliant on the provisions of Appendix A, which provides the Training Matrix, and Clauses 8.1 and 8.2, which set out matters associated with training skills and development.

[29] Consistent with the principles in Berri, set out above, the first matter for consideration is whether or not there is an ambiguity in the relevant terms. Admissible extrinsic material may be considered both to establish the presence of an ambiguity as well as to resolve one. There is no such admissible evidence before the Commission. To the extent that Mr Anderson’s beliefs about the operation of the Broadspectrum Agreement may be firmly held, or even accurate, those matters are not “evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement”. Instead, Mr Anderson’s evidence may be regarded as merely the subjective intentions of Broadspectrum.

[30] Further, consideration of the clauses in question does not lead to the proposition that they are ambiguous. The definitions within Clause 1.7, even in the light of their consideration in conjunction with Appendix A and Clauses 8.1 8.2 are not susceptible of more than one meaning. The definitions set out the expectation that an employee is to be classified after consideration of two attributes, namely their service “as a paid Firefighter within the fire and rescue industry” as well as successful completion of and assessment in accordance with certain training modules pertinent to each classification, as set out within Appendix A. The definitions are to be read in conjunction with the matters set out in Clauses 8.1 and 8.2 as well as the listed modules within Appendix A.

[31] Whereas the Applicant focuses upon his service with the MFB, 17 years earlier, he potentially overlooks the conjunctive requirements of the classifications to which he aspires:

•  In the case of Qualified Firefighter there is a necessity to not only have a minimum 36 months service as a paid firefighter, but also successful completion of all of the Levels 1, 2 3 and Qualified Firefighter modules specified in the Appendix A; and

•  In the case of a Qualified Firefighter (with Leading Firefighter Qualifications) it is necessary for a person to not only meet the Qualified Firefighter threshold, but also to have completed all Level 1, 2 3, Qualified and Leading Firefighter modules and also have undertaken the assessments that would make the person eligible for promotion to a leading Firefighter; again, as set out in Appendix A.

[32] Those matters however, do not address the fundamental question argued by Broadspectrum in these proceedings which is whether it is possible for a person who has been out of the firefighting industry for as long as Mr Bishop has to be able to draw upon their prior service, howsoever long ago it may have been. In Mr Bishop’s case, this would mean drawing on service undertaken more than 17 years earlier as sufficient “service” for the purposes firstly of employment by Broadspectrum and secondly promotion through the lower levels of the classification system.

[33] Consideration of the meaning of the provisions within the definitions in Clause 1.7 does not lean to adoption of the Respondent’s arguments on this matter.

[34] The disputed provisions are the words which state, in each case, that attainment of a particular classification is completion of “service as a paid Firefighter within the fire and rescue industry”. Neither the word “service” nor the term “fire and rescue industry” are defined in the Broadspectrum Agreement.

[35] Firstly, it must be observed that had there had been an intention for the Broadspectrum Agreement to limit the service that may be drawn upon for the purposes of employment and classification, then it is more than likely the case that the Broadspectrum Agreement would have said so and would have specified precisely what is to be included and what is to be excluded. If one were to take the view that service which has occurred more than 17 years prior to employment is to be disregarded, at what point does that disregard commence? Could it be the case that an employee absent from the firefighting industry for 10 years might find their service not to be taken into account? Or is the threshold as low as perhaps only 4 or 5 years?

[36] While there is some attraction to the argument put forward by Broadspectrum that a period of 17 years out of the industry is simply too long for that service to be had regard to, there is nothing within the provision in question that would allow such a construction.

[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.

[38] The questions posed above illustrate the practical difficulties and potential injustices which would follow from an acceptance of the Broadspectrum position. It would become the case that acceptance or disregard of prior service at the point of employment of a new firefighter by Broadspectrum would be simply something left to the company’s own choosing.

[39] Whereas such proposition may well have been what the employer wanted, it would follow that if such were to be the case, then the definitions the lower firefighting classifications would likely have been framed somewhat differently. In the alternative, and if it were intended that service would be disregarded prior to some arbitrary point, let’s say 10 years before employment, it would be the case that the definitions would be drafted to reflect that intention.

[40] In returning to the second part of the definitions in dispute, namely the obligation to have completed certain training modules and assessments, it is noted that Clauses 8.1 and 8.2 set out important objectives for the Broadspectrum Agreement as a whole and the classification definitions in particular. The clauses are set out below, with the parts relied upon as important objectives being underlined:

“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.

