Glenn Berryman v Commissioner for Public Employment

[2015] FWC 8214

[2015] FWC 8214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Glenn Berryman
v
Commissioner for Public Employment
(C2015/5996)

Northern Territory
COMMISSIONER BISSETT	MELBOURNE, 7 DECEMBER 2015

Alleged dispute about any matters arising under the enterprise agreement.

[1] Mr Glenn Berryman has made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute pursuant to the provisions of the Northern Territory Public Sector Fire and Rescue Service 2011-2013 Enterprise Agreement (the Agreement).

[2] Whilst Mr Berryman’s employment is covered by the Agreement, Mr Berryman is employed pursuant to Public Sector Employment Management Act (NT) (PSEM Act).

[3] Mr Berryman holds the rank of Station Officer with the Northern Territory Public Sector Fire and Rescue Service (NTFRS).

[4] In early 2013 Mr Berryman was transferred to the position of ‘Station Officer Auxiliary and Volunteer Training’. Mr Berryman says this transfer was actioned in accordance with clause 51.1 of the Agreement. He now seeks a transfer ‘back’ in accordance with that clause. The NTFRS has refused his request.

[5] Mr Berryman was represented in proceedings by Mr Bull of United Voice.

[6] The NTFRS is an Agency of the Northern Territory Public Service. The dispute of Mr Berryman is therefore with the Commissioner for Public Employment for the Northern Territory (CPE). Mr Hathaway of the CPE represented it in proceedings.

[7] I am satisfied that the dispute before me is a matter arising under the Agreement. It relates squarely to the operation of clause 51.1 of the Agreement. Further, I am satisfied that Mr Berryman and his representative have sought to resolve the matter prior to its referral to the Commission. I am therefore satisfied that I have the power to arbitrate the matter.

Background

[8] Mr Berryman is a Station Officer with the NTFRS. In December 2012 he lodged an ‘expression of interest’ in two (of five) positions advertised by the NTFRS. He was successful in gaining the position of Station Officer Auxiliary and Volunteer Training and was transferred ‘at level’ into the position on 28 March 2013. In transferring to this position Mr Berryman also transferred from a shift work position to a day work position.

[9] On 2 March 2015 Mr Berryman sent a memo to District Officer Ian Lockley requesting a transfer:

back to Operations as a Station Officer on shift at the completion of my 2 year transfer period if not before.

My request is in accordance with the Northern Territory Public Sector Fire and Rescue Service 2011-2013 Enterprise Agreement.

Part 6 – Transfers

Section 51 Transfers between shifts and centres

Section 51.1 Employee Voluntary Transfer 1

[10] On 12 March 2015 District Officer Lockley advised Mr Berryman that his application to return to shift work was not approved.

[11] Mr Berryman sought a review of the decision of District Officer Lockley in accordance with s.59 of the PSEM Act. On 15 June 2015 United Voice, representing Mr Berryman, was advised that ‘the agency’s decision to deny Mr Berryman’s request on the basis of operational requirements was reasonable.’ 2

[12] Mr Berryman says that he voluntarily transferred to the position he currently occupies over two years ago and that clause 51.1 of the Agreement operates such that he is entitled to seek to transfer back to the shift position he previously occupied and that NTFRS management is obliged to accommodate his request.

[13] Mr Berryman agreed in his evidence that in late 2012 and early 2013 when he applied for, was interviewed for and was successful in gaining the position he did not ask, nor was he told, that the transfer was being effected in accordance with clause 51.1 of the Agreement. Mr Berryman says he assumed the transfer was in accordance with clause 51.1 as it was ‘at level’, that his expression of interest was for a transfer and that he ‘volunteered’ for the transfer by virtue of his application.

[14] Mr Berryman says that at the time of his transfer, there was a lack of written clarification as to the terms of the transfer.

United Voice’s position

[15] United Voice says that Mr Berryman was transferred in accordance with clause 51.1 of the Agreement and that NTFRS is obliged to transfer him back.

[16] In support of its claim, United Voice submits that any transfer within the NFTRS is made pursuant to clause 51.1 of the Agreement unless agreed otherwise by the employee and NTFRS or unless specifically stipulated by the NTFRS. As Mr Berryman did not agree specifically with NFTRS and/or because it was not specifically stipulated in the advertisement for the positions that clause 51.1 of the Agreement did not apply then clause 51.1 of the Agreement must have applied.

