Darren Peter McQuade v Fire Rescue Victoria, United Firefighters' Union of Australia
[2022] FWC 2776
•2 NOVEMBER 2022
| [2022] FWC 2776 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Darren Peter McQuade
v
Fire Rescue Victoria, United Firefighters’ Union of Australia
(C2021/4909)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 2 NOVEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Darren McQuade is an Assistant Chief Fire Officer (ACFO) employed by Fire Rescue Victoria (FRV) and the applicant in this proceeding. He commenced his employment with the Melbourne Fire Brigade as a Recruit Firefighter on 7 July 1988 and attained his current ACFO rank on 7 December 2015.
FRV is an entity the product of a restructure of fire services in Victoria brought about by the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019. Under the restructure, FRV assumed the functions of the Metropolitan Fire and Emergency Services Board (MFB) and some of the functions of the Country Fire Authority (CFA). In the result, CFA career firefighters and all MFB employees became employed by FRV. The applicant’s employment with FRV is regulated by the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Agreement) which is an amalgam of several enterprise agreements achieved through a variation of certain transferable instruments – the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2016 (MFB 2016 Agreement); the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Enterprise Agreement 2010; and the Country Fire Authority/United Firefighters’ Union Managers Community Safety Enterprise Agreement 2005 (2009 Extended and Varied Version) – under s 320(2) of the Fair Work Act 2009 (Act).[1] The Agreement also applies to FRV and United Firefighters’ Union (UFU).
The applicant and FRV are in dispute about certain entitlements claimed by the applicant which are said to arise under the Agreement and the MFB 2016 Agreement. The claimed entitlements relate to penalty payments and time in lieu for particular periods on which the applicant is said to have been on a “special roster” exceeding a yearly “cap” of 8 times, and for days off following “work” on 7 consecutive days on a special roster under clauses 139.12.1 and 139.14 of each aforementioned agreement. The applicable terms of the MFB 2016 Agreement and the Agreement are materially the same. Special rosters are on call and recall rosters which appear to have commenced in May 2018 under clause 139 of the MFB 2016 Agreement,[2] and which continue their operation under clause 139 of the Agreement. While rostered on a special roster, an employee continues to work on their normal roster; thus an employee rostered on a special roster may stop work on the normal roster to undertake the work required by their rostering on a special roster.
The applicant referred the dispute to the Commission pursuant to the dispute settlement procedure of the Agreement and by his application under s 739 of the Act he asks the Commission to deal with the dispute in accordance with the procedure. The UFU has a right to participate in the proceeding in accordance with the dispute settlement procedure of the Agreement.[3] The Commission was unable to resolve the dispute by conciliation and the dispute proceeded to arbitration. Before her appointment as a Judge of the Federal Circuit and Family Court of Australia (Division 2), Deputy President Mansini heard the application and had reserved her decision but did not deliver a decision. The application has been reallocated to me for determination and the parties have agreed that I should determine the application by reviewing the transcript, the written outlines of submissions in support of their respective positions and evidentiary materials filed by the parties (and admitted into evidence).
On 24 October 2021, the applicant provided to the Commission a series of questions for arbitration as agreed between the parties. These comprised 5 substantive questions, the first two of which posed several questions within the substantive question. Questions 3-5 are no longer pressed by the applicant.[4] The questions remaining are as follows:
1.With respect to the relevant special rosters referred to at 1(f) below (collectively, the Special Rosters):
(a) Was the Applicant rostered on any and, if so which, of the Special Rosters in 1(f) below?
(b) If ‘yes’ to question 1(a) above, was he so rostered in accordance with the requirements of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (2016 Agreement) or the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (2020 Agreement), including under cl 139.12.1 of the 2016 Agreement or the 2020 Agreement, as the case may be?
(c) For the Special Rosters at 1(f)(i) to 1(f)(xxx) below, was the Applicant entitled to be paid and/or provided with a penalty or entitlement, howsoever described, under clause 139.12.1 of the 2016 Agreement, and if so which?
(d) For the Special Rosters at 1(f)(xxxi) to 1(f)(xxxv) below, was the Applicant entitled to be paid and/or provided with a penalty or entitlement, howsoever described, under or clause 139.12.1 of the 2020 Agreement, and if so which?
(e) For each Special Roster for which the answer to questions 1(c) or 1(d) above is ‘yes’, to what payment, penalty or entitlement, howsoever described, was the Applicant entitled under clause 139.12.1 of the 2016 Agreement or the 2020 Agreement?
(f) The relevant special rosters are:
(i) 2 May 2018 to 8 May 2018 as the State Duty Officer (SDO)– Special Roster Number 1;
(ii) 13 June 2018 to 19 June 2018 as the Regional Controller North West Metro Region (RC NWM) – Special Roster 2;
(iii) 4 July 2018 to 10 July 2018 as the SDO – Special Roster 3;
(iv) 1 August 2018 to 3 August 2018 as the Regional Controller Southern Metro Region– Special Roster 4; (v) 15 August 2018 to 21 August 2018 as the SDO – Special Roster 5;
(vi) 5 September 2018 to 11 September 2018 as the RC NWM – Special Roster 6;
(vii) 19 September 2018 to 25 September 2018, the Applicant is unsure of his rostered position for this date – Special Roster 7;
(viii) 3 October 2018 to 9 October 2018 as the RC NWM – Special Roster 8;
(ix) 17 October 2018 to 23 October 2018 as the Duty ACFO – Special Roster Number 9;
(x) 21 November 2018 to 27 November 2018 as the RC NWM - Special Roster Number 10;
(xi) 5 December 2018 to 11 December 2018 as the RC NWM - Special Roster Number 11;
(xii) 2 January 2019 to 8 January 2019 as the RC NWM - Special Roster Number 12;
(xiii) 13 March 2019 to 19 March 2019 as the RC NWM - Special Roster Number 13;
(xiv) 27 March 2019 to 2 April 2019 as the SDO - Special Roster Number 14;
(xv) 3 April 2019 to 9 April 2019 as the Regional Controller Southern Metro Region (RC SM) - Special Roster Number 15;
(xvi) 24 April 2019 to 30 April 2019 as the Regional Controller Northwest Metro - Special Roster Number 16;
(xvii) 8 May 2019 to 14 May 2019 as the RC NWM - Special Roster Number 17;
(xviii) 12 June 2019 to 18 June 2019 as the Duty ACFO - Special Roster Number 18;
(xix) 3 July 2019 to 9 Julye 2019 as the RC NWM- Special Roster Number 19;
(xx) 14 August 2019 to 20 August 2019 as the Duty ACFO - Special Roster Number 20;
(xxi) 16 October 2019 to 22 October 2019 as the SDO- Special Roster Number 21;
(xxii) 20 November 2019 to 26 November 2019 as the RC NWM - Special Roster Number 22;
(xxiii) 11 December 2019 to 17 December 2019 as the RC NWM - Special Roster Number 23;
(xxiv) 3 January 2020 to 9 January 2020 as the Deputy Incident Controller - Special Roster Number 24; (xxv) 19 February 2020 to 25 February 2020 as the RC NWM- Special Roster Number 25;
(xxvi) 11 March 2020 to 17 March 2020 as the Regional Controller Eastern Metro Region (RC EM) - Special Roster Number 26;
(xxvii) 22 April 2020 to 28 April 2020 as the RC NWM - Special Roster Number 27;
(xxviii) 6 May 2020 to 12 May 2020 as the RC NWM - Special Roster Number 28;
(xxix) 3 June 2020 to 9 June 2020 as the RC NWM - Special Roster Number 29;
(xxx) 24 June 2020 to 30 June 2020 as the RC NWM - Special Roster Number 30;
(xxxi) 23 September 2020 to 29 September 2020 as the Duty ACFO - Special Roster Number 31;
(xxxii)4 November 2020 to 10 November 2020 as the RC NWM - Special Roster Number 32;
(xxxiii)1 December to 7 December 2020 as the Regional Controller Barwon South West Region - Special Roster Number 33;
(xxxiv)23 December 2020 to 29 December 2020 as the RC NWM - Special Roster Number 34; and
(xxxv)17 February 2021 to 23 February 2021 as the RC NWM- Special Roster Number 35.
