Country Fire Authority v United Firefighters' Union of Australia

[2013] FWC 7509

[2013] FWC 7509 [Note: Appeals pursuant to s.604 (C2013/6373 & C2013/6411) were lodged against this decision - refer to Full Bench decision dated 13 February 2014 [[2014] FWCFB 410] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Country Fire Authority
v
United Firefighters’ Union of Australia
(C2013/4118)

COMMISSIONER WILSON MELBOURNE, 27 SEPTEMBER 2013

Alleged dispute regarding payment of bargaining representatives.

[1] The Country Fire Authority (CFA) seeks determination of the payments that are due to employees working under the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (AE881690) (Operational Staff Agreement) and involved in the current enterprise bargaining meetings and consultation processes.

[2] The application in this matter is made pursuant to s.739 of the Fair Work Act 2009 (the Act) and was filed by the CFA on 30 April 2013. It was initially dealt with by Commissioner Roe in conjunction with an application under s.240 of the Act made by the United Firefighters Union of Australia (UFU) on 26 April 2013 1. However, the issue of payment arrangements for bargaining representatives was not resolved and was instead referred for arbitration in accordance with a Recommendation issued by Commissioner Roe on 21 May 2013.

[3] The CFA submits that the issue to be resolved is whether the arrangements that the Authority proposes in relation to the release of bargaining representatives and in relation to receipt by them of pay and provision of transport/travel allowances in connection with bargaining meetings are in accordance with the terms of the Operational Staff Agreement 2.

[4] The CFA application seeks for the Commission to deal with a dispute pursuant to s.739 of the Act. That section allows for disputes to be dealt with if, read in conjunction with s.738, an enterprise agreement includes a term that provides a procedure for dealing with disputes that “requires or allows the FWC to deal with a dispute”. Paragraph 15.2.6 of the Operational Staff Agreement provides the following, with reference to a “matter” that has been raised as a dispute or grievance by the parties in accordance with subclause 15.2;

“15.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute”.

[5] The paragraph is the fifth step in the dispute resolution procedure and is a term that “requires or allows the FWC to deal with a dispute” in the manner prescribed by s.739 of the Act.

[6] The critical issue in this matter is the operation of clause 17 of the Operational Staff Agreement which provides as follows:

17. CONDITIONS FOR EMPLOYEES PARTICIPATING IN CONSULTATION ETC

17.1. This clause applies to employees participating at any level of consultation the referred to in this agreement or participating in any meeting or forum (such as conciliation or hearings) pertaining to the employment relationship, to the relationship between the parties or arising under this agreement.

17.2. Employees will be paid for all such time spent participating as if they were performing work during that time.

17.3. Where the UFU nominees are serving CFA employees the following will apply:

17.3.1. When the employee is on duty arrangements will be made to facilitate his or her attendance at meetings without loss of pay.

17.3.2. When a meeting occurs while the employee is off duty, the employee will be paid for the time involved at overtime rates.

17.4. When a UFU representative who is a CFA employee travels to a meeting on days when the person is not on duty, the following shall occur;

17.4.1. Without inconvenience to the employee, the person shall be provided with a vehicle to enable him / her to travel to the meeting. This shall be by way of CFA car or hire car to travel to and from the meeting. If the above is not provided, the person may by agreement use his / her own vehicle and receive the appropriate vehicle allowance as prescribed in the agreement for each kilometre travelled.

17.4.2. In the case of a person who requires air travel he / she shall be provided with air travel from his / her location to Melbourne and return. Such transport shall be arranged and paid for by the CFA. Travel to and from the airport to the meeting venue shall be provided by way of car hire or taxi as appropriate.

17.4.3. Payment for travel time shall be provided for in accordance with the agreed schedule of distances based on the distance between the persons work location or home location (wherever they are leaving from/returning to) and the location at which the meeting is being held.