[17] United Voice further submits that clause 51.1 is ambiguous and that custom and practice and circumstances supports its interpretation of how clause 51.1 operates.

[18] In relation to clause 46 of the Agreement (which calls up the PSEM Act – see below), United voice submits that this clause only deals with recruitment from outside the NT Public Service and promotion to a higher rank within the NTFRS. As the lateral transfer of Mr Berryman does not fall within any of these categories it says the transfer could not have been effected under the PSEM Act. The only other provision of the Agreement dealing with transfers is clause 51 so it must apply.

[19] As clause 46 does not apply to Mr Berryman’s transfer so the provisions of the PSEM Act do not apply to his transfer.

The CPE’s position

[20] The CPE says that Mr Berryman applied for and was successful in achieving a transfer to another position (the one he currently occupies) in 2013. The CPE says that the 2013 transfer was not a transfer under clause 51.1 of the Agreement but was in accordance with s.29 of the PSEM Act as clause 46 of the Agreement does not operate to restrict the PSEM Act. It says that clause 51.1 of the Agreement is used when there is a requirement for an officer to work on special projects, when positions are hard to fill or for short term vacancies.

The issue

[21] The matter to be resolved therefore is if Mr Berryman’s transfer to the Station Auxiliary and Volunteer Training position was a voluntary transfer pursuant to clause 51.1 of the Agreement. If the answer to this question is yes, the next question is whether the NTFRS is obliged to meet his request to transfer back to his original position as Station Officer in Operations.

[22] To deal with this issue first of all requires a consideration of whether United Voice is correct its characterisation of the operation of the Agreement and the PSEM Act.

The Agreement

[23] Two clauses of the Agreement deal with promotion and transfer of employees.

[24] Clause 46 of the Agreement deals with recruitment and promotion. It says:

46. RECRUITMENT, PROMOTION AND LATERAL ENTRY

46.1 Where the Director or delegate has had little notice of a temporary vacancy which requires filling, that temporary vacancy may be advertised by circular within the NTFRS, rather than by insertion of the temporary vacancy notice in the Fire Gazette.

46.2 The recruitment and promotion of employees by the NTFRS will be conducted in accordance with PSEM Act and subordinate legislation which provide for recruitment and promotion on merit. Merit is currently defined in the PSEM Act as “the capacity of the person to perform particular duties, having regard to the person’s knowledge, skills, qualifications and experience and the potential for future development of the person in employment in the public sector”. Merit is determined through a fair and transparent assessment process based on the stated principles of merit, natural justice, human resource management and conduct.

46.3 The recruitment and promotion of non-NTFRS applicants for operational Firefighter or Station Officer positions will continue to only occur if there is no suitably qualified applicant from the NTFRS. Provided that, “suitably qualified” means having the rank qualifications and satisfying the merit principle and selection criteria for the position at interview, and satisfying the interview panel in relation to referee and other checks supportive of appointment to the rank and position.

46.4 Assessment and appointment of non-NTFRS applicants will be in accordance with Attachment C – Lateral Entry Policy.

[25] Clause 51 of the Agreement states:

51. TRANSFER BETWEEN SHIFTS AND CENTRES

51.1 Employee Voluntary Transfer

An employee may apply to transfer from day work to shift work or vice versa. Approval of such an application by the Director or their delegate will be dependent on:

(a) the needs of the service; and

(b) the career development of the applicant.

Where an employee voluntarily transfers and the duration is to be negotiated, the maximum period of two (2) years for transfers may be waived if the employee and the Director or their delegate agree to a variation. The negotiated term may be reduced to the duration, as determined by the Director or their delegate, if the transfer is no longer in the best interests of the NTFRS.

[26] Clause 51.2 of the Agreement deals with circumstances where the Director may compulsorily transfer an officer and the conditions that attach to such a transfer. It is not relevant to the matter I need to determine.

[27] The terms of the Agreement in respect of clause 51.1 – voluntary transfers have not changed from the terms of the Northern Territory Public Sector Fire and Rescue Service 2007-2010 Partnership Agreement and also reflects provisions in the Fire and Rescue Service Employees (Northern Territory) Award 2001 (a pre-reform award).

Applicable legal principles

[28] The principles applicable to interpreting an agreement, and hence clause 51.1 of the Agreement, were considered by the Full Bench in Meat Industry Employees Union v Golden Cockerel Pty Ltd 3 (Golden Cockerel) where it was said:

[41] From the foregoing, the following principles may be distilled:

1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [Fair Work]Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

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

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

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

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

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

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

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

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

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

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

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

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

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

Is clause 51.1 ambiguous?