2.With respect to the entitlements in accordance with cl.139.14 of the 2016 Agreement and the 2020 Agreement:
(a) What is the proper meaning of “work” as used in that sub-clause?
(b) On what days during or sequential to the Special Rosters in 1(f) did the Applicant “work” within the meaning in cl.139.14 of the 2016 Agreement and the 2020 Agreement?
(c) Do clauses 139.14 of the 2016 Agreement and 139.14 of the 2020 Agreement provide an entitlement to two consecutive days off, paid at double time rates:
(i)where an employee “works” seven consecutive days (but no more than seven consecutive days); or
(ii)only where an employee “works” more than seven consecutive days?
(d) Are non-special roster days included in the number of consecutive days required to be “worked” to give rise to the entitlement to two consecutive days off in clause 139.14 of the 2016 and 2020 Agreements (or is it only special roster days that count for that purpose)?
Consideration
FRV accepts that the applicant was rostered on each of the relevant special rosters set out at question 1(f),[5] although – for the reasons I will shortly set out –it says the condition in clause 139.12.1 of the applicable agreements to work in excess of 8 special rosters in a 12-month period was not met and so no entitlement under that clause arose. The UFU submitted that it is not in a position to challenge or confirm the factual assertions by applicant that he was rostered for each of the special rosters identified at question 1(f)[6] but joined with FRV’s contention as to the absence of the condition precedent triggering an entitlement under clause 139.12.1. I accept therefore that the applicant was rostered as described in question 1(f).
The MFB 2016 Agreement commenced operation on 25 February 2019 but in practice the then MFB applied the bulk of the MFB 2016 Agreement terms to employees to be covered by that agreement (including the applicant) between 18 May 2018 and the commencement of the MFB 2016 Agreement. Prior to 25 February 2019, the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 applied to the applicant’s employment with the MFB. From 26 August 2020, the Agreement applied to the applicant’s employment with FRV. For present purposes, so far as the dates in question 1(f) are concerned with periods of a roster, it seems to be accepted that the MFB 2016 Agreement applied (or in practice was applied), at all relevant times prior to 1 July 2020, to the applicant’s employment with the MFB; the MFB 2016 Agreement applied as a transferable instrument, at all relevant times between 1 July 2020 and 25 August 2020, to his employment with FRV; and the Agreement applied, at all relevant times from 26 August 2020, to his employment with FRV.
The resolution of the dispute is essentially confined to resolving two constructional questions relating to the operation of clauses 139.12.1 and 139.14 of the Agreement and the MFB 2016 Agreement: their application (if any) to the rostered periods in question 1(f); and the meaning of “work” while the applicant was rostered as set out in question 1(f).
The contentions of the parties in respect of these questions are summarised below.
In respect of the first constructional question:
· the applicant contends:
othe words of the second sentence of clause 139.12.1 (the penalty provision) are in plain terms;
othe applicant was rostered to work more than 8 rosters in a number of 12-month periods;
othe focus of the penalty provision in clause 139.12.1 is conditioned on the mischief that clause 139.12 seeks to defeat – the allocation of an employee to a special roster more than 8 times in a 12-month period;
othe penalty provision is not conditioned on the agreement of the employee, FRV and the UFU (to be rostered more than 8 times per year) in the first sentence of clause 139.12.1;
othe conjunction “if”, introducing the second sentence of clause 139.12.1 condition and penalty provision, makes clear that an employee who suffers the disability of having to be rostered more than 8 times in a 12-month period becomes entitled to the penalty whether or not the conditions in the first sentence are fully satisfied;
oin any event, taking into account the context in which clause 139.12.1 operates and integrated role that the UFU plays in all rostering and the broad publication of the special rosters, the UFU was constructively on notice and agreed to the excess rostering by way of its tacit acceptance such that the first sentence of clause 139.12.1 was satisfied.[7]
· FRV contends:
oalthough the applicant was rostered on each of the relevant special rosters set out at question 1(f), he did not reach a relevant tripartite “agreement” with FRV and the UFU, within the meaning of clause 139.12.1, to work in excess of 8 special rosters in a 12 month period;
othe penalty provision in the second sentence of clause 139.12.1 is activated only when an employee is rostered on a special roster more than 8 times in a 12-month period in circumstances where the condition in the first sentence of the clause is satisfied in relation to the excess rostering;
othe “rostering” to which the second sentence of clause 139.12.1 refers – the additional roster allocations beyond 8 allocations per year – is necessarily a subset of that to which the first sentence refers;
othe second sentence of clause 139.12.1 does not provide a separate exception to the restriction which clause 139.12 and the first sentence condition of clause 139.12.1 impose;
othe applicant was not rostered in accordance with the first sentence of clause 139.12.1, and was not entitled to be rostered in accordance with the second sentence of clause 139.12.1 of the MFB 2016 Agreement and the Agreement (respectively. He was therefore not entitled to the benefit of the penalty and time in lieu provisions thereof);
othe payment to which the applicant was entitled for working those special rosters is instead derived from clauses 139.7 and 128 of Part A of the respective agreements.[8]
· the UFU contends:
othe applicant’s claim is premised upon the second sentence of clause 139.12.1 but fails to pay proper regard to the broader context and purpose of those words and the clause;
oclause 139.12 imports a prohibition on employees being rostered more than 8 times on any special roster in any 12-month period;
othe object and purpose of clause 139.12 is consistent with that of sub-clauses 139.8 to 139.12.1 and 139.14 to 139.17, which are each directed to fatigue management by mandating breaks and limiting when an employee can be rostered on a special roster;
otaking into account the broader context (such as the coverage provisions and clause 138 detailing how ACFOs and line managers are to balance and manage working hours), the prohibition in clause 139.12 should not be read as imposing an obligation solely upon FRV – it applies to all those to whom the agreements apply;
othe first sentence of clause 139.12.1 provides the specific and limited circumstances in which a Commander or an ACFO may be rostered more than 8 times per year on a special roster and that this may only occur “by agreement between the employer, employee and the UFU”;
oread as a whole, clause 139.12.1 makes clear that the entitlement of an employee to additional pay and time in lieu (and the reciprocal obligation on the MFB/FRV to afford additional pay and time in lieu) is contingent on there being agreement between the employer, employee and the UFU for that rostering to occur;
othe applicant’s alternative contention which suggests that the “agreement” of the UFU (and presumably the MFB/FRV) may arise “constructively” or by “tacit acceptance” of published rosters is not supported by the language and context of clause 139.12;