17.4.4. Payment for the time spent flying to and from the person's location to Melbourne Airport will be paid for at single time rates. In addition, the agreed schedule of distances allowance is to be paid for travel from Melbourne Airport to the meeting and return as determined by the allowances clause of this agreement.

17.4.5. Employees travelling to and from the same work location are to travel in the same vehicle wherever possible.

17.4.6. The above matters with the exception of payment of airfares and transport for employees requiring air travel and vehicle allowance for the use of private vehicles are to apply when CFA employees who are UFU representatives attend meetings on days when they are not on duty.

17.4.7. If an employee is required to travel more than 100 kilometres or for more than two hours to get to a meeting, the meeting shall not start earlier than 10 a.m.

[7] The CFA submissions include that subclauses 17.3 and 17.4 are objectionable terms within the meaning of Act and cannot be relied upon in order to determine the payments that should be made to bargaining representatives. The CFA submits that subclauses 17.1 and 17.2 are operable. It also submits that even if subclauses 17.3 and 17.4 were valid, they do not confer entitlement upon employees.

[8] The effect of these submissions is the following:

“2. The arrangements which the CFA proposes should apply in relation to the release of bargaining representatives and in relation to receipt by them of pay and provision of transport in connection with bargaining meetings are as follows:

(a) Subject to operational requirements, if a bargaining representative is rostered on duty during a time that a bargaining meeting is to be held, CFA will release the bargaining representative to enable them to attend the bargaining meeting.

(b) A bargaining representative that attends a bargaining meeting will be paid at their ordinary rate of pay for the time spent participating in the bargaining meeting.

(c) Regardless of whether or not a bargaining representative is rostered on duty during the time a bargaining meeting is held, CFA at its option will either provide a CFA vehicle to a bargaining representative to attend the bargaining meeting concerned or pay kilometre allowance in respect of the use of the bargaining representative's own vehicle for that purpose. Bargaining representatives shall car pool with other bargaining representatives where that is practical, and if they do not they will not be entitled to the benefit of this clause.”

(d) CFA will not make any payment of remuneration in relation to the time spent by a bargaining representative in preparation for a bargaining meeting or in travelling to and from a bargaining meeting.” 3

[9] The UFU contend about the payment arrangements that;

“...clause 17 must be construed as applying to EBA negotiation meetings and that employees who were:

(a) on duty and attended such meetings would be entitled to payment and travel allowances;

(b) off duty and attended such meetings would be entitled to payment at overtime rates and travel allowances.” 4

Consideration

[10] Resolution of a dispute about an enterprise agreement requires consideration of the agreement within the context of the prevailing legislation. In addition to s.739, the CFA drew attention to s.356 which deals with “objectionable terms” in enterprise agreements. The CFA argued that the conjunction of the two sections necessarily means any decision the Commission may make in relation to this dispute will be constrained by the provisions of s.356, which must be read together with the definition of “objectionable term” contained in s.12 of the Act, The Dictionary. Jointly the provisions are as follows;

356 Objectionable terms

A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.

objectionable term means a term that:

(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or

(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;

either of the following:

(c) a contravention of Part 3-1 (which deals with general protections);

(d) the payment of a bargaining services fee.

[11] The Operational Staff Agreement was approved by Commissioner Roe on 21 October 2010 under the provisions of the Act applying at the time 5. The Agreement was approved without any undertakings and had an operative date of 28 October 2010 and a Nominal Expiry Date of 30 September 20136.

[12] Part of the material in evidence before the Commission as presently constituted is a copy of the Form F17 (Employers’ Declaration in Support of Application for Approval of Enterprise Agreement) that was also before Commissioner Roe in his consideration of the application for approval of the Operational Staff Agreement.

