Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 5209

Note: An appeal pursuant to s.604 (C2012/4436) was lodged against this decision - refer to Full Bench decision dated 24 September 2012 [[2012] FWAFB 8238] for result of appeal.

[2012] FWA 5209

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Country Fire Authority
v
United Firefighters' Union of Australia
(C2012/3501)

COMMISSIONER ROE MELBOURNE, 29 JUNE 2012

Alleged dispute regarding flexible working hours for PAD Operators (Clauses 65, 148 and 150). Clause 15, Dispute Resolution, of Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010.

[1] On 31 January 2012 the United Firefighters’ Union of Australia (UFU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute was pursuant to the Country Fire Authority (CFA), United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act). The employer covered by the Agreement is the Country Fire Authority (CFA). The dispute related to the penalty rate applicable to overtime for PAD operators. The matter was C2012/2425.

[2] A conference was held on 6 February 2012 and following that I made the following recommendation.

“1. In the absence of any application to vary the agreement it is difficult to determine the meaning of “penalty rate” in clause 149.1.

2. FWA believes that the issues surrounding the meaning of clauses 143, 148, 149 and 150 would be canvassed in any arbitration of C2012/2425 to determine the meaning of clause 149.

3. Therefore, FWA recommends that the parties seek to resolve the issues surrounding the implementation of clauses 143, 148, 149 and 150 including the issue of casual conversion raised by the UFU rather than immediately pursue arbitration.

4. Without prejudice to the position of either party the status quo in respect to Clause 149 shall remain whilst these discussions continue.

5. The matter will be relisted on Friday 16 March 2012 at 9.30am for the parties to report back on the outcome of their discussions.”

[3] There was a further conference on 22 March 2012 and a further conference was scheduled but was cancelled at the request of the UFU who then discontinued the matter on 23 April 2012.

[4] The CFA then lodged the current matter C2012/3501 on 23 April 2012. That matter related to the implementation of flexible working hours for PAD Operators and the refusal of the UFU to accept a variation to the hours of work for these employees.

[5] Following a conference I issued the following Statement on 30 April 2012.

“It appears to FWA based upon the conference on 30 April 2012 and earlier conferences in respect to C2012/2425 that further conciliation is unlikely to resolve the matter.

FWA proposes to determine if Clause 150 of the Agreement enables hours flexibility beyond that specified in Clause 148 as a first step towards resolving the dispute.

The parties are to confirm by close of business Wednesday 2 May if they agree to that course of action.

In the event that there is confirmation FWA will set directions on 3 May which provide CFA with two weeks to provide its submissions and evidence upon which it relies and provides the UFU two weeks to provide its submissions and evidence upon which it relies. The matter would be set for hearing at 10am on 12 June 2012 for half a day or if a full day is required at 10am on 28 June 2012.”

[6] Through subsequent correspondence the parties agreed that the matter to be determined initially was:

“The proper construction of Clauses 150 and Clauses 148 and in particular:

• whether or not Clause 150 of the Agreement enable hours flexibility beyond that specified in Clause 148; and



• the application of Clause 65.”

[7] I have had the benefit of written submissions from both parties. 1 I have considered all the matters raised in those submissions but I do not specifically refer to every submission in this decision.

[8] At the hearing on 28 June 2012 I considered further submissions from the parties.

[9] The relevant provisions of the Agreement are included at Attachment 1 to this decision.

[10] It is not in dispute and I am satisfied that the appropriate steps of the disputes resolution process Clause 15 of the Agreement have been followed. I am satisfied that conciliation has been exhausted. I am also satisfied that the matters in dispute are ones that are able to be resolved by arbitration pursuant to Clause 15 of the Agreement. That is, they are matters which fall within the scope of Clause 15 of the Agreement.

[11] The PAD Operators and Supervisors support the work of the training instructors.

[12] The CFA submitted and I am satisfied that:

• The majority of training is delivered in the period of lower fire risk: March to October inclusive.



• Most training for professional firefighters takes place during Monday to Friday but there is training on weekends and outside of 8 am to 4.45 pm. Most training for volunteers takes place outside of the ordinary hours specified in Clause 148 of the Agreement, 8 am to 4.45 pm Monday to Friday.



• The position descriptors for PAD Supervisor and PAD Operator have been in place since before the Agreement was made and provide that working at night and on weekends may be involved.



