Fire Rescue Victoria

[2021] FWCA 2452

[2021] FWCA 2452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Fire Rescue Victoria
(AG2021/4055)

FIRE RESCUE VICTORIA OPERATIONAL EMPLOYEES INTERIM ENTERPRISE AGREEMENT 2020

Fire fighting services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 MAY 2021

Application for variation of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 because of ambiguity or uncertainty; appropriate that uncertainty be removed; new provisions inserted; agreement varied.

[1] Fire Rescue Victoria (FRV) has applied under s.217 of the Fair Work Act 2009 (Act) to vary the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 1 (Agreement) to remove an ambiguity and uncertainty.

[2] The United Firefighters’ Union (UFU) is covered by the Agreement and supports the application. The parties were directed to file submissions in support of the application for the matter to then be determined by way of a hearing. On 23 April 2021, my Associate was advised that the parties consented to this matter being determined on the papers. As between the parties, there are no disputed facts requiring determination. Accordingly, I consider the application may be determined on the papers without the need for a hearing

[3] The Agreement is one that came into its present iteration when on 26 August 2020 the Commission consolidated and varied amongst other instruments, the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2016, the Country Fire Authority/United Firefighters’ Union of Australia Operational Staff Enterprise Agreement 2010 CFA 2010 and the Country Fire Authority/United Firefighters’ Union Managers Community Safety Enterprise Agreement 2005 (2009 Extended and Varied Version).

[4] It is uncontroversial that at that time the UFU relevantly represented career firefighters, emergency call centre employees and fire agency corporate, administration, technical and mechanical employees across the MFB and CFA and represented the overwhelming majority of MFB employees and that it represented the vast majority of employees who were affected by the variation. The UFU continues to represent the overwhelming majority of FRV employees.

[5] Division A of the Agreement applies to former MFB operational employees and new employees of FRV employed to perform work that is or may be performed by an employee engaged in a classification or occupation referred to in that division. Division B applies to former CFA operational employees and new employees of FRV employed to perform work that is or may be performed by an employee engaged in a classification or occupation referred to in that division. Each abovementioned division is expressed as covering and applying to the UFU.

[6] The application proposes a variation to clauses 85.15.1 and 92.18.1 of the Agreement which presently read as follows:

“85.15 Representation reimbursement

85.15.1 FRV shall reimburse employees who attend, give evidence or participate in proceedings in any Commission, Court, Tribunal, or other body, provided that the proceeding or the requirement to attend or participate in the proceeding relates to or is in the course of the employee’s employment. The amount of the representation reimbursement shall be capped at $5000 unless FRV approves a higher amount.

…

92.18 Representation reimbursement

92.18.1 FRV shall reimburse employees who attend, give evidence or participate in proceedings in any Commission, Court, Tribunal, or any other body, provided that the proceeding or the requirement to attend or participate in the proceeding relates to or is in the course of the employee’s employment. The amount of the representation reimbursement shall be capped at $5000 unless FRV approves a higher amount.”

(the Representation Reimbursement Clauses)

[7] FRV contends that the Representation Reimbursement Clauses do not extend to reimbursement of an employee in connection with disputes or proceedings brought by FRV employees against it. 2 However, it says that on the face of the Representation Reimbursement Clauses, reimbursement for such a proceeding against FRV could fall within the scope of a ‘proceeding [that] relates to or is in the course of the employee’s employment’.³ The UFU agrees that this is a possible construction and submits that the language is capable of supporting a claim for reimbursement by an employee involved in an action or claim against FRV. It says that it is open to argue that an employee who initiates an action against FRV in a Court or Tribunal, or who otherwise participates in a claim against FRV may do so “in the course of [their] employment”.4