[13] The Employers’ Support Declaration was made by Michael John Bourke who is Chief Executive Officer of the Country Fire Authority. His declaration was made under the Statutory Declarations Act 1959 (Cth), and is dated 6 October 2010. Part of Mr Bourke’s statutory declaration was the following;

“2.15 Does the agreement contain any objectionable terms? (s.194(b))

[ ] Yes

[x] No

If the answer is “Yes”, please identify the relevant terms of the agreement:” 7

[14] In the course of the hearing, the CFA was asked how it was that their Chief Executive’s Employer Support Declaration for the Agreement in 2010 asserted the proposed agreement contained no objectionable terms, yet the Authority now said it did. In reply, the CFA argued that Mr Bourke was being called upon at the time to make a statement about a complex legal issue and that he may not have been aware of what he was declaring. With respect, this is not a helpful or adequate response. Mr Bourke is still the Chief Executive Officer of the Authority. He was not called to give evidence in these proceedings. Neither was a comprehensive explanation provided as to how he formed his view in 2010 and what advice might have led to that view. Neither were submissions provided about how subsequent advice or changes in the law might reasonably lead to the different view now being submitted.

[15] This situation is not altogether satisfactory given the central role which approval of agreements has both within the current legislation and that applicable at the time of approval, in October 2010. The requirement for an employer to complete an Employer Support Declaration in the form of a statutory declaration is also not new. The Chief Executive Officer of an organisation making a declaration to the Commission has a responsibility both to the Commission as well as their own organisation to ensure that the material declared is accurate and not misleading. In addition, the tribunal is entitled to receive declarations as evidence to be relied upon in exercising the statutory functions under the Act.

[16] The CFA submits that subclauses 17.3 and 17.4 are objectionable because of the references they contain to “the UFU nominees”, in the case of subclause 17.3, and “a UFU representative”, in the case of subclause 17.4. The CFA submissions in respect of the objectionable nature of the causes included;

“10. It is plain that clauses 17.3 and 17.4 condition the entitlements which they prescribe on the employee claiming the entitlements having the status of a UFU nominee (cl.17.3) and a UFU representative (cl.17.4). They are merely one example of a regrettable scheme of provisions in the Agreement intended to confer privileges and benefits on employees of CFA who are members of the UFU by virtue of that membership which have no parallel for CFA employees who choose or who may otherwise choose not to be UFU members: see for example clauses 13.2, 13.3 13.4.2 and 13.4.5. There can be no doubt that both the expressions UFU nominee and UFU representative refer to an employee of CFA who is a member of the UFU and has been selected by the UFU to represent the UFU, that is to stand in the shoes of the UFU.” 8

[17] The approval processes under the Act for enterprise agreements that were operative in October 2010 are substantially the same as those now in force. Subsection 186(4) and s.194 were relevant to approval and the issues now in dispute. Subsection 186(4) required the tribunal to be “satisfied that the agreement does not include any unlawful terms” and s.194 provides (in part);

194 Meaning of unlawful term

A term of an enterprise agreement is an unlawful term if it is:

(a) a discriminatory term; or

(b) an objectionable term; or

…

[18] Once approved, an enterprise agreement has considerable force and effect. Section 50 of the Act provides that a person must not contravene a term of an enterprise agreement. However, a term of an enterprise agreement has no effect to the extent that it contravenes the national employment standards 9 or to the extent that “it is an unlawful term”10 with “unlawful term” having the same meaning as that prescribed by s.194 which, as indicated above, includes those things which are “an objectionable term”.

[19] While the agreement approval processes both in 2010 and now allow or require the tribunal to take into account a variety of potential problems or defects, as well as benefits, once an agreement has been approved, it stands (with the limitations indicated above) irrespective of any failings or defects it might continue to contain. The obligation on a person bound to an enterprise agreement is to act in such a way that they do not contravene a term it contains. While of course it is open to a party to form a view that a clause is in contravention, say, of the national employment standards, or that it contains an unlawful term, ultimately whether or not it can be found that the enterprise agreement contains such terms, or that a party is entitled not to follow a questionable term, is a matter for determination by a Court.

