Luke Reardon v Broadspectrum Australia Pty Limited

[2019] FWC 7243

[2019] FWC 7243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Luke Reardon
v
Broadspectrum Australia Pty Limited
(C2018/7099)

COMMISSIONER WILSON MELBOURNE, 18 OCTOBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] This decision concerns an application by Luke Reardon, represented by the United Firefighters’ Union of Australia (UFU), pursuant to s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement. Mr Reardon’s application was made on 14 December 2018 under the Transfield Services Defence Base Services (NSW) Fire and Rescue Enterprise Agreement 2015 (the 2015 Agreement), which applied to his employment at the time. 1

[2] The matters in dispute relate to Mr Reardon’s classification as an Operational Firefighter by his employer, Broadspectrum (Australia) Pty Ltd (Broadspectrum), which provides firefighting services at a number of defence force bases. Broadspectrum was formally known as Transfield Services. The enterprise agreement covers the company’s work associated with its contract in NSW.

[3] Mr Reardon commenced employment with Broadspectrum as a Watchroom Operator at the RAAF Base Wagga in July 2016 and moved to a firefighting role in December 2016. Having moved through the bases’ firefighting ranks, he is presently engaged as a Firefighter Level 3 and is seeking reclassification to the rank of Qualified Firefighter on the basis that his service as a “Retained Firefighter” for New South Wales Fire and Rescue should be taken into account in determining his classification.

[4] The 2015 Agreement was replaced in February 2019, after Mr Reardon’s application was made, with the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018 2 (the 2018 Agreement). Because concerns were held by me about whether Mr Reardon’s application was within jurisdiction given the 2015 Agreement had been replaced, the parties were invited to provide submissions on the subject. For the reasons set out below, I find that Mr Reardon’s application is within jurisdiction and may be determined.

[5] The matter was not the subject of a hearing with parties indicating they were content for the matter to be determined on the papers.

[6] After consideration of the merits of Mr Reardon’s application, the question of whether Mr Reardon’s service with Fire and Rescue NSW as a Retained Firefighter is to be taken into account in determination of his eligibility for the rank of Qualified Firefighter is answered in the affirmative.

BACKGROUND

[7] A short witness statement has been provided in this matter by Mr Reardon which indicates his essential circumstances, as follows:

•  he has been continuously engaged as a “Retained Firefighter” for New South Wales Fire and Rescue since 19 December 2012, about which he says he has received payment for attendance at individual firecalls and that his “employment with Fire Rescue NSW involves payment for attendance at a minimum number of calls as well as training and events”; 3

•  he was first employed by Broadspectrum at RAAF Base Wagga, NSW on 16 July 2016 as a Watchroom Operator. In December 2016 he progressed to the position of Firefighter Level 1 and then Firefighter Level 2 at the anniversary of his engagement as a firefighter. He then moved to the position of Firefighter Level 3 “approximately a year later”; 4 and

•  after becoming aware that other Broadspectrum employees had relied upon their service with Fire and Rescue NSW to be reclassified he made application on 20 March 2018 to be reclassified as a Qualified Firefighter, however the application was unsuccessful. 5

[8] Mr Reardon’s case in this matter rests almost entirely on him having been a Retained Firefighter continuously since December 2012 and having received payment for the service which provides him with the requisite qualifications to be reclassified as a Qualified Firefighter.

[9] Against the matters put forward by Mr Reardon are those argued by Broadspectrum which includes the witness statement of Colin Anderson Broadspectrum’s National Operations Manager for Airfield Refuelling Rescue and Firefighting. Mr Anderson argues that the intent of the progression clause in the 2015 Agreement was the same as for that applying to the company’s Victorian Fire Service Agreement and that only “experience as a full time paid firefighter within the industry was considered acceptable for progression”. 6 Mr Anderson also argues that:

“The position of a retained firefighter is not considered a full time paid firefighter position. In Victoria, on which the wording of the NSW agreement has been copied there is no such thing as a retained firefighter. There is only, full time or volunteer firefighters. Unfortunately, when copying the wording of the NSW document it was an oversight that retained firefighters, (who are part time firefighters who get paid) were not considered.” 7

[10] An award of the Industrial Relations Commission of New South Wales is the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2017 (the NSW Retained Firefighting Award) which is expressed to regulate the rates of pay and conditions of employment for employees covered by the award. In turn the award defines an employee as being:

“a person classified by the Department as a Retained Firefighter and appointed as a Volunteer Firefighter pursuant to the provisions of the Fire Brigades Act 1989.” 8

[11] The Fire Brigades Act 1989 (NSW) has since been renamed as the Fire and Rescue NSW Act 1989 (NSW). Neither the Retained Firefighting Award nor the Fire and Rescue NSW Act define the terms “Retained Firefighter” or “Volunteer Firefighter”. Nonetheless the Award uses the terms “retained” and “retainer” repeatedly. In addition, it is to be observed that the Award plainly treats Retained Firefighters as employees and provides that “rates of pay and retainers” of varying levels are to be paid to persons covered by it. The retainer level varies according to the amount of time a firefighter is available. So far as is relevant to the Firefighter level, the following is provided:

6.3 Retainers, Rates of Pay and Classifications

6.3.1 Entitlement Codes

6.3.1.1 Firefighter Retainers

Retainer Level	Compulsory availability	Entitlement Code
per week
Standard Retainers (anytime, any day of the week)
Base	24 hours	A
Recruit Firefighter,	50%	48 hours	B
Firefighter and	75%	72 hours	C
CFR Firefighter	100%	96 hours	D
Weekday Retainers (between 0600 hours and 1800 hours, Monday to Friday only)
50%	30 hours	B
75%	40 hours	C
100%	50 hours	D

[12] These retainer levels then translate into monetary rates as follows (note that the reproduced table has been truncated):

MONETARY RATES

The following retainers, rates of pay and allowances are effective on and from the dates shown.

Table 1 - Retainers

Clause	Retainers per fortnight	Retainer Level	Code	17 February	16 February	15 February
2017	2018	2019
$	$	$
6.3	Firefighters (all)	Base	A	68.30	70.00	71.75
50%	B	136.59	140.01	143.51
75%	C	204.89	210.01	215.26
100%	D	273.18	280.01	287.01

…

         Table 2 - Rates of Pay

Clause	Description		Code	17 February	16 February	15 February
2017	2018	2019
$	$	$
6.3	Recruit Firefighter	1st hour	M	28.91	29.63	30.38
Each further ½	N	14.46	14.82	15.19
hour or part
Firefighter	1st hour	O	32.53	33.34	34.17
Each further ½	P	16.27	16.67	17.09
hour or part
CFR Firefighter	1st hour	Q	34.81	35.67	36.56
Each further ½	R	17.41	17.84	18.28
hour or part

…

QUESTION FOR DETERMINATION

[13] The Question for Determination as proposed by Mr Reardon is whether service with Fire and Rescue NSW as a Retained Firefighter should be taken into account to determine whether or not service requirements for the rank of Qualified Firefighter have been met under the Agreement. More precisely for the purposes of this decision, the question should be framed as follows:

Q: Is Mr Reardon’s service with Fire and Rescue NSW as a Retained Firefighter to be taken into account in determining whether or not service requirements for the rank of Qualified Firefighter have been met under the 2015 Agreement?

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[14] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 9 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.10

[15] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 11 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”12

[16] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 13 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.14 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.15 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.16 However, the relief sought may cast light on the true nature of the dispute in some cases.17

[17] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 18 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.19

[18] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 20 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

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

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

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

2. 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.

3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) 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;

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

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

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 21

[19] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 22

RELEVANT AGREEMENT PROVISIONS

[20] Four clauses in the 2015 Agreement have relevance to determination of this dispute:

•  the classification definitions in Clause 1.7 (Definitions);

•  the provisions of clause 4.1, dealing with Career Paths and Opportunities;

•  the provisions of clauses 8.1 and 8.2, setting out matters of Skills Development and Training; and

•  the provisions of Appendix A, which provides a “Training Matrix”.

[21] The terms of the relevant parts of Clauses 1.7, 4.1 and 8.1 and 8.2 are set out below, however Appendix A is not reproduced in this decision.

•  From Clause 1.7 (Definitions)

“Firefighter Level 1/ Watchroom Operator”, means an Employee engaged as to work in the Watchroom of a fire station as a paid Firefighter with the TSL Fire and Rescue Service employed at the bases and who has obtained the qualifications and modules for a Firefighter Level 1 set out in Appendix A -