[29] The first matter I must determine is if any ambiguity exists as to the operation of clause 51.1 of the Agreement.

[30] United Voice says that all voluntary transfers with NTFRS occur under clause 51.1. It says Mr Berryman’s application in 2012 and subsequent transfer in 2013 was therefore a transfer in accordance with the provisions of clause 51.1 such that, in requesting a return to shift work in March 2015, Mr Berryman was exercising his right under clause 51.1 and the NTFRS is obliged to grant his request. Further, it was put by United Voice that the drafting of a policy in relation to transfer arrangements and the bargaining position of the NTFRS in relation to the Agreement provide support to Mr Berryman’s claim.

[31] United Voice submits that the history of transfers in NTFRS is that, in circumstances where an employee applies for a transfer – that is the transfer is a voluntary transfer – the employee retains the right to go back to where they came from within the two year period mentioned in the clause.

Was there a common understanding that all transfers occur under clause 51.1?

[32] United Voice suggests that there is a common understanding that all transfers are actioned according to clause 51 of the Agreement unless specified otherwise. It suggested that it was ‘notorious’ that when an application for transfer was made it was, as a matter of course, pursuant to clause 51.1 of the Agreement. However, no evidence was put before the Commission that would support such a conclusion.

[33] United Voice relied on an expression of interest for a vacancy issued in 2009 4 and a subsequent email clarifying that advertisement to support its contention as to the application of clause 51.1 to transfers. This 2009 expression of interest specifically mentions that the transfer would be in accordance with clause 51.1 of the agreement that then applied (which is in the same terms as clause 51.1 before the Commission) but makes clear that the provisions of the PSEM Act and the agreement both applied and that, ultimately, the transfer would be in accordance with the PSEM Act.

[34] It seems to me that the email sent with respect to the basis of filling the 2009 vacancy attempts to cover all bases. However, the specificity in the vacancy notification to which it refers (‘Shall be in accordance with part 6, Section 51.1 (Transfers)’ …) suggests that there was not a common understanding that all transfers – unless otherwise specified – occurred subject to clause 51.1. Rather, it suggests that the PSEM Act applied to the transfer and clause 51.1 only applied when it was specified to do so.

[35] The evidence of Mr Spain of the NTFRS gives no support to any suggestion that there is a common understanding as to the application of clause 51.1 to transfers within the NTFRS. His evidence as to the operation of clause 51.1 was at odds with the submission of United Voice.

[36] Submissions and evidence (limited as it was) of how others may or may not have been transferred, without evidence of the applications made by them and the detail of the positions advertised, is of little use in resolving this dispute. Assertions as to the basis of transfer do not substitute for evidence and evidence as to custom and practice may be of little use in determining the correct application of the clause unless there is:

clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. 5

[37] There was no evidence put forward by United Voice as to the ‘common understanding’ of the parties as to the application of clause 51.1 to all transfers unless otherwise specified.

[38] The evidence before me therefore does not allow me to conclude that that it was common practice or commonly understood that transfers would be effected under clause 51.1 of the Agreement unless otherwise stipulated or agreed.

Are circumstances surrounding bargaining of the Agreement relevant?

[39] United Voice suggested that evidence of a bargaining position adopted by NTFRS with respect to clause 51 indicated that the effect of the clause was as United Voice had submitted – that is that all voluntary transfers occurred under the auspices of clause 51.1.

[40] The evidence before the Commission 6 indicates that the changes sought to the operation of clause 51 of the previous agreement in the context of bargaining for the existing Agreement all relate to changes sough to the clause 51.2 which deals with compulsory transfers. There is no evidence of any changes sought to the operation of clause 51.1 such that any support for the claims of United Voice can be found in this material.

[41] The circumstances surrounding the bargaining are therefore not relevant to the matter before me.

[42] Likewise, I do not consider the content of a draft policy on transfers that has not been finalised as being of any assistance in resolving this matter.

Conclusion as to ambiguity

[43] I have considered carefully the submissions of United Voice set out above as to ambiguity. Despite those submissions I am not convinced that there is any ambiguity about the wording of clause 51.1. The words of the clause need to be considered without the surrounding noise of the particular dispute before me. Ambiguity that does not exist should not be strived for.