[20] In dealing with this particular application, which is pursuant to s.739 of the Act, I must have regard to the whole of the section and in particular s.739(5) which deals with the possibility of making a decision which is inconsistent either with the Act or an agreement. The section provides as follows;

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute. (emphasis added)

[21] Resolution of this matter requires a construction of a clause agreed by the parties and contained within an agreement approved by the Fair Work Commission. In doing so, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning 11, with extrinsic evidence admissible in some circumstances in an endeavour to remove that ambiguity;

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.” 12

[22] This proposition was recently considered within the context of the interpretation of provisions within enterprise agreements by the FWC Full Bench in the matter of Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths 13, in which it was said;

“[12] It is undoubtedly the case that, in resolving a dispute as to the interpretation of a provision of an enterprise agreement approved under the Fair Work Act 2009, it is permissible to take into account the industrial context and purpose of the agreement. However, there are two important limitations upon this approach relevant to the determination of this appeal. The first is that the process of interpretative analysis must focus, first and foremost, upon the language of the agreement itself. For example, in Amcor Limited v CFMEU, the process was described by Gleeson CJ and McHugh J in the following terms: “The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...”. Or, as Kirby J put it in the same case, “Interpretation is always a text-based activity”. 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 re-write the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. The oft-quoted statement of Madgwick J in Kucks v CSR Limited makes this clear:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[13] The second limitation is that regard cannot be had to the respective subjective intentions and expectations of the parties as demonstrated by their “statements and actions” in negotiating the agreement. Rather, the task is to identify the common intention of the parties as they have expressed it in the terms of their agreement. In the context of commercial contracts, this task was described by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd in the following way:

“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”

[14] The above passage was treated as part of a “practical approach” according with the established approach to the construction of industrial agreements in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited.” (references omitted)

[23] In considering the matters that are the subject of the application, it is appropriate to not only consider the matters referred to above, but also to take account of the matters set out in ss. 577 and 578 of the Act which relate to the performance of functions by the Fair Work Commission and matters the Commission must take into account in performing its functions;

577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a

manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs

its functions and exercises its powers efficiently etc. (see s. 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[24] In identifying the “common intention of the parties” as expressed in the terms of the agreement, the agreement necessarily stands within the context of the Act, which, of course, included the provisions relating to objectionable terms. Given there is potentially a conflict between the words of the agreement and the requirements of the Act, and that resolution of the conflict is critical to determination of the dispute in this matter, it is necessary to take account of what the parties sought when they brought the agreement for approval. The performance of functions by the Fair Work Commission in a manner that is fair and just and takes account of equity, good conscience and the merits of the matter leads to the view that at 6 October 2010, which is the date of the Employer Support Declaration;

• the CFA intended its organisation to be bound to the Agreement it submitted for approval;



• the CFA intended its organisation to pay a certain scheme of payments to employees who attended consultation meetings; and



• the CFA intended payments to be made not only to employees who were on-duty at the time of the meeting, but also to employees who were off-duty, with different arrangements applying to each group.

[25] As a result, such construction as I now develop should take account of, and continue to give life to, what the CFA intended at the time of their application to the Commission for approval of the enterprise agreement. I consider that to do otherwise would be to not observe the Commission’s obligations under either s.577 or s.578 of the Act.

[26] The question for resolution in this matter is what payments are due to employees involved in the current enterprise bargaining meetings and consultation processes. As referred to earlier, this is a question for resolution under s.739, and the resolution of the question must be in a way that is neither inconsistent with the Act, or the Operational Staff Agreement.

[27] An inconsistency with the Act, within the context of this matter, will arise, if at all, as a result of the operation of s.356, which requires that a term of a workplace instrument has no effect to the extent that it is an objectionable term. A “workplace instrument” includes an instrument made under the Act 14, and so includes the Operational Staff Agreement.