[8] The UFU contends (and FRV agrees) that the alternative (and proper construction) of the Representation Reimbursement Clauses in the Agreement is that the clauses do not apply to representative costs incurred by an employee in relation to an action or proceeding brought by or on behalf of that or another employee against FRV. Accordingly, FRV submits that the Representation Reimbursement Clauses are ambiguous or uncertain to the extent that the provisions do not clearly delineate the scope of the proceedings for which an employee is entitled to be reimbursed for representation costs, 5 resulting in some employees continuing to seek reimbursement for representative costs incurred when bringing disputes or claims against FRV.6 For its part the UFU contends that the language of the Representation Reimbursement Clauses is susceptible to more than one meaning, and although the proper construction of the provisions would result in a construction as set out in the first sentence of this paragraph, the Representation Reimbursement Clauses give rise to an ambiguity or uncertainty and so the Commission’s jurisdiction under s 217 of the Act is enlivened.7

[9] In order that the ambiguity or uncertainty identified is removed, FRV proposes (and the UFU agrees) that the Representation Reimbursement Clauses each be varied by adding the following sentence at the end of clauses 85.15.1 in Division A and 92.18.1 in Division B of the Agreement:

“This clause does not apply to representative costs incurred by an employee in relation to an action by or on behalf of any employee against FRV.” 8

[10] The proposed variations seek to clarify the operation of Representation Reimbursement Clauses to ensure neither provides representative reimbursement to employees in connection with disputes or proceedings brought by FRV employees against FRV.

[11] Section 217 of the Act provides the following:

“Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1)  The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

   (a)  one or more of the employers covered by the agreement;

   (b)  an employee covered by the agreement;

   (c)  an employee organisation covered by the agreement.

(2)  If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[12] FRV is the employer covered by the Agreement and therefore has standing to make the application.

[13] As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:

•  The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application; 9 

•  The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context; 10 

•  The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention; 11 

•  However, the Commission must make a finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient; 12 

•  The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgement as to whether the wording of a provision is susceptible to more than one meaning; 13 

•  However, the task of the Commission is to determine whether a provision in an agreement is ambiguous or uncertain. That task is distinct from determining the proper construction or true meaning of a provision of an agreement. 14

•  A provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion concerning the presence of ambiguity or uncertainty. 15 Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, “equity, good conscience and the merits of the matter” (s 578) and it is not bound by the rules of evidence and procedure in relation to a matter (s 591). These provisions of the Act apply to the discharge by the Commission’s functions under s 217(1),16 including by allowing the Commission to have regard to evidence of the parties’ common intention and to the history of agreement provision as part of the “equity, good conscience and the merits” of the matter.17

•  Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission may also have regard to the mutual or common intention of the parties at the time the agreement was made. 18 

[14] I accept that the language of the Representation Reimbursement Clauses is susceptible to more than one meaning. One rival contention (advanced by some FRV employees claiming an entitlement), which on the face of the provisions is at least arguable, is that the Representation Reimbursement Clauses provide an entitlement to employees for reimbursement of representation costs arising from their participation in or attendance at any legal or administrative proceeding before a court, commission, tribunal or other body, provided “the proceeding or the requirement to attend or participate in the proceeding relates to or is in the course of the employee’s employment”.

[15] In the result the Representation Reimbursement Clauses are each capable of supporting a construction that an employee becomes entitled to reimbursement of representation costs incurred in relation to any proceeding in which they participate which relates to or is in the course of the employee’s employment (including one commenced by the employee or another employee or on either employee’s behalf) against FRV.

[16] The other rival contention (for which both FRV and the UFU contend) is that the Representation Reimbursement Clauses of the Agreement do not apply to representation costs incurred by an employee in relation to a proceeding commenced by or on behalf of any FRV employee against FRV. This contention is also arguable for at least three reasons. First, the introductory words in each of the Representation Reimbursement Clauses provide for an entitlement to reimbursement to employees “who attend, give evidence or participate in proceedings in any Commission, Court, Tribunal, or other body” which together with the words of limitation - “provided that the proceeding or the requirement to attend or participate in the proceeding relates to or is in the course of the employee’s employment” – suggest the entitlement is engaged only when the employee participates (by being compelled, or requested as an expert or of necessity) other than as applicant, plaintiff, claimant or complainant in a proceeding taken by the employee against FRV. Secondly, the words “proceeding relates to or is in the course of the employee’s employment” are unlikely to have been used as words of limitation if reimbursement was intended to include a proceeding commenced by an FRV employee against FRV since such a proceeding will almost invariably be one which falls within that description. Thirdly, the evidence of Ms Carolyn Laughton, a former employee of the Metropolitan Fire and Emergency Services Board and now of FRV going to the common intentions of the principal negotiating parties is consistent with this construction. Ms Laughton’s evidence was, inter alia, as follows:

11. FRV has always held the view that the Reimbursement Clauses do not entitle an employee to reimbursement when they bring their own action against FRV, and that this reflects the intended operation of the clause. This was FRV’s intended meaning of the Reimbursement Clauses at the time the FRV Ops Agreement was made by the Fair Work Commission in August 2020. It was also MFB’s intended meaning of the Reimbursement Clause in the MFB Ops Agreement when it was approved by the relevant employees on 16 March 2018 and when that Agreement commenced operation on 25 February 2019.

12. It is FRV’s view that the Reimbursement Clauses only apply where an employee attends, gives evidence or participates in coronial inquests, Royal Commissions or similar enquiries, or other legal proceedings that relate to or are in the course of their employment, but that a proceeding brought by an employee against FRV does not fall within these categories.

13. FRV’s view of the meaning and operation of the Reimbursement Clauses has always been commonly held by the United Firefighters' Union (UFU).

14. Attached to this statutory declaration and marked “CL1" is a letter dated 12 December 2019 from Mr Peter Marshall, State Secretary, Vic Branch of the UFU, to Stephen Warrington, then Chief Officer and CEO of the CFA. The letter relates to the representation reimbursement clause in the Proposed CFA 2016 Operational Agreement, which is replicated in clause 92.18.1 in Division B in the FRV Ops Agreement. 15. In his letter dated 12 December 2019, Mr Marshall says, among other things:

‘The reimbursement [clause] is to be used formatters regarding the employee's employment and is not to be used by an employee to bring industrial matters or cases against the employer. In an industrial matter or case, the employer, the prosecutor or the court system is not requiring the employee to attend, give evidence or participate for the case to proceed, as it is the employee who is lodging the case against the employer. To reimburse for industrial matters or cases against the employer is not consistent with the words of the clause, nor the intent during bargaining.’ 19

[17] I am therefore satisfied that the Representation Reimbursement Clauses in the Agreement are each susceptible to more than one meaning and, in the result, are relevantly ambiguous.

[18] FRV and the UFU contend that the mutual intention of the parties at the time the Agreement was made was as follows:

● the Representation Reimbursement Clauses only apply where an employee participates in ‘coronial inquests, Royal Commissions or similar enquiries, or other legal proceedings that relate to or are in the course of their employment’; 20 and

● the Representation Reimbursement Clauses do notentitle employees to reimbursement of representative costs arising from proceedings brought by an employee against FRV.  21

[19] In support of this contention, FRV and the UFU rely on a letter dated 12 December 2019 from Mr Peter Marshall, State Secretary, Victorian Branch of the UFU, to Stephen Warrington, then Chief Officer and Chief Executive Officer of the Country Fire Authority. 22

[20] The letter relates to the representation reimbursement clause in the Proposed Country Fire Authority 2016 Operational Agreement, which is replicated in clause 92.18.1 of the Agreement and provides (formalities and salutations omitted):

“This reimbursement is to ensure that employees who are required to attend, give evidence or participate in a proceeding about their employment are entitled to seek independent legal representation, and not have to rely on the legal representation provided by their employer.

This will commonly arise where a firefighter is required to give evidence in a Coronial Court, criminal court, or other tribunal as a result of their work. The clause was specifically drafted to capture this, and was not drafted to capture where the employee is initiating proceedings against the employer. This is reflected in the words of 'attend, give evidence or participate.

The reimbursement is to be used for matters regarding the employee’s employment and is not to be used by an employee to bring industrial matters or cases against the employer. In an industrial matter or case, the employer, the prosecutor or the court system is not requiring the employee to attend, give evidence or participate for the case to proceed, as it is the employee who is lodging the case against the employer. To reimburse for industrial matters or cases against the employer is not consistent with the words of the clause, nor the intent during bargaining.”