Employees may wish to undertake further training and development outside the boundaries of the Public Safety Training Package Competencies (PSTPC) framework to enhance the performance of both the individual and the Employer.

The Employer commits to upgrading, subject to approval from Department of Defence, the existing facilities at both Puckapunyal and East Sale for Hot Fire Training in consultation as per clause 2.1.1., or, where access to such a facility is not available, off-site hot fire training will occur at a nominated external hot fire training facility mutually agreed upon.

8.2 AUSTRALIAN FIRE COMPETENCY TRAINING

The Employer will, upon translation to the PSTPC from the Australian Fire Competencies, provide the Employer’s employees with consistent and relevant workplace training. This translation will take effect as required by legislation.

Employees will be required to carry out their duties in accordance with their skills, competencies and training. They will not be required to carry out duties for which a relevant competency or skill is required and which is not held by the employee.

Training will be delivered and/or accredited by:

● A Registered Training Organisation

● Approved Training Ground

● Any other approved training locations”

[41] It may be drawn from these clauses that training of any person employed under the Broadspectrum Agreement is not to be regarded as something static or established at a particular point in time. It may be foreseen from the commitment between the parties that there will be ongoing technological change having a significant operational challenge with a concomitant to ongoing training and assessment requirement.

[42] With its reference to appointment being in accordance with an employee’s qualifications, Clause 4 does not cause a departure from the likely intention of Clauses 8.1 and 8.2; being to reinforce the importance of contemporary skills and competencies to meet changing demands.

[43] Appendix A contains what is referred to as the Training Matrix, listing a large number of Public Safety Training Modules both by name as well as module number. The Appendix lists these for the Public Safety Training Package Certificate II Public Safety, referable to Firefighter Level 1 and Level 2; Public Safety Training Package Certificate III, Public Safety Training Package Certificate IV and the Public Safety Training Package Diploma of Public Safety.

[44] The approved version of the Broadspectrum Agreement lists the modules to be completed in respect of each of these different packages in different colours, with information at the bottom of each list about what is to be required for promotion to certain levels.

[45] In the case of Mr Bishop, in order to be eligible to be a Qualified Firefighter, he must have demonstrated that he has completed all level 1, 2, 3 and Qualified Firefighter modules. In addition to these requirements, in order to be eligible to be a Qualified Firefighter (with Leading Firefighter Qualifications) he must also have completed and been assessed as competent in the Leading Firefighter modules and assessments.

[46] Listed in red in the Certificate III package, being the “Qualified Fire Fighter required units (Incorporating fire fighter levels 2&3)”, are the following five modules:

“PUAFIR302B Suppress urban fire

PUAFIR306B Render hazardous materials incidents safe

PUAFIR308B Employ personal protection at a hazardous materials incident

…

PUATEA002 Work autonomously

…

PUASAR002B Undertake road accident rescue

…”

[47] The Certificate IV package lists a single Qualified Firefighter required unit, namely “PUAFIR403A Assess building plans” and refers to the following 3 “Leading Fire fighter required units”;

“PUAOPE001A Supervise Response

PUAOPE004A Conduct briefings/debriefings

PUATEA003A Lead, manage and develop teams”.

[48] At the time he made his originating application to the Commission, Mr Bishop filed various materials supporting his application, including a number of certificates of attainment relating to his training competency.

[49] Within those materials is a Certificate of Service from the MFB, dated 16 June 2003 stating that Mr Bishop “attained the rank of Senior Firefighter (with Leading Firefighter Qualifications)”. While that document establishes Mr Bishop’s period of employment and final classification at the time he left the service, on 11 December to 1998, I do not take it into account in forming a view about his training and competency for the purposes of the Broadspectrum Agreement.

[50] However, there are a number of Statements of Attainment from two different providers relating to Mr Bishop’s training and competencies in 2016 and 2017. It is unclear on the basis of the material before me whether these are the totality of the modules completed by Mr Bishop and assessed by a person qualified to do so. Within the same material filed by Mr Bishop is a “self-assessment checklist” which would suggest that Mr Bishop has completed perhaps more modules than an accredited provider has assessed him as having completed. Given that the Broadspectrum Agreement definitions refer to a person as having either “successfully completed all Level 1, 2, 3 and Qualified Firefighter modules outlined in Appendix A – Training Matrix and Assessment” in the case of a Qualified Firefighter, or who has “completed all Level 1, 2, 3, Qualified and Leading Firefighter modules … and assessments eligible for promotion to Leading Firefighter” in the case of a Qualified Firefighter (with Leading Firefighter Qualifications) it follows that regard should only be had to those modules that have been completed and which are the subject of proper assessment.