[28] As referred to above, the things that might be an “objectionable term” include a term that permits a contravention of the Act’s Part 3-1, which deals with general protections. The CFA submits that the scheme of the Operational Staff Agreement when viewed in the context of Part 3-1 is the following;

“14. Clauses 17.3 and 17.4 in affording the entitlements they prescribe on the basis of whether or not the employee claiming the entitlement is a UFU nominee and UFU representative respectively discriminate between (that is, treat differently) an employee who is a union member and an employee who is not. Accordingly, they are provisions that require or have the effect of requiring a contravention of s.346 or at least purporting to do so, or alternatively of permitting or, have the effect of permitting such a contravention or at least of purporting to do so. That being so, the terms are to be classified as "objectionable terms" which are of no effect: see ss 253(1)(b) and 356 of the FW Act”. 15

[29] In forming a view on what is meant by the phrase “the extent that it is an objectionable term”, I note the finding of Gordon J in Klein v Metropolitan Fire and Emergency Services Board, in relation to elements of the definition of “objectionable term”;

[221] “Permit” in the definition of “objectionable term” has been construed to mean “authorise”, rather than “afford the possibility”: Australian Industry Group v Fair Work Australia(2012) 205 FCR 339 at [18] and [66]. A clause may require or permit conduct in contravention of Pt 3-1 of the FW Act “either directly or by necessary implication: Australian Industry Group at [17]-[19] and [66].” 16

[30] I also note that “extent” as a noun can mean “the space or degree to which a thing extends” and “term” as a noun can mean “any word or expression used to name something ...” 17.

[31] I take into account that in approval of agreements, the identification of a potentially objectionable term raised prior to approval can been cured through an appropriately worded undertaking in accordance with s.190 of the Act. Such a circumstance might arise if the Commission has a concern that an agreement does not meet the requirements set out in sections 186 or 187. The concern may be that the agreement contains an unlawful term, which is referred to within s.186(4). Pursuant to s.191(2), the effect of an undertaking accepted by the FWC is that the undertaking is taken to be a term of the agreement.

[32] In this particular case, if there had been a concern about the agreement’s content and an undertaking had been given to the Commission at the time approval was considered, the agreement would most likely have been approved with a suitably agreed modification. Plainly the form of an undertaking is at the discretion of the parties, however, it could be modest.

[33] As a result, I am satisfied that, in resolving the question before me that the extent of the term can properly be given a narrow construct and that it is not necessary, at least for the purposes of dealing with a dispute under s. 739, to take the view that the phrase “the extent that it is an objectionable term” has to be applied as if the objectionable taint of any part of a sentence, paragraph or clause means that the entire sentence, paragraph or clause is objectionable.

[34] The CFA argues that the phrases “[w]here the UFU nominees are serving CFA employees...” 18 and “[w]hen a UFU representative who is a CFA employee ...”19 together with all the words that follow are objectionable because they discriminate between an employee who is a union member and an employee who is not. Inclusion of the abbreviation “UFU” in each case gives rise to this possibility. Viewed objectively within the context of the legislation and taking into account the way agreements are formed or not; how discrimination may arise or not; and how entitlements are reinforced, I agree the term is most likely inconsistent with the Act.

[35] The face of the subclauses and their interaction both with s. 346, which prohibits the taking of adverse action against a person because they are or are not a member of the union, and s. 342, which defines the meaning of “adverse action” and relevantly includes the circumstance of an employer injuring an employee in their employment, leads to the construction that the subclauses are at least discriminatory and probably objectionable, insofar as they purportedly provide a benefit to UFU members and not to others.

[36] However, the extent of the problem is confined;

• Subclause 17.3 contains a lead-in statement together with two short parts. The only place in which the union, and therefore the purported objectionable context, is referred to is within the phrase “[w]here the UFU nominees are serving CFA employees...”.



• Subclause 17.4 is longer, and contains a lead-in statement together with seven substantive parts. Again the only reference within the subclause to the union is the lead in statement “[w]hen a UFU representative who is a CFA employee ...”.

[37] In forming a view about the proper operation of the two clauses I have taken into account the obligation I have under s.739(5) of the Act not to make a decision that is inconsistent with the act or the Operational Staff Agreement; the obligations I have under sections 577 and 578 of the Act in regard to fairness and justice and consideration of equity, good conscience and the merits of the matter; together with the conduct and intentions of the CFA in 2010 when the Authority sought the tribunal’s approval of the Operational Staff Agreement.