• The instructors work variable shift hours and the PAD operators and supervisors work directly with the instructors.



• The Agreement provided an alignment of PAD Supervisors with Station Officers and this resulted in a 58.9% wage increase and an alignment of PAD Operators with Leading Fire Fighters which resulted in a 73.5% wage increase.



• The rate for Leading Fire Fighters and Station Officers incorporates an allowance for shift penalties and 4 hours rostered overtime. This was explicit in the 2008 Agreement and the 2010 Agreement rates are based on these rates.

[13] I am satisfied that a claim is not prohibited by the “no extra claims clause” if the claim is consistent with the other provision(s) of the Agreement, namely Clause 150 read in conjunction with Clause 148.

[14] The UFU argues that the words of Clause 148 are not ambiguous. The UFU argues that Clause 148 sets the ordinary hours of work. The Clause does not provide for any variation to this. The UFU argues that Clause 150 is not ambiguous. It is simply a statement of fact that a loading for flexible working hours is included in the salary. It does not say anything about the ordinary hours of duty or the span of hours and it does not provide any mechanism for variation of hours. The UFU argue that Clause 150 is not a machinery provision in the Agreement.

[15] The 2002 and 2008 Agreements included a provision that the parties would investigate flexible hours for full time PAD operators and provided that outcomes from the investigation would form a variation to the Agreement. The clause also exempted this issue from the no extra claims clause. The provisions of Clause 148 of the current Agreement are identical to the provisions of Clause 11.4 of the Victorian Firefighting Industry Employees Interim Award 2000 which regulated the hours of work for the PAD workers under the 2002 and 2008 Agreements. The parties accept and I am satisfied that Clause 148 does not introduce any flexibility of hours when compared to the 2002 and 2008 Agreements. The exemption from no extra claims is not included in the 2010 Agreement. The 2010 Agreement includes a new provision, Clause 150, that “a loading for working flexible working hours is included in the salary.”

[16] The joint briefing provided to employees prior to voting on the Agreement does not refer to the issue of flexible hours for PAD workers but does refer to the significant wage increases provided to these workers under the Agreement.

[17] The UFU argues that the introduction of parity in rates between PAD operators and supervisors and Leading Fire Fighters and Station Officers does not imply the introduction of parity of conditions in respect to working hours arrangements. The hours provisions for PAD operators are in a separate section of the Agreement and it is clear that the provisions particular to operational Firefighters do not apply. The UFU also argues that the inclusion of an expectation that PAD operators and supervisors will work outside of ordinary hours in their position descriptions does not assist in the interpretation of the Agreement.

[18] Both the UFU and the CFA agree that whereas the 2002 and 2008 Agreements specifically provided for PAD workers flexible hours to be resolved and introduced during the life of those Agreements, the 2010 Agreement brings the issue of flexible hours into the Agreement as a determined or finalised matter. In other words both parties agree that whereas the 2002 and 2008 Agreements make it clear that the issue of flexible hours is not resolved and provided a mechanism for resolving the matter; the 2010 Agreement has resolved that matter through the inclusion of Clause 150 in the Agreement.

[19] Both the UFU and the CFA agree that the reference to a loading being included in the salary in Clause 150 is a reference, at least in part, to the significant wage increases for PAD workers which were included in the Agreement. The implication which was not rejected by either party is that the wage increase was at least in part in recognition of the working of flexible working hours.

[20] The UFU argue that a proper reading of Clause 150 is that it is acknowledging that the flexibility issue has been resolved by the parties agreeing that the flexibility shall be that which is provided for in Clause 148. The UFU accept that the flexibility in Clause 148 is quite limited and that Clause 148 is not changed from the ordinary hours provisions applying in the 2002 and 2008 Agreements. That is, they accept that Clause 148 does not introduce any flexibility. The UFU argue that the introduction of flexible hours beyond that prevailing in earlier Agreements would have been a significant matter and the failure to mention this change in the briefing material provided to employees prior to voting on the Agreement suggests that the Agreement did not provide for such flexibility. 2 The UFU also argue that the absence of any mechanism to resolve the extent of any additional flexibility in Clause 150 strongly suggests that there is no such additional flexibility.