othe express terms of clause 139.12.1 only permit rostering on special roster more than 8 times per year by “agreement” between the employer, the employee and the UFU;
oclause 139.12.1 does not countenance a constructive agreement or tacit acceptance. Rather “agreement” in clause 139.12.1 should be given its ordinary meaning. The requisite agreement requires awareness of the relevant circumstance, consideration of the situation and the consent of each of the employer, employee and the UFU. This is especially so given the financial consequences of the entitlement or penalty under clause 139.12.1 being engaged.[9]
As to the second constructional question:
· the applicant contends:
owhile the nature of being rostered to a special roster is such as to be a quasi-form of “work”, the terms of clause 139 clearly differentiate between being rostered and then recalled to “work” in undertaking actual duties on those rosters;
othe applicant was still required to work in a number of periods for 7 consecutive days – for the reason that his special roster work occurred concurrently with his normal ordinary hours of work;
othe words of clause 139.14 are divided into separate and distinguishable mischiefs in the first and second sentences;
othe first sentence is directed to working, or being on, a Special Roster for more than 7 consecutive days;
othe second sentence is directed at working 7 consecutive days only;
owhile this might point to an ambiguity, the industrial purpose of the provision is clear in circumstances where unique to these agreements is the concept of concurrent and overlapping work for ACFOs who had, since long before these agreements were in operation, been required to undertake both their “day to day” jobs as well as their emergency duties on such recall rosters;
othus the relief provided by the second sentence is targeted at the cumulative working fatigue to an employee rather than a narrow construction as to only work, or being rostered on, a special roster as proscribed by the first sentence.[10]
· FRV contends:
othe meaning of “work” in clause 139.14 is all duties performed pursuant to the role to which the ACFO is allocated under the relevant special roster;
oit does not encompass work performed pursuant to the ACFO’s ordinary role whilst rostered on a special roster;
oclause 139.14 demonstrates a clear distinction between “work[ing]” a special roster (on the one hand), and “be[ing] on” a special roster (on the other) – the penalty applies only to the former;
oon the applicant’s construction, an ACFO could perform even minimal special roster duties – for example, attendance on a single telephone call on a single day – and receive two days off paid at double time. Adopting a practical and commercial approach to construction ought to lead to a conclusion that the framers of the agreements could not sensibly have intended such a disproportionate outcome;
opurposive considerations and the parties’ common intention both support a construction that confines the clause 139.14 penalty trigger to a period of more than 7 consecutive days “worked”;
obut the answer to that question is irrelevant to the applicant’s circumstance as his evidence demonstrates at highest two consecutive days “worked” in the relevant sense.[11]
· The UFU contends:
othe applicant posits no explanation why his service during his ordinary hours of work should be considered “work” for the purpose of clause 139.14;
othe correct construction of the term “work” as used in clause 139.14 is limited to the applicant’s duties performed when recalled to duty, or substantially disturbed from his rest for duties, in consequence of a special roster;
othe applicant will not “work” for the purpose of clause 139.14 by merely attending to his duties in accordance with the standard roster, while rostered on a special roster at that time;
o“work” is used in twice clause 139.14 – the first sentence provides that no employee will “work or be on a special roster”, whereas the second sentence merely refers to any employee “who works”. The two sentences must be read together and, in the context of the clause pertaining to special rosters;
oclause 139 is concerned with special rosters. “Special rosters” or “special duty rosters” are mentioned in almost every sub-clause within clause 139. The clause is directed to how such rosters shall operate. Clause 139 is juxtaposed with clause 138 which is concerned more broadly with “ACFO Hours of work”;
oconsequently the term “work” as used in both the first and second sentences of clause 139.14 means the performance of work on or in consequence of a special roster rather than the performance of work by an ACFO more generally.[12]
The principles governing the construction of an enterprise agreement are not in contest and need not be rehearsed in detail. It is sufficient to observe that the construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the agreement remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[13]
Clause 139 is found in Part C of MFB 2016 Agreement and Part C of Division A to the Agreement. Clause 137 of each agreement makes clear that Part C applies only to employees engaged as a Commander or an ACFO. The classification of ACFO is the highest rank and for which the highest weekly wage is assigned under the MFB 2016 Agreement and Agreement classification structure (for example, see clauses 12.2 and 133.1 of the Agreement). It is uncontroversial that an ACFO is generally responsible for leading districts and departments within FRV, and reports to a Deputy Fire Rescue Commissioner or the Fire Rescue Commissioner. In this regard, the applicant is the Director of the Community Resilience Department of FRV.
Clause 138 deals with ACFO hours of work, pursuant to which the following is required of an ACFO: agree with their direct supervisor on a balanced approach to hours of work (clause 138.5); work as directed and as needed within an average of a 38 hour week (clause 138.6); manage their own diaries so that there is a balance between working time and time off (clause 138.7); balance their working time through compensatory time off on an individual basis for which approval will not be withheld (clause 138.8); and utilise the dispute resolution clause if an ACFO believes that they are unreasonably being expected to work additional hours, and compensatory time off is being unreasonably withheld (clause 138.9). A full-time ACFO will work an average of 38 hours per week and a part-time ACFO, engaged pursuant to the relevant agreement, works on average less than 38 hours per week (clause 138.4.1).
It is also uncontroversial that all ACFOs are also required to be available to be rostered on special rosters.
Clause 139 is titled “Special Rosters and Rest Periods” and provides as follows:
139. SPECIAL ROSTERS AND REST PERIODS
139.1. To avoid doubt, these provisions apply as well as roster and hours of work provisions in Part A of this Division.
139.2. A special roster is a roster to be recalled or standby on call as opposed to standard rosters under clause 121. The special rosters include the following types agreed to between the employer and the UFU:
139.2.1.Priority Recall Roster
139.2.2.Rostered Duty Officer/State Duty Officer Roster
139.2.3.Commander Fire Call Roster
139.2.4.ECC Roster 139.2.5. IECC Roster
139.2.6.Regional Control Roster
139.3. No other special rosters or special rostered position shall exist or be implemented, unless agreed to between the UFU and FRV.