[38] It follows therefore that the two subclauses can be rendered unobjectionable through a construction that would remove in each case the abbreviation “UFU”. That is the two phrases referred to should be applied in the workplace as if they are constructed as follows;

Subclause 17.3 “Where the nominees are serving CFA employees the following will apply:”

Subclause 17.4 “When a representative who is a CFA employee travels to a meeting on days when the person is not on duty the following shall occur;”

[39] I note that such an interpretation and application of each subclause does not, within the context of the remainder of the clause, offend or render insensible, the other parts of the clause. I also note that the phrases “UFU nominee” and “UFU representative” (in both the singular and plural) are used in several other parts of the Operational Staff Agreement. The dispute being dealt with in this case is in respect only of clause 17 (Conditions for Employees Participating in Consultation etc) and I make no comment as to how my resolution of this question might apply to the other places in the Operational Staff Agreement in which those phrases are used.

[40] As a result of the construction I have given to subclauses 17.3 and 17.4, the agreed provisions are, on their face, clear. In summary I find that clause 17 operates in the following way;

• Subclause 17.1 – The subclause states the application of the clause and in particular that it applies to “employees participating at any level of consultation referred to in this agreement or participating in any meeting or form”. This is capable of applying to persons participating in bargaining meetings for the purposes of the Act.



• Subclause 17.2 – The subclause establishes the legal fiction that “employees will be paid for all such time participating as if they were performing during work that time”. That is, employees are to be paid as if at work even when they are not at work. The subclause needs to be read within the context of the remainder of the clause, and in particular subclause 17.3 and 17.4, both of which provide detailed arrangements in order to give effect to the legal fiction established within subclause 17.2.



• Subclause 17.3 – As a result of my interpretation above, this subclause should be regarded as applying to all employees irrespective of their union membership status. The subclause provides that in relation to an employee who is on duty “arrangements will be made to facilitate his or her attendance at meetings without loss of pay”.




This is not an ambiguous term; plainly, on duty employees need to be permitted to attend and be paid for attendance when they do so. The subclause also provides, in the case of an employee who attends a meeting when they are off duty, that “the employee will be paid for the time involved at overtime rates”.

Again this is not an ambiguous term, and payment at overtime rates must be made. However in respect of the off duty employee, the meaning of “the time involved” is necessarily read within the context of subclause 17.4 which deals comprehensively with travel arrangements for off duty employees attending consultative meetings.

• Subclause 17.4 –The subclause deals comprehensively with the circumstances of payment and other arrangements to off duty employees attending consultation of meetings. I do not consider it necessary to summarise how the paragraphs within the subclause should be applied, since I was not taken during the hearing to any particular areas of dispute or ambiguity.

[41] The alternative argument advanced by the CFA was that even if they were valid, subclauses 17.3 and 17.4 do not confer entitlements and in particular the following was submitted;

“16. If FWC was to conclude that clauses 17.3 and 17.4 are not objectionable terms, CFA contends that those provisions do not, in any event, confer entitlements in relation to bargaining representatives who have been appointed by the UFU to carry out the UFU's role as a bargaining representative.

17. The fundamental elements of this contention are:

(1) The expressions "UFU nominees" and "UFU representative" in clauses 17.3 and 17.4 respectively refer to members of the UFU who have been selected by the UFU to represent and advance the industrial interests of the UFU as a union, being the industrial interests of the whole of its membership as the union conceives them.

(2) An employee selected to perform that role is not an employee who is an employee bargaining representative. Their role is to represent the employees on whose behalf the UFU is bargaining representative (as a result of the operation of s.176(1)(b) of the FW Act).

(3) Accordingly, clauses 17.3 and 17.4 necessarily are not applicable to employees who are performing the UFU's role as bargaining representative in bargaining.