[21] The CFA argue that a proper reading of Clause 150 is that the flexibility question which had been in contention for many years has been resolved by an agreement to introduce greater flexibility than that provided for in Clause 148 and by an agreement to a loading for that additional flexibility which has been incorporated in the salary. The CFA argue that it would be industrially fanciful to suggest that the parties agreed to such a substantial wage increase without any increase in flexibility of hours or that the degree of flexibility in Clause 148 could be understood to be the flexibility for which a substantial loading was incorporated in the wage rates. They suggest that it would be fanciful to suggest that the CFA would have simply dropped a matter which had been agreed to be implemented for the past eight years, paid a substantial wage increase and agreed that no change was the full implementation of the flexibility it was seeking. The CFA argue that the disputes resolution procedure of the Agreement is the mechanism which applies to Clause 150 and which enables any issue of implementation and interpretation of the clause to be resolved.

Consideration.

[22] I accept the UFU argument that the issue of flexible working hours for PAD workers was identified as an issue to be resolved between the parties in earlier Agreements but not in the current Agreement. The current Agreement differs from the earlier Agreements in at least two key respects. Firstly, the very significant increase in the rates of pay for the PAD workers; and secondly, the inclusion of Clause 150 that “a loading for working flexible working hours is included in the salary.”

[23] Either those flexible working hours are the hours provided for in Clause 148 or those flexible working hours are flexibility beyond that provided for in Clause 148. It is not possible to understand Clause 150 without resolving this question.

[24] A dispute about the proper construction of Clause 150 is one that can be resolved pursuant to Clause 15 Disputes Settlement. The dispute before me is in part a dispute about the proper construction of Clause 150.

[25] I accept the submission of the UFU that the meaning of Clause 148 is not uncertain or ambiguous when one considers the Clause in isolation. However, it must be read in context and Clause 150 is an essential part of that context. Both clauses are part of a section of the Agreement, Part F, which deals with the specific conditions applying to PAD workers and I consider that they must be read together to understand what are the “hours of work” for PAD workers. Both clauses use the term “hours of work” in their heading.

[26] Reading Clause 148 and 150 together it is not clear from the plain words of Clause 150 whether those words, “a loading for working flexible working hours is included in the salary”, are to be read as:

• recording the fact that Clause 148 provides for flexible working hours, loading for which is included in the salary; OR



• as providing that, notwithstanding the provisions of Clause 148, Clause 150 allows for the working of flexible working hours, loading for which is included in the salary.

[27] A plain reading of the words of Clauses 148 and 150 in the context of Part F of the Agreement allows for either meaning for Clause 150. The broader context needs to be considered to ascertain which option best reflects the meaning.

[28] The fact that words to the effect that “notwithstanding the provisions of Clause 148” do not appear in Clause 150 favours the first meaning. The lack of any significant flexibility in working hours in Clause 148 favours the second meaning. It is difficult to give Clause 150 a practical industrial meaning if the first meaning is adopted.

[29] It is of course possible that the flexible working hours provided for in the salary are the hours arrangements in Clause 148. However, I cannot accept this is an industrially real interpretation of Clause 150. Clause 148 introduces no flexibility compared to the transitional Award and the earlier Agreements. Clause 148 is less flexible than the hours provision in the Modern Award for Firefighters. I consider that Clause 148 is less flexible than the provision in almost all other Modern Awards and it is less flexible than provisions commonly found in Agreements regardless of industry.

[30] The transitional Award provided for PAD workers to have a 45 minute unpaid meal break. This meant that if the worker started at 8 am and worked for 8 hours plus a 45 minute unpaid meal break they would finish at 4.45 pm. This was the full extent of the hours in the transitional Award and the 2002 Agreement. There is absolutely no flexibility in this arrangement at all. The current Agreement provides for a paid meal break. This means that there is capacity for 45 minutes flexibility in the organisation of ordinary hours provided for in Clause 148 of the current Agreement. The parties did not suggest and I am not satisfied that this change is the hours flexibility to which Clause 150 refers.

[31] I accept the submissions of the UFU that there is limited other evidence of the mutual intention of the parties to assist in the proper interpretation before me.

[32] In bargaining for the 2010 Agreement the UFU raised the claim for parity of wages and conditions of PAD Operators with Leading Fire Fighters and of PAD Supervisors with Station Officers. In the same log of claims the UFU proposed that the conditions to apply to PAD staff working flexible hours were to be agreed within three months of certification of the Agreement and in the absence of Agreement the matter was to be referred to the Board of Reference for determination. This is not evidence of mutual intention and does not assist in the interpretation of Clause 150.