[51] On the basis of the material filed by Mr Bishop, there appears to be demonstrated completion and assessment of only some of the required modules:

Certificate III package, Qualified Fire fighter modules:

● PUAFIR302B Suppress urban fire – certified as assessed by SETS Enterprises on the basis of Recognition of Prior Learning, 9 November 2017

● PUAFIR306B Render hazardous materials incidents safe – no evident certification of assessment

● PUAFIR308B Employ personal protection at a hazardous materials incident – certified as assessed by SETS Enterprises on the basis of Recognition of Prior Learning, 9 November 2017

● PUATEA002 Work autonomously – no evident certification of assessment

● PUASAR002B Undertake road accident rescue – certified as assessed by SETS Enterprises on the basis of Recognition of Prior Learning, 9 November 2017

Certificate IV Public Safety

Qualified Firefighter required unit

● PUAFIR403A Assess building plans – no evident certification of assessment

Leading Firefighter required units

● PUAOPE001A Supervise Response – no evident certification of assessment

● PUAOPE004A Conduct briefings/debriefings – no evident certification of assessment

● PUATEA003A Lead, manage and develop teams – has been assessed as having attained the competencies for module PUTEA003B – lead, manage and develop teams, with assessment being provided by SETS Enterprises on the basis of Recognition of Prior Learning, 27 November 2017

[52] Consideration of the foregoing matters would lead to the conclusion that it is unlikely Mr Bishop has completed training for the required modules or has been assessed as having met their competencies. While it could be argued by him that some elements of those listed competencies were met and assessed in the course of his employment with the MFB, firstly there is no direct evidence of that before the Commission, and secondly it is to be noted that such proposition would broadly be inconsistent with the obligations of Clauses 8.1 and 8.2 which is to establish a framework of ongoing training and assessment in order to meet Broadspectrum’s prospect of ongoing technological change, with the requirement being to meet the competencies of specifically named current modules. There is nothing before the Commission that would allow a finding that competencies established years ago with the MFB are equivalent to those within the currently defined modules.

[53] Again, had the Broadspectrum Agreement been intended to operate with a point in time analysis along the lines that once a person had been trained at some point in the past there would be no need for them to establish competency at some future time, then it can be assumed that the Broadspectrum Agreement would have said so.

[54] However, the Broadspectrum Agreement says no such thing. Instead it provides that a person is eligible for classification once they have completed “service as a paid Firefighter within the fire and rescue industry” and they have successfully completed and been assessed on the specified modules. The definitions do not provide that this is an “either/or” circumstance in which there may be one attribute present but not the other. Instead the definitions provide for the conjunction of both demonstrated service as well as demonstrated completion and assessment in accordance with the specified training competency modules.

[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).

[56] I determine the dispute on the basis that I am not presently satisfied Mr Bishop is eligible for reclassification to either the level of Qualified Firefighter or Qualified fighter (with Leading Firefighter Qualifications).

COMMISSIONER

Appearances:

Mr J. Murphy of the United Firefighters’ Union of Australia for the Applicant.

Ms M. Soncini for the Respondent.

Hearing details:

2018.

8 August;

Melbourne.

Final written submissions:

17 August 2018 and 3 September 2018.

Printed by authority of the Commonwealth Government Printer

<PR701127>

 1   AE417091.

 2   Exhibit R1, Respondent’s Outline of Submissions, [9]-[16].

 3   Ibid, [17].

 4   Transcript, PN 119.

 5   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

 6   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

 7   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 8   SDA v Big W Discount Department Stores PR924554 at [23].

 9   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

 10 Ibid [47].

 11   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 12   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

 13   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 14 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

 15   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 16   [2017] FWCFB 3005.

 17 Ibid [114].

 18   [2017] FWCFB 4537.

 19   Exhibit A1, Applicant’s Outline of Submissions, [5].

 20   Ibid, [12].

 21   Ibid, [15].

 22   Ibid, [17].

 23   Ibid.

 24   Exhibit R1, [16]

 25   Ibid, p.3.

 26   Ibid, Attachment 4(d).

 27   Ibid.

 28   Transcript, PN 152.