139.4. Special roster hours shall be agreed between FRV and UFU.
139.5. Employees who are rostered to a special roster shall remain 100 kilometres from the district to which they are rostered whilst on the special roster. Where the employee’s residence is further than 100 kilometres from the district, the employer shall provide reasonable accommodation for the employee within 100 kilometres.
139.6. For the purpose of this clause, time spent on emergency deployment outside the MFD (as defined by the MFB Act immediately prior to the commencement of Part 3 of the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019) shall also be recognised as time spent on a special roster.
139.7. All time spent recalled under a special duty roster shall be paid at recall rates and conditions in accordance with the overtime provisions in clause 128.
139.8. Unless otherwise provided in this Division, the employer will ensure employees do not work more than 14 hours consecutively. This includes employees being rostered on call via a special roster where the employee has been contacted during the roster.
139.9. Employees are entitled to 10 consecutive hours off duty between the completion of his or her ordinary work on one day and the commencement of ordinary work on the next day, excluding any travel time (including travel to and from a place of rest). The definition of ordinary work under this subclause includes employees being rostered on call via a special roster, where the employee has been contacted during the roster, and normal roster.
139.10.Where work involves ongoing major operational activity, FRV will ensure that there are adequate breaks during periods of duty, including by ensuring that they have adequate relief available.
139.11.In any 35 day period, no employee shall be rostered on any special roster for more than 7 days.
139.12.In any 12 month period, no employee shall be rostered for more than 8 times on any special roster, including for deployments outside of the MFD (as defined by the MFB Act immediately prior to the commencement of Part 3 of the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019).
139.12.1.Any rostering in addition to 8 times per year will only be by agreement between the employer, employee and the UFU. If an employee is rostered more than 8 times per year, the employer will pay the employee double time for all such time rostered and provide an equal amount of time as time off in lieu.
139.13.Where an employee who performs a rostered on call position at night is disturbed from their rest for any FRV related matter, the disturbance will be counted as one hour on duty. If the duty required is greater than 1 hour, the whole time on duty will be counted as on duty time. Where an activity requires an employee to be on duty for four hours or more in the one night, then the employee is entitled at completion of duty to a ten hour break and the break will be counted as time worked.
139.14.No employee will work or be on a special roster more than 7 days consecutively. Any employee who works 7 consecutive days must take 2 consecutive days off. These days will be paid at double time rates.
139.15.No employee will work or be on a special roster more than 4 nights in any week (Monday to Sunday). Any employee who works more than 2 nights in any one week (Monday to Sunday) will be paid at triple time rates for a minimum of 4 hours for each additional night worked. For the purposes of this clause the spread of hours for night work is between the hours of 1800 and 0800.
139.16.No employee will work more than 12 hours on a Saturday or a Sunday.
139.17. A Rostered and/or State Duty Officer (RDO/SDO) shall not perform more than 14 hours on duty or on call in any 24 hour period. RDO/SDO relief will be provided for in the event that the Rostered and/or State Duty Officer performs 14 hours on duty in any 24 hour period until the Regional and/or State Duty Officer achieves a 10 hour break.
139.18.If the employee does not receive the rest periods as outlined in this clause, a penalty rate of double time will be paid for all time until such rest periods are taken, in addition to any other entitlement provided in this Division.
139.19.In the event of loss of motor vehicle license, this clause shall not apply.
139.20.Where an on shift Commander is undertaking training, a replacement Commander shall be recalled and all conditions for the recalled Commander shall be in accordance with this Division.
The provisions of clause 139 the subject of the controversy have been underlined in the extract above.
The scheme established by clause 139 relevantly consists of the following elements. A “special roster” is a roster for the rostered employee to be recalled to duty or to be on standby on call and is not a roster for working ordinary hours (clause 139.2). Special rosters are implemented only by agreement between FRV and the UFU (clause 139.3), as are the hours of a special roster (clause 139.4). Certain emergency deployment is recognised as “time spent on a special roster” (clause 139.6).
Time spent “recalled under a special roster” is paid in accordance with the overtime recall provisions of the agreements which provide, inter alia, a minimum four-hour payment at double time, optional alternative time off in lieu of double time, ordinary time travel time payments and kilometre distance travel payments (clauses 128 and 139.7).
An employee disturbed from rest by an FRV related matter while the employee is rostered on call at night is credited with 1 hour of duty for the disturbance and if the duty required by the disturbance is greater than one hour, for the whole period of the disturbance. A duty period of four hours or more results in a 10-hour break at the completion of the duty and the 10 hours is counted as time worked (clause 139.13).
There is a restriction on the number of consecutive hours (14) which an employee can work and requirements for a number of consecutive hours (10) off duty between periods of ordinary hours of work. The number of consecutive hours and periods of ordinary hours includes periods of contact with the employee while the employee is rostered on call on a special roster (clauses 139.8 and 139.9). The employer is required to ensure adequate breaks are provide during duty periods where work involves ongoing major operational activity (clause 139.10).
There are restrictions on: the length of any special roster period (not more than 7 days in any 35 day period); the periods of work or assignment to a special roster (not more than 7 consecutive days and not more than 4 nights in any week); the number of occasions on which an employee may be rostered on a special roster (8 times in any 12 month period); the number of hours worked on particular days (not more than 12 hours on a Saturday or Sunday) (clauses 139.11, 139.14, 139.15, 139.12 and 139.16); and the number of duty hours or on call to be performed in any 24 hour period for designated employees (14 hours for Rostered or State Duty Officers) (clause 139.17).
There are also limits on the circumstances in which an employee may be rostered on a special roster on more than 8 occasions in a year (by agreement with the employer, the employee and the UFU) (clause 139.12.1).
Financial and rest period consequences for the employer follow when the rest period provisions are not met or when working/rostered hours limitation provisions are exceeded. Double time is payable when rest periods are not taken as prescribed until the rest period is taken (clause 139.18). An employee who works more than 7 consecutive days on a special roster must take two consecutive days off and is paid double time for these days (clause 139.14). An employee rostered for than 8 times in a year on a special roster is paid double time for all time rostered in excess of the 8 times and receives equivalent time as time in lieu (clause 139.12.1).
Treble time is payable when an employee works more than two nights in any week (clause 139.15).
It is evident from the terms of clause 139, that the regulation of special rosters and their working has three distinct features.
First, there are the ‘mechanics’ of special rosters: the application of the provision (clause 139.1); what is a special roster (clause 139.2); what kinds of special rosters may be implemented and how such rosters are to be implemented (clauses 139.2 and 139.3); special roster hours and how they are to be fixed (clause 139.4); the required geographic location of an employee rostered on a special roster (clause 139.5); deeming particular time as time on a special roster (clause 139.6); when on call becomes on duty (clause 139.13); and the requirement to hold a motor vehicle licence (clause 139.13).