[33] The joint material provided to employees prior to the vote on the Agreement to which I referred earlier could be evidence of mutual intention but it does not assist in understanding the mutual intention in respect to Clause 150.

[34] Attachments 8 and 9 to the CFA submission demonstrate that the CFA was contemplating during the negotiation process for the Agreement paying a loading for flexible hours. It is then clear that ultimately there was the agreement to significant pay increases for the PAD workers through the introduction of parity with Leading Fire Fighters and Station Officers and the inclusion of Clause 150 that said that loading for flexible hours was incorporated in the rates. However, the CFA position in negotiations is not evidence of mutual intention.

[35] I accept from the background material relating to the negotiations for the Agreement that both parties accept that the issue of additional flexibility in working hours for PAD operators was being pursued during the negotiation process. Both parties put forward proposals which would have led to additional flexibility.

[36] I conclude that there is no strong evidence that when the negotiations were finalised there was a mutual intention to close the issue without the introduction of additional or new flexibility. The UFU argue that the absence of any mention of the issue in the briefing material provided to employees prior to the vote on the Agreement supports such a finding. I am not satisfied that the briefing document is necessarily a comprehensive description of all the changes of significance in the proposed Agreement.

[37] However, I consider the objective facts concerning the earlier Agreements which were known to both parties to be relevant background information and context. The fact that the earlier Agreements contained a commitment to introduce flexible working hours and that a new provision in the current Agreement states that a loading for flexible working hours is included in the salary suggests that Clause 150 is introducing new hours’ flexibility. Generally speaking the new Agreement has many similar clauses to the old Agreement. Clause 148 is identical to the earlier hours provisions applicable to PAD workers. These were the hours set before there was agreement to parity of wages with Leading Fire Fighters and Station Officers. This suggests these hours are not the flexible hours for which loading has been included in the rates for PAD Operators and PAD Supervisors. This suggests that it is not likely that Clause 150 can be referring to the hours flexibility provided for in Clause 148.

[38] The history of the provisions in earlier Agreements and the transitional Award and the context of a very substantial wage increase for the PAD workers in the Agreement strongly favours reading Clause 150 as providing for flexibility beyond that provided for in Clause 148.

Conclusion

[39] I am satisfied that the meaning of Clause 150, read in context, is that notwithstanding the provisions of Clause 148, Clause 150 allows for the working of flexible working hours, loading for which is included in the salary.

[40] However, Clause 150 does not define the parameters of the flexible hours for which loading has been incorporated.

[41] It would be fanciful to suggest that Clause 150 allows for work 24 hours a day 7 days per week without limitation or even for 38 ordinary hours to be performed on any days and or hours of the week. There is no evidence that the parties had agreed on the scope of the flexible working hours at the time they made the Agreement.

[42] On the other hand, it would be inconsistent with the Agreement for Clause 150 to be read as allowing for flexible working hours but requiring that the flexible working hours cannot be worked until the provision in the Agreement is varied or replaced by a clause which specifies the parameters of the flexibility. This reading would result in Clause 150 having no effective work to do. It should also be considered in light of the fact that the previous agreements provided for flexibility to be implemented once finalised during the life of those agreements. I reject an interpretation of Clause 150 that suggests it should be more difficult to implement flexible hours under the current Agreement than under the earlier Agreements. Clause 150 provides for flexibility to be implemented. A claim to implement Clause 150 is not an extra claim.

[43] Clause 150 operates like a flexibility clause in respect to Clause 148.

[44] I am satisfied that there is a dispute between the UFU and the CFA over the attempt by the CFA to implement flexible hours pursuant to Clause 150.

[45] I am satisfied that Clause 15 Disputes Settlement can be utilised to settle a dispute over the implementation of Clause 150. However, Clause 150 itself does not provide much guidance as to the scope of the flexibility or how the parameters of flexibility should be determined. In this context there may be argument about what are the limits to what can be determined through arbitration utilising Clause 15. I make no determination about this matter.

[46] The appropriate course of action now is for the UFU and the CFA to attempt to reach agreement on the implementation of flexible hours in light of my decision on the jurisdictional question. Undoubtedly the parties will do this in the context of seeking to resolve all the outstanding matters concerning the implementation of Part F of the Agreement. In the event that the parties cannot reach agreement it is open to either party to seek to relist the matter. In the event that the matter cannot be resolved by conciliation the parties will have further opportunity to provide submissions as to how Clause 15 can be utilised to resolve this matter, the scope of any decisions which can be made, and the relevant considerations in any arbitration.