[21] The UFU also relies on correspondence between Ms Louise Gartland, FRV Executive Director, People and Culture and Mr Marshall, confirming FRV’s and the UFU’s understanding of the intended application of the Representation Reimbursement Clauses. 23

[22] In a letter dated 29 October 2020, Ms Gartland outlined FRV’s understanding of the application of the Representation Reimbursement Clauses as follows:

“It is FRV’s understanding that the purpose of this reimbursement is to allow an employee to seek independent legal advice/representation in matters related to their employment when they are required to attend, give evidence or participate in a proceeding related to their employment and not have to rely on the legal representation provided by their employer. This would typically apply to coronial inquests, expert witnesses in criminal proceedings and commissions of enquiry.

We also understand that it is not intended that this clause will apply where an employee takes an action against FRV relating to an industrial matter.” 24

[23] On 30 October 2020, Ms Laura Campanaro, writing on behalf of Mr Marshall, responded confirming the UFU’s understanding:

“The UFU confirms that it is also of the understanding that Representation Reimbursement Allowance would not apply where an employee takes action in an industrial matter.

It was neither the intention nor the understanding of the Parties when agreeing to the clause during negotiations that the clause would apply where an employee takes action in an industrial matter inclusive of Fair Work Commission matters.

The origin of the Representation Reimbursement Allowance was in the context of the then-employer, Country Fire Authority, seeking separate legal advice to two UFU members/CFA career firefighters who were required to attend and give evidence at the Linton Inquiry (Inquests into a wildfire and the deaths of five volunteer firefighters at Linton 2 December 1998). The CFA at the time made an organisational decision that it had a conflict and, as such, the two members were required to be represented separate to the CFA.” 25

[24] Considering the above, I accept the common intention of the parties (at least those responsible for its principal negotiation and drafting) at the time the Agreement was made was that the Representation Reimbursement Clauses are not to apply to representative costs incurred by an employee in relation to an action brought by or on behalf of any FRV employee against FRV.

[25] There are not matters of which I am aware which would weigh against the exercise of my discretion to vary the Agreement in the manner proposed. I am satisfied that the proposed amendments would have the effect of removing the ambiguity identified and in respect of each provision, is appropriate. Accordingly, I will amend the Agreement to remove the ambiguity and that it is appropriate to do so in the manner proposed.

[26] The application is granted, and a variation order is issued separately.

DEPUTY PRESIDENT

 1   AE881690

 2   Fire Rescue Victoria Outline of Submissions dated 7 April 2021 at [18]; Email to my chambers dated 7 May 2021 from Solicitors for FRV

3 Ibid

 4   United Firefighters’ Union of Australia Outline of Submission date 23 April 2021 at [9]

 5   Fire Rescue Victoria Outline of Submissions dated 7 April 2021at [19]

 6   See Statutory Declaration of Carolyn Laughton dated 23 April 2021 at [18]

 7   United Firefighters’ Union of Australia Outline of Submission date 23 April 2021 at [8], [16]

 8   Email to my chambers dated 11 May 2021 from Solicitors for FRV and UFU

 9   See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]

 10   Ibid at [29]

 11   Ibid at [31]

 12   See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]

 13   See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU (PR903843); Re CFMEU Appeal (Print R2431)

 14   Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67]

 15   Ibid

 16   Ibid at [68]

 17   Ibid

 18    See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]

 19   Statutory Declaration of Carolyn Laughton dated 23 April 2021 at [11]-[15] and annexure CL1 thereto

 20   Statutory Declaration of Carolyn Laughton dated 23 April 2021 at [12]

 21   Fire Rescue Victoria Outline of Submissions dated 7 April 2021 at [22]; Statutory Declaration of Carolyn Laughton dated 23 April 2021 at [11]-[12]; United Fighters’ Union Outline of Submissions dated 23 April 2021 at [12]

 22   Statutory Declaration of Carolyn Laughton dated 23 April 2021 at [14]-[15] and CL1; United Fighters’ Union Outline of Submissions dated 23 April 2021 at [12] and Annexure A.

 23   United Fighters’ Union Outline of Submissions dated 23 April 2021 at [13]-[14].

 24   Ibid at [13] and Annexure B

 25   Ibid at [14] and Annexure C

Printed by authority of the Commonwealth Government Printer

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