[44] When properly considered the clause can be seen to have some clearly distinct features:

1. It allows an employee to apply for a transfer from day work to shift work or vice versa.
2. An application is subject to approval by the Director.
3. The needs of the service and the career development of the applicant are mandatory considerations by the Director in deciding an application.
4. There is a capacity for the duration of a transfer to be negotiated but otherwise the maximum period of transfer is two years.

[45] Whilst the clause is not explicit, given the time limited nature of such a transfer it can be presumed that an employee would return to his or her original (or some equivalent) position at the expiration of the transfer period. In any event this is not a matter I need to determine.

[46] There is no evidence as to a common understanding that clause 51.1 applies to all transfers unless otherwise stipulated. The evidence, limited as it is, suggests that clause 51.1 applies only where it is stipulated. Whilst the wording of clause 51.1 could be clearer there is nothing to suggest that it overrides the provisions of the PSEM Act that applies, generally, to transfers.

[47] For all of the reasons given I find that clause 51.1 is not ambiguous or unclear as to its meaning. The clause allows for an application for transfer in particular circumstances to be made and specifies the basis on which it will be considered, no more and no less.

[48] Rather, the dispute before me is about the application of this clause to Mr Berryman and whether or not his transfer was effected in accordance with clause 51.1 such that, after two years, he has a right to return to his shift work position. There is therefore, in my opinion, nothing further to be achieved by considering any of the circumstances surrounding the clause.

[49] Having found that no ambiguity exists in the meaning of clause 51.1 it turns to me to consider if Mr Berryman’s transfer was in accordance with clause 51.1 and therefore if he has a right to return to shift work after the expiration of two years.

[50] The next matter to decide is if there is more than one way to transfer and, if there is, how Mr Berryman was transferred.

Is clause 46 relevant or is clause 51.1 the only clause relevant to transfers?

[51] Clause 46 of the Agreement states that ‘recruitment and promotion of employees by the NTFRS will be conducted in accordance with PSEM Act’.

[52] United Voice submits that clause 46 does not mention transfers and therefore its operation is limited to recruitment and promotion matters only. It further says that clause 51.1 is the only clause that deals with transfers and therefore it is the clause that must apply in Mr Berryman’s case.

[53] However, clause 51.1 of the Agreement does not appear to be the only mechanism by which an employee may gain a transfer within the NTFRS. This is evident because firstly, clause 51.1 only applies where a transfer is from shift work to day work and vice versa. There clearly will be circumstances where an employee might apply to transfer but remain on shift or day work. Second, a transfer under clause 51.1 is apparently time limited (there appears to be a two (2) year maximum transfer period). It may well be envisaged that there are circumstances where an employee might seek an on-going transfer. Third, there is nothing in clause 51.1 that suggests a request to transfer under its terms is necessarily subject to a competitive selection process or consideration of the merit principle. The only consideration required of the Director is the needs of the service and career development of the employee. Fourth, clause 51.1 does not require any advertising of a position to which an employee might seek to transfer. Rather it seems to establish a process by which an employee may approach and apply directly to the Director for a transfer.

[54] If clause 46, and hence the PSEM Act, had no application in relation to transfers then clause 51.1, on its wording, would operate to limit when transfers were available. This appears an absurd outcome.

[55] Clause 46 does no more than call up specific provisions of the PSEM Act. That other provisions of the PSEM Act are not specifically mentioned in the Agreement as applying to employees covered by the Agreement cannot mean that none of those provisions do apply to Mr Berryman and his co-workers.

[56] Section 4 of the PSEM Act (Application) does not suggest that parts of the statute can be overridden through non-reference in an industrial instrument. Further, it would be most unusual for an agreement to do such a thing without some express provision in the Agreement itself.

[57] The wording of clause 46 is of no consequence as it does not operate to limit the application of the PSEM Act to employees covered by the Agreement. For these reasons I am satisfied that the PSEM Act apply to transfers within the NTFRS.

How was Mr Berryman transferred into his current position?

[58] Matters associated with employment, promotion, transfer and resignation of employees of the NTPS generally are set out in Part 5 of the PSEM Act. I am satisfied that these provisions apply to Mr Berryman.

[59] Section 29 of the PSEM Act gives a Chief Executive Officer of an Agency the power to employ, promote and transfer an employee. A selection must be in accordance with the merit principle (s.30) except in specific circumstances including a transfer at the initiative of the Chief Executive Officer under s.35 of the PSEM Act (that is, a compulsory transfer).

[60] Section 30 requires that where the duties of a position are to be performed for a period exceeding 6 months by a person employed, promoted or transferred, the position must be advertised.