Second, there are the provisions plainly directed towards the occupational health and safety and particularly fatigue management of employees in connection with a special roster by mandating rest breaks and limiting when, and under what circumstances, an employee can be rostered on a special roster: the employer will ensure employees do not work more than 14 hours consecutively (clause 139.8); 10 consecutive hours off duty between the completion of ordinary work on one day and the commencement of ordinary work on the next day (clause 139.9); ensuring that there are adequate breaks during periods of duty on ongoing major operational activity (clause 139.10); employees are not to be rostered on any special roster for more than 7 days in any 35 day period (clause 139.11); employees are not to be rostered for more than 8 times on any special roster in any 12 month period (clause 139.12); any such additional rostering is to occur only by agreement between the employer, employee and the UFU (clause 139.12.1); in the event of such additional rostering, equivalent time off in lieu is afforded (clause 139.12.1); a ten hour break when an activity following disturbance requires an employee to be on duty for four hours or more in the one night (clause 139.13); employees are not to work or be on a special roster more than 7 days consecutively (clause 139.14); employees are to take 2 consecutive days off following work on 7 consecutive days on a special roster (clause 139.14); employees are not to work or be on a special roster more than 4 nights in any week (clause 139.15); employees are not to work more than 12 hours on a Saturday or a Sunday (clause 139.16); and RDOs/SDOs are not to perform more than 14 hours on duty or on call in any 24 hour period (clause 139.17).
Third, there are provisions which set out payment rules, or which provide employees with a financial benefit and impose a financial consequence on the employer when there is departure from one or more of the provisions in the preceding paragraph: overtime provisions in clause 128 apply to all time spent recalled under a special duty roster (clause 139.7); rostering an employee more than 8 times per year is paid at double time for all time rostered (clause 139.12.1); disturbance time payments (clause 139.13); double time payment for days off following an employee working 7 consecutive days on a special roster (clause 139.14); an employee who works more than 2 nights in any one week (Monday to Sunday) on a special roster is to be paid at triple time for a minimum of 4 hours for each additional night worked (clause 139.15); and double time is paid for all time until rest periods are taken when an employee does not receive rest breaks as required by clause 139 (clause 139.18).
The first constructional question
I consider, on a proper construction of clause 139.12.1 of the agreements, that if an employee is rostered on a special roster more than 8 times per year, the employer is obligated to pay the employee double time for all such time rostered and to provide an equal amount of time as time off in lieu, whether or not the tripartite agreement to be so rostered described in the first sentence of clause 139.12.1 has been met. My reasons for that conclusion follow.
Special rosters are rosters to which Commanders and ACFO’s are rostered. In their capacity as employees covered by the agreements, they have no direct say in the type of roster, or the existence, implementation and hours of a special roster. This was the domain of the MFB and UFU under the MFB 2016 Agreement and is the domain of FRV and the UFU under the Agreement. So much is clear from clauses 139.2-139.4.
Subject to the restrictions in clause 139, it seems to me that allocation of an employee to a special roster is a matter for FRV.
Clause 139.12 contains a general prohibition that in “any 12 month period, no employee shall be rostered for more than 8 times on any special roster, including for deployments outside of the” Metropolitan Fire District. Similarly, in clause 139.11, there is a prohibition that in “any 35 day period, no employee shall be rostered on any special roster for more than 7 days.”
Although expressed in the passive tense, I do not accept that the obligation to comply with the prohibition (subject to the exception) is in effect a shared responsibility applying to the applicant (and other affected employees), MFB/FRV and the UFU to whom the agreements applied or applies. The prohibition in clause 139.12 is among the suite of measures in clause 139 earlier described aimed at the fatigue management of those rostered to special rosters. Fatigue management is quintessentially part of FRV’s overall obligation, so far as is reasonably practicable, to provide and maintain for its employees a working environment that is safe and without risks to health. This obligation is also underpinned by the obligations of FRV recognised in clause 7.8.2 and clause 62 of the Agreement and the duties found in Schedule 1 and the Occupational Health & Safety Policy and Processes Agreement at Schedule 3 of the Agreement.
There was some evidence to the effect that as senior executives, ACFOs are required to manage their hours to manage their fatigue and that FRV’s “Fatigue Management Procedure” makes clear that as senior managers, ACFOs are responsible for ensuring compliance with the WHS Policy and Fatigue Management Procedure; that adequate resources are available to implement the WHS Policy and Fatigue Management Procedure; and that the procedure makes clear that ACFOs rostered to a recall roster (such as a special roster) must manage their hours of duty to ensure that risks associated with fatigue are appropriately managed.[14] Obviously, as employees, ACFOs have a duty to take reasonable care for their own health and safety, and for the health and safety of persons who may be affected by their acts or omissions at a workplace. ACFOs, as employees, also have a duty to co-operate with their employer with respect to any action taken by FRV, as their employer, to comply with its OHS duties or obligations.[15] In their management capacity, AFCOs also carry out functions aimed at fulfilling FRV’s OHS duties. But as employees, a requirement that ACFOs manage their hours of duty to ensure that risks associated with fatigue are appropriately managed is a requirement to meet their OHS obligations as employees. The requirement does not relieve FRV of its OHS duties to those employees. Those duties are non-delegable. Further, as the procedure itself makes clear, the obligation said to be imposed on ACFO’s for compliance is not correct. The obligation is imposed as follows:
“The ELT [presumably an acronym for Executive Leadership Team] are responsible for:
· Ensuring compliance with the WHS Policy and Fatigue Management Procedure, Ensuring adequate resources are available to implement the WHS Policy and Fatigue Management Procedure.”[16]
In addition, employees do not generally allocate themselves on, or to, a roster. There is no suggestion that the special roster involves self-rostering and indeed the strictures found in clause 139 and the operational requirements of FRV would tell against self-rostering. An employee is placed on or allocated to a roster by the employer. The allocation or placement may be voluntary or mandated, but the act of rostering an employee, is an act of the employer. The phrase, “[i]n any 12 month period, no employee shall be rostered for more than 8 times . . .” in clause 139.12 reflects this: it says no more than the employer must not roster an employee to a special roster more than 8 times in a 12 month period. That the obligation is expressed passively does not change the character of the obligation, or the party upon whom the obligation is placed.
This is consistent with the language used elsewhere. For example, clause 120 provides that “ordinary working hours for employees shall be 38 hours per week, over a cycle of eight weeks for which the roster of hours and leave operates. Employees shall be rostered and worked an average of 42 hours per week . . .”; clause 124 provides that an “employee rostered to Special Duties shall . . .”; and clause 138.1 provides that “[e]mployees shall be rostered in accordance with this clause” (emphasis added). Each is expressed passively, but plainly it is the obligation of the FRV to roster (or not to roster) employees accordingly.