[47] I determine in partial resolution of the dispute that the proper construction of Clauses 148 and 150 is that the ordinary hours of work are as provided for in Clause 148. However, Clause 150 provides that those hours may be modified to allow for flexible hours of work, a loading for which is included in the rates of pay specified for the PAD workers in Clause 143 of the Agreement. I direct the parties to confer in light of this decision and seek, within the next four weeks, to reach an agreement on the flexibility which will operate pursuant to Clause 150. In the event that agreement is not reached the matter can be relisted at the request of either party.

COMMISSIONER

Appearances:

Mr E White for the UFU.

Mr B Mueller for the CFA.

Hearing details:

2012
Melbourne
June 28

ATTACHMENT 1

RELEVANT PROVISIONS FROM THE AGREEMENT

65. NO EXTRA CLAIMS

65.1. There shall be no extra claims by either party.

15. DISPUTE RESOLUTION

15.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:

15.1.1. all matters for which express provision is made in this agreement; and

15.1.2. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and

15.1.3. all matters pertaining to the relationship between the CFA and UFU, whether or not express provision for any such matter is made in this agreement, and

15.1.4. all matters arising under the National Employment Standards.

The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.

15.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:

15.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.

15.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.

15.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.

15.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.

15.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.

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.

15.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge.

15.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 15.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.

15.5. This clause shall not apply to a dispute on a Health and Safety issue.

15.6. A dispute may be submitted, notified or referred under this clause by the UFU.

15.7. A decision of FWA under this clause may be appealed. A dispute is not resolved until any such appeal is determined.

PART F - CONDITIONS APPLYING TO PRACTICAL AREA DRILL DEPARTMENT

142. APPLICATION

142.1. This part of the agreement applies to employees:

142.1.1. employed in the Practical Area Drill Department, or

142.1.2. performing work that is or may be performed by an employee in a classification referred to in this part of the agreement.

143. WAGES AND CONDITIONS

143.1. Weekly Wage Rate:

Classification Current Rate

1-Aug-10 1-Aug-11 1-Aug-12 1-Aug-13

+3% +3% +1.9% +3% +1.5%

PAD Operator

1,397.53 1,439.45 1,510.80 1,556.13 1,579.47

PAD Supervisor

1,580.03 1,627.43 1,708.10 1,759.34 1,785.73

143.2. The parties agree that the above rates will be applicable at the time of approval of the agreement on the basis that as the first priority within one week of approval of this agreement the parties will negotiate appropriate training, education, qualifications and additional duties to enable employees within this classification to be qualified and competent in performing the work that reflects the rate of pay as specified above.

143.3. Position descriptions will be developed within 7 days of approval of this agreement and will be agreed between the parties commensurate with clause 143.2.

143.4. No employee will suffer a reduction in ordinary hours of work, paid leave, long service leave, personal leave, wages or any other entitlement as a result of the operation of this clause.

148. HOURS OF WORK

In addition to the conditions provided in the other parts of this agreement:

148.1. The ordinary hours of duty of each employee shall be 38 hours per week worked over eight hours per day, five days Monday to Friday, between the hours of 0800 hours and 1645 hours. Two hours of each week’s work shall accrue as an entitlement to take a nominated day off in each 28 day cycle, one hour and 36 minutes shall accrue during the week in which the nominated day off is taken.

148.2. The paid day off shall be nominated by the Senior Officer in charge of the section. A minimum of 48 hours notice shall be given to the employee of the date nominated as their day-off, but in an emergency situation or on a day of Total Fire Ban, the employer may require any employee to postpone a nominated day off. As much notice as is possible in the circumstances shall be given and the postponed day off shall be taken before the completion of the next 28 day cycle.

149. OVERTIME

149.1. At the election of the employee time off equivalent to the period of overtime worked may be taken in lieu of receiving overtime rates, provided that if overtime has not been taken within the next two pay periods the penalty rate for the overtime will be paid.

150. FLEXIBLE HOURS OF WORK

A loading for working flexible hours is included in salary.

 1   Exhibits UFU 1 and UFU 2 and CFA 1 and CFA 2.

 2   Exhibit UFU 2.

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