[61] The positions applied for by Mr Berryman were advertised within the NTFRS on 7 December 2012. The advertisement sought expressions of interest, limited the potential pool of candidates to those with a substantive rank of Station Officer or Leading Firefighter (Station Officer being a level above Leading Firefighter) and specified that assessment would be based on knowledge, skills, experience, qualifications and potential for future development – that is the merit principle as defined in s.5D of the PSEM Act.

[62] That the pool of potential candidates for the positions was limited to Station Officer/Leading Firefighter does not mean that the vacancies were not advertised and filled in accordance with s.29 of the PSEM Act. A number of the positions were filled on promotion which can only be effected in accordance with the PSEM Act (see clause 46 of the Agreement).

[63] The notice of the vacancies does not indicate that the positions would be filled subject to any provisions of clause 51 of the Agreement.

[64] Notice of the successful applicants was broadcast within the NTFRS on 12 February 2013. Mr Berryman was successful on transfer, three positions were filled by promotion and one remained unfilled. 7 Nothing in this notice suggests that clause 51.1 of the Agreement applied.

[65] There is nothing in the notification of the vacancies, the request for expressions of interest or the notice of successful candidates that indicates that resulting transfers would be or were actioned in accordance with clause 51.1 of the Agreement.

[66] Mr Berryman’s evidence was that he believed the transfer he applied for and gained was subject to the provisions of clause 51.1 yet there is no evidence that Mr Berryman acted, or a decision was made by the Director, upon any of the considerations in clause 51.1. Further, there is no evidence, beyond applying for the particular positions,that Mr Berryman had sought to transfer off shift work to day work.

[67] On the evidence before me I am satisfied that Mr Berryman applied for two positions. The positions were only open to employees at the rank of Station Officer/Leading Firefighter but this does not change the fact that Mr Berryman applied for the positions. Mr Berryman’s application was considered by a panel and he was selected on merit for the position of Station Officer Auxiliary and Volunteer Training.

[68] I cannot find that Mr Berryman’s application or transfer were subject to clause 51.1 of the Agreement. Rather, for the reasons given in this decision I am satisfied that his transfer was in accordance with the PSEM Act.

Is Mr Berryman entitled to return to his previous position under clause 51.1?

[69] Given my findings that Mr Berryman was selected for the position of Station Officer Auxiliary and Volunteer Training through a normal merit selection process and not via the operation of clause 51.1 it is not possible for Mr Berryman to call up clause 51.1 as offering him some right to return to his previous position.

[70] The absence of any advice that Mr Berryman’s transfer in 2013 was not in accordance with clause 51.1 of the Agreement and the absence of any advice that clause 51.1 did not apply to the transfer are not grounds on which it could be inferred clause 51.1 of the Agreement therefore did apply to the transfer.

[71] For the reasons given above Mr Berryman does not have a right under clause 51.1 of the Agreement to transfer back to his former position of operational Station Officer.

[72] In reaching this conclusion I have ignored evidence in relation to compulsory transfers as these are matters under clause 51.2 of the Agreement and not clause 51.1.

Conclusion

[73] I find that Mr Berryman’s transfer was not subject to clause 51.1 of the Agreement. As such he has no right to return to his previous shift work position.

[74] Whilst I do not need to make a decision on it, I am not convinced that the description given to the operation of the clause by Mr Spain of the NTFRS properly reflects the plain meaning of the words of the clause. This would suggest that there is a real need for the CPE, through the NTFRS, to improve its processes and notification such that an employee cannot be confused as to the conditions that attach to a transfer for which they may apply and/or which may be offered to them. Evidence that the employee is so aware would go a long way to minimising future instances of confusion about such matters.

[75] The application by Mr Berryman is dismissed.

COMMISSIONER

Appearances:

S. Bull and E. Early of United Voice for the Applicant.

M. Hathaway of the Commissioner of Public Employment for the Respondent.

Hearing details:

2015.

Melbourne, Sydney and Darwin (video hearing):

November 9.

 1   Exhibit A2.

 2   Exhibit A4, attachment 5.

 3 (2014) 245 IR 394.

 4   Exhibit A5.

 5   Shop Distributive and Allied Employees’ Association v Woolworths Ltd (2006) 151 FCR 513 at 520, cited in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2013] FCA 330.

 6   Exhibit R5, annexures JFO1-JFO4.

 7   Exhibit A4, attachment 2.

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