The notion that rostering an employee is an act of the employer also finds voice in clause 126.2.1 which provides that the “roster will be published every 28 days detailing the workplaces of all operational employees”; and in clause 126.2.2 which provides that “[e]mployees will not be rostered in such a way that adversely impacts on their residential or travel arrangements” (emphasis added).
Doubtless the employee may refuse to be rostered to a special roster which is, or would be, in excess of the 8 times limit in any 12-month period. So much is obvious from the prohibition itself but also from the exception in clause 139.12.1 which requires, inter alia, the consent of the affected employee to be allocated to a special roster in excess of the limit. But if the employee agrees to be so rostered, the act of rostering the employee remains one that is undertaken by the employer. Thus, when clause 139.12.1 speak to the consequences of an employee being “rostered more than 8 times per year”, that consequence flows from the act of the employer in so rostering the employee.
That the employer is responsible for rostering on the special roster is also supported by the evidence. Deputy Commissioner David Bruce gave evidence for FRV that special rosters operate in tandem with an employee’s standard roster and that the Rostering Commander is responsible for manually developing such rosters with each comprising a block of six weeks, which commences and concludes on a Wednesday at 9:00am. Deputy Commissioner Bruce said that once the special roster is developed, the Rostering Commander publishes both the current and upcoming special roster on the MFB/FRV intranet and that this typically occurs 2 to 3 weeks prior to the start of the next roster period.[17]
The applicant’s evidence was that:
“MFB had, and FRV continues to have, a Rostering Commander who has been, and continues to be, responsible for appointing and rostering employees on the Priority Recall Roster under the ACFO Agreement; the on call rosters under the Operational Agreement 2010; and the Special Rosters under the MFB and Interim Agreements.
Once the Rostering Commander had appointed the relevant ACFOs to the Priority Recall Roster, the Rostering Commander uploaded a 6-week block of Priority Recall Roster onto the State Rostering intranet site. From that, Command staff including myself, could view which role they would be undertaking and in which week. I never nominated or appointed myself to be rostered on, nor did I have the power to select the role I would be performing on the Priority Recall Roster/Special Rosters. Endorsements were (and still are) also required for some roles (such as the Regional Controller and District Command Centre (DCC) Manager) so it was also not open for ACFOs to change the roster around as and there were and still are only a limited number of MFB/FRV employees endorsed and able to carry out those roles.”[18]
Clause 138 which deals with “ACFO Hours of Work” identifies, at clause 138.7, an expectation that ACFOs manage their own diaries so that there is a balance between working time and time off. But when read in context, the obligation does not bear upon clause 139.12 as contended. The opening words to the expectation in clause 138.7 are “[i]n this context”. “This context” is that “MFB/FRV wishes to continue the present arrangement which is that the ACFO and their direct supervisor agree on a balanced approach to hours of work” (clause 138.5); and that “[i]t is recognised that ACFO’s are expected to work as directed and as needed within an average of a 38 hour week” (clause 138.6) (emphasis added). Thus contextually, the expectation of balancing in clause 138.7 is relevant to whether an ACFO agrees to be rostered on a special roster in excess of the limit in clause 139.12 but does not have the effect of reading into clause 139.12 an obligation as to rostering extending beyond the employer. Further, no similar expectation is found for Commanders, yet clause 139 applies to both Commanders and ACFOs.
It is accepted that the first sentence of clause 139.12.1 provides the specific and limited circumstances in which a Commander or an ACFO may be rostered more than 8 times per year on a special roster. There is plainly a requirement for a tripartite agreement – the employer, the employee and the UFU. But I do not accept that the second sentence raises an entitlement only if there is agreement between the employer, employee and the UFU for that rostering to occur. Plainly the entitlement cannot be engaged unless there is agreement between the employer and the employee since the employer performs the act of rostering and the employee may only be so rostered if the employee has agreed. The first sentence of clause 139.12.1, like the limitation in clause 139.12, is aimed at managing fatigue and balancing working hours. It is not intended, nor does it have the effect of, depriving an employee of the second sentence entitlement if the employee is rostered on a special roster more than 8 times per year. Ultimately, the obligation to obtain the consent of both an employee and the UFU for the proposed excess rostering of the employee rests on the employer because it is the employer which will roster the employee to a special roster in excess of the limit in clause 139.12. But the fact the employer fails or neglects to obtain the UFU’s agreement to the excess rostering does not deprive the employee of the financial and rest benefit for which clause 139.12.1 provides in consequence of being rostered on a special roster more than 8 time per year. In my view the second sentence operates according to its terms. The two sentences are to be read separately and not as though the second is conditioned on the first. The second sentence of clause 139.12.1 is concerned with the consequence of an employee being rostered for periods in excess of the limit. It is not concerned with whether the excess rostering on a special roster, occurred pursuant to the tripartite agreement the first sentence requires, but with merely that excess rostering occurred.
As should be evident, I accept that the evident purpose of a cap on special roster allocations in a 12-month period in clause 139.12 is to manage employee fatigue and to minimise excessive impact on employee non-working time. I also accept that FRV has obligations under OHS legislation and the Agreement (as the MFB had under the MFB 2016 Agreement) to take all reasonably practicable steps to eliminate or reduce the risk of fatigue and those associated with fatigue. I accept that a requirement for tripartite agreement in the first sentence of clause 139.12.1 on a case-by-case basis allows FRV to make a proper risk assessment of a particular proposed special roster allocation in light of the circumstances. But that an employee is rostered in excess of the cap in clause 139.12, without the tripartite agreement in the first sentence of clause 139.12.1, means no more than the system in place to ensure compliance has failed and that rostering to a special roster has happened in breach of the limitation and the conditions imposed by the agreements. Such a failure of system and breach of limitation and conditions does not disentitle an employee so rostered by the employer to the benefit of the second sentence of clause 139.12.1.
The construction for which FRV and the UFU contend would have the absurd and undesirable result that an employee who is rostered on a special roster more than 8 times per year is not only deprived of the fatigue management benefit of not being so rostered, because they have been rostered, but also the financial and time in lieu benefit despite have been so rostered by the employer. The time in lieu benefit is itself a fatigue management measure. In my view the entitlement in the second sentence of clause 139.12.1 – which is consequential on being rostered in a particular way – applies independently of the first sentence and of clause 139.12, which are intended to be protective of the health and safety of employees rostered on special rosters. A construction which deprives an excessively rostered employee of the time in lieu fatigue management measure for which the second sentence of clause 139.12.1 also provides, merely because of the absence of the tripartite agreement, is also inconsistent with the evident purpose of clause 139.12.