18. The expression "UFU nominees" is not defined in cl.17 or elsewhere in the agreement. The expression UFU nominees is redolent of a case where the person concerned is representative of the interests of the nominator.

...

20. For these reasons it is plain that the expression "UFU nominees" both in clause 13.4.2 and in cl.17.3 refers to members of the UFU nominated by the UFU to represents the UFU interests as a union and not to UFU members standing in the shoes of the UFU in its capacity as a bargaining representative.

...

22. Accordingly, clauses 17.3 and 17.4 confer entitlements on a class of employees in which bargaining representatives whether appointed by the UFU in its capacity as a bargaining representative or not, do not number.” 20

[42] The critical proposition within this submission is that persons engaged in bargaining are not involved in representing the UFU’s interests as a corporate registered organisation of employees, but are instead representing the separate and distinct interests of employees, who are on this occasion being represented by the union as a bargaining representative for the purposes of advancing the interests of the collective of employees and not the interests of the registered organisation.

[43] This submission is not consistent either with the purpose of the clause which applies to “employees participating at any level of consultation referred to in this agreement or participating in any meeting or forum ...” and it is not consistent with the ordinary or usual meaning of the words in the clause.

[44] To arrive at the interpretation proffered by the CFA would require viewing the clause as separately providing for entitlements in respect of meetings that employees might attend to consider or advance their own direct and personal industrial interests on the one hand, and on the other hand, the meetings that employees might attend for the purposes of consultation about the interests of the UFU as a registered organisation of employees, the satisfaction of which interests do not lead to direct benefit for the representatives nominees concerned. This is not a construction available to me either on the face of the provisions of clause 17, or a consideration of the clause within the wider context of the terms and conditions of the other clauses of the Operational Staff Agreement. It would be an artificial construction that I am not satisfied I am entitled to make.

[45] The CFA also made submissions in respect of the meaning of the phrase contained within subclause 17.2 that “[e]mployees will be paid for all such time participating as if they were performing work during that time” (emphasis added). After considering the Authority’s submissions, set out between paragraphs 23 and 31 of its Outline of Submissions, and taking into account the construction I have formed about the operation of subclauses 17.3 and 17.4, I do not consider it necessary to directly address the propositions put forward by the CFA. This is because I understand the CFA submissions in respect of subclause 17.2 to have relevance to, and be a consequence of, the Authority’s primary submission, that subclauses 17.3 and 17.4 are invalid and have no effect.

COMMISSIONER

Appearances:

S Bingham, of Counsel, instructed by M Baldini, for the Applicant.

S Pill, of Counsel, instructed by J Skiba, for the Respondent.

Hearing details:

2013.

Melbourne:

July 25.

 1   B2013/805, Application by United Firefighters' Union of Australia

 2   CFA outline of submissions, paragraph 1

 3   CFA outline of submissions, paragraph 2

 4   UFU Outline of Submissions, paragraph 15

 5   [2010] FWAA 8164

 6   ibid, at [5]

 7   Witness statement of James Kefalas, (Exhibit UFUA 1), Annexure JK-5

 8   CFA Outline of Submissions, paragraph 10

 9 FW Act, s.55

 10 FW Act, s.253

 11   Kucks v CSR Limited, (1996) 66 IR 182, at 184

 12   Codelfa Construction Pty Ltd v State Rail Authority of NSW, (1982) 149 CLR 337 at [22]; referred to in Short v FW Hercus Pty Ltd, (1993) 40 FCR 511, at 518-519

 13   [2013] FWCFB 2814

 14 see Fair Work Act, s.12, definition of “workplace instrument” and “workplace law”

 15   CFA Outline of Submissions, paragraph 14

 16   Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402, at [221]

 17   Macquarie Dictionary, 5th edition, 2009

 18   Operational Staff Agreement, subclause 17.3

 19   Operational Staff Agreement, subclause 17.4

 20   CFA outline of submissions, from paragraph 16 – 22

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