For completeness, I should note that I reject the applicant’s contention that there was some tacit agreement by the UFU to the rostering for the purposes of clause 139.12.1. I agree with the UFU’s contention that the requisite “agreement” with the UFU necessarily contemplates awareness of the relevant circumstance, consideration of the situation and its consent. There is no suggestion that these elements are present.
The second constructional question
Clause 139.14 provides that:
“[n]o employee will work or be on a special roster more than 7 days consecutively. Any employee who works 7 consecutive days must take 2 consecutive days off. These days will be paid at double time rates.”
The first sentence of clause 139.14 contains two prohibitions. First, an employee will not “work” on a special roster more than 7 days consecutively. Second, an employee will not “be on” a special roster more than 7 days consecutively.
As earlier noted, special rosters are on call and recall rosters to which Commanders and ACFO’s are rostered. These rosters operate in conjunction with the normal roster for working ordinary hours of work of these employees. An employee rostered on a special roster may stop work on the normal roster to undertake the work required by their rostering on a special roster. The terms of clause 139 make clear the difference between being rostered and being recalled to “work” in undertaking actual duties on the roster, as the applicant accepts.[19] Understanding the character of the special roster and when duties are performed on the roster, it is clear that:
· Clause 139.14 makes a distinction between “work” performed on a special roster and merely being rostered “on” a special roster as earlier set out.
· The reference to “work…on a special roster” is not any work or duty performed during a period the employee is rostered on a special roster. It does not extend to duties performed by an employee in their ordinary substantive role whilst rostered on a special roster and is confined to the work undertaken as required by, or as a consequence of, the employee being rostered on the special roster. This is abundantly clear from the context in which the word “work” is used. The whole of clause 139 is concerned with special rosters. It is not concerned with ordinary hours of work. Thus, when clause 139.14 speaks of “work…on a special roster”, both grammatically and contextual it speaks of work associated with the fact that the employee is rostered on a special roster.
· The entitlement to take 2 consecutive days off, in the second sentence, and the penalty payment for the time off taken, in the third sentence, are engaged only when the first of the two prohibitions in the first sentence is not observed. So much is clear from the opening words of the second sentence: “[a]ny employee who works 7 consecutive days . . .”.
· The reference to “works” in the second sentence is to work associated with or required by the fact that the employee is rostered on the special roster. An employee who works by performing their normal duties while on a special roster is not performing duties or work associated with or required by the special roster.
· The following example given by FRV in its outline of submissions[20] about the operation of clause 139.14, is in my view, correct:
“…an ACFO who performs special roster duties on days 1 and 8, and their existing role on days 2 to 7, does not trigger the penalty in cl 139.14”.[21]
On its proper construction, “work” on the special roster is work that is associated with, or required by, the special roster. The “work” must be performed by the employee on each of 7 consecutive days before the time off and associated penalty entitlement for that time off is triggered. The applicant’s contention for a contrary construction as earlier summarised is wholly unpersuasive and is rejected for the reasons stated above. The ordinary grammatical meaning and usage of the words in clause 139.14, read in context, yields a clear result as to the meaning of “work” in favour of the construction for which both FRV and the UFU contend.
As to the applicant’s specific claim under clause 139.14, I agree with FRV’s contention that once clause 139.14 is properly construed, the applicant’s claim falls away. The applicant does not suggest that he performed work on the special roster on each day of any period of 7 consecutive days. Rather, he appears to rely upon the “combination of [his] normal ordinary hours work, and [his] work recalled on special rosters”. That the applicant relies on a combination of work on his usual roster and work on a special roster to claim an entitlement under clause 139.14 is clear from his submissions in reply in which he contends:
“Mr McQuade’s claim rises no higher than that prior to, and then upon completion of, his special roster work during a rostered special roster week, he undertakes his usual Executive Manager role without any days off. The effect of this is that he very frequently has to work 7 or more days straight.”[22]
Such a pattern does not engage with clause 139.14, which is relevantly concerned only with work that is associated with, or required by, the special roster.
The “work recalled on special rosters” upon which he relies appears confined to his attendance on Webex teleconferences to receive weather updates.[23] If these attendances constitute “work” on a special roster (a question that need not be determined since it is not contended that the applicant performed such work on any of the rosters in question 1(f) on 7 consecutive days), the applicant appears to have attended those teleconferences on (at most) two consecutive days. Therefore the relevant entitlement under clause 139.14 is not established.
Conclusion
For the reasons stated I answer the questions posed as follows:
1.With respect to the relevant special rosters referred to at 1(f) above (collectively, the Special Rosters):
(a) Was the Applicant rostered on any and, if so which, of the Special Rosters in 1(f) above?
Answer: The applicant was rostered on each of the special rosters set out at question 1(f). However, as the MFB 2016 Agreement only commenced operation on 25 February 2019, the special rosters at 1(f)(i) to 1(f)(xii) were not governed by clause 139 of the MFB 2016 Agreement but only by the practice of the MFB in applying most of the terms of that which was an agreement or proposed agreement not in operation. The MFB 2016 Agreement did not in terms purport to have any retrospective operation.
(b) If ‘yes’ to question 1(a) above, was he so rostered in accordance with the requirements of the MFB 2016 Agreement or the Agreement, including under cl 139.12.1 of the MFB 2016 Agreement or the Agreement, as the case may be?
Answer: In so far as the MFB 2016 Agreement and then the Agreement operated on the special rosters, the applicant was not rostered in accordance with the agreements in every case. Clause 139.12 prohibits rostering an employee more than 8 times on any special roster in any 12-month period. Clause 139.12 requires rostering of an employee to a special roster which is in addition to 8 times per year to only occur by agreement between the employer, employee and the UFU. The applicant was not rostered on such of the special rosters set out at question 1(f) as exceed in any 12 month period, the limit in clause 139.12 because he was not rostered by agreement between the employer, employee and the UFU in accordance the first sentence of clause 139.12.1. The excess rostering exceeded the limit and did not obtain the requisite agreement.
(c) For the Special Rosters at 1(f)(i) to 1(f)(xxx), was the Applicant entitled to be paid and/or provided with a penalty or entitlement, howsoever described, under clause 139.12.1 of the MFB 2016 Agreement, and if so which?
Answer: See answer to (d) below.
(d) For the Special Rosters at 1(f)(xxxi) to 1(f)(xxxv), was the Applicant entitled to be paid and/or provided with a penalty or entitlement, howsoever described, under or clause 139.12.1 of the Agreement, and if so which?
Answer: Save to say that there will be some special rosters in 1(f) to which the applicant was rostered which will raise an entitlement to penalty payments and time in lieu prescribed by the second sentence of clause 139.12.1, I am unable to answer with the specificity sought in the question.
Clause 139.12 engages the prohibition by reference to “any 12 month period” The first sentence of clause 139.12.1 allows (subject to the tripartite agreement) rostering in addition to 8 times “per year” and similarly the second sentence engages with the consequences of an employee being rostered more than 8 times per year. Assuming “per year” is shorthand for “any 12 month period”, the answer to questions 1(c) and (d) depends on when the 12 month periods commenced and ended. It also depends on whether the rostering which occurred prior to the MFB 2016 Agreement commencing operation (25 February 2019) by MFB is counted for the purposes of the assessment.
The prohibition in clause 139.12 is on excess rostering “[i]n any 12 month period”. Assuming the special rosters at 1(f)(i) to 1(f)(xii) are to be counted, the special rosters at 1(f)(i) to 1(f)(xxx) span a period of nearly 26 months, but when does the 12 month period begin and end? The answers sought by questions 1(c) and (d) can only be precisely given once that question is answered. Assuming the first 12 month period commenced on 2 May 2018 (special roster 1), the limit is reached at the end of special roster 8 when ended on 9 October 2018 (noting that at this time the MFB 2016 Agreement was not in operation). Thus, special rosters 9 through 16 would trigger the second sentence of clause 139.12.1. But since the prohibition applies to excess rostering “[i]n any 12 month period” (emphasis added), on a strict reading, there may be a rolling prohibition since every month (and perhaps every week) there is to be disregarded the rostering occurring 13 months prior and the counting of the roster occurring in the most recent month. Thus, using the scenario above:
·special roster 1 is to be disregarded;
·the limit is reached at special roster 9 (even though this roster had previously triggered the second sentence of clause 139.12.1 but noting that at this time the MFB 2016 Agreement was not in operation); and
·special roster 17 and likely also 18, trigger the second sentence of clause 139.12.1 both of which are rosters for periods after the MFB 2016 Agreement commenced operation.
On this rolling analysis, applied to the special rosters in question 1(f), there would appear to be no point at which the count of special rosters returns to zero so that clause 139.12 has no or limited meaningful ongoing operation.
A different result yields if the phrases “any 12 month period” and “per year” are construed as meaning a fixed 12 month period such as a calendar year. In such event, the limit trigger in clause 139.12 is reset to zero at the beginning of each such year.
The meaning of these phrases and their impact upon the special rosters in question 1(f) has not been addressed by the parties in their submissions.
(e) For each Special Roster for which the answer to questions 1(c) or 1(d) is ‘yes’, to what payment, penalty or entitlement, howsoever described, was the Applicant entitled under clause 139.12.1 of the MFB 2016 Agreement or the Agreement?
Answer: I am unable to answer by reference to the particular rosters for the reasons set out in answer to (d) above. However, while the agreements were in operation, to the extent that any such roster onto which the applicant was rostered was in excess of 8 times per year, the applicant was entitled to be paid double time for all time so rostered and to receive time off equal to the time rostered as time in lieu.
2. With respect to the entitlements in accordance with cl.139.14 of the MFB 2016 Agreement and the Agreement:
(a) What is the proper meaning of “work” as used in that sub-clause?
Answer: “work” on the special roster is the performance of work or duty that is associated with or required by the special roster. Work does not include the carrying out of work or duty required by an employee’s substantive role.
(b) On what days during or sequential to the Special Rosters in 1(f) did the Applicant “work” within the meaning in cl.139.14 of the MFB 2016 Agreement and the Agreement?
Answer: The applicant did not “work” on any special roster in 1(f) for 7 days consecutively.
(c) Do clauses 139.14 of the MFB 2016 Agreement and 139.14 of the Agreement provide an entitlement to two consecutive days off, paid at double time rates:
(i)where an employee “works” seven consecutive days (but no more than seven consecutive days); or
(ii)only where an employee “works” more than seven consecutive days?
Answer: The entitlement to two consecutive days payable at double time arises when an employee “works 7 consecutive days.” If an employee who works 8 or more consecutive days on a special roster, the employee will also be entitled to the time in lieu and associated penalties, but such rostering of the employee and associated work would be in breach of the prohibition in the first sentence of clause 139.14.
(d) Are non-special roster days included in the number of consecutive days required to be “worked” to give rise to the entitlement to two consecutive days off in clause 139.14 of the MFB 2016 Agreement and Agreement (or is it only special roster days that count for that purpose)?
Answer: No. Only special roster days count.
DEPUTY PRESIDENT
Appearances:
Mr C Gianatti, solicitor for the applicant
Mr F Parry KC with Mr A Pollock of Counsel for the FRV
Mr H Borenstein KC with Mr J McKenna of Counsel for the UFU
Hearing details:
2022
Melbourne
9 and 10 March (before Deputy President Mansini)
[1] See Applications by Block [2020] FWC 3428 and the operative order (26 August 2020) PR720617
[2] The MFB 2016 Agreement commenced operation on 25 February 2019, but it appears not in dispute that in practice the then MFB applied the bulk of the MFB 2016 Agreement terms to employees to be covered by that agreement (including the applicant) between 18 May 2018 and its commencement.
[3] United Firefighters’ Union of Australia v Mr Gavin Wright and Country Fire Authority[2020] FWCFB 3315
[4] Applicant’s Outline of Submissions dated 18 November 2021 at [2]
[5] FRV’s Outline of Submissions dated 25 January 2022 at [3]
[6] UFU’s Outline of Submissions dated 25 January 2022 at [25]
[7] Applicant’s Outline of Submissions dated 18 November 2021 at [30]-[32]
[8] FRV’s Outline of Submissions dated 25 January 2022 at [3(a)] and [7]
[9] UFU’s Outline of Submissions dated 25 January 2022 at [31]-[39]
[10] Applicant’s Outline of Submissions dated 18 November 2021 at [33]-[36]
[11] FRV’s Outline of Submissions dated 25 January 2022 at [3(b)] and [16]-[17]
[12] UFU’s Outline of Submissions dated 25 January 2022 at [50]-[53]
[13] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein (the analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc [2021 FCAFC 123, 308 IR 171 at [40]-[43])
[14] Exhibit R1 - Statement of David Bruce dated 25 January 2022 at [13]-[16]
[15] Occupational Health and Safety Act 2004 (Vic) s 25
[16] Exhibit R1 - Statement of David Bruce dated 25 January 2022, annexure DB-1
[17] Ibid at [20]-[23]
[18] Exhibit A1 – Statement of Darren McQuade dated 18 November 2021 at [21]-[22]
[19] Applicant’s Outline of Submissions dated 18 November 2021 at [33]
[20] Noting however that if FRV rostered an employee to a special roster on 8 consecutive days, as contemplated by the example, that rostering would breach the prohibition in the first sentence of clause 139.14 because the employee will be on a special roster for more than 7 days consecutively.
[21] FRV’s Outline of Submissions dated 25 January 2022 at [14(a)]
[22] Applicant’s outline of submission in reply dated 22 February 2022 at [27]
[23] Exhibit A1 – Statement of Darren McQuade dated 18 November 2021 at [44(a)-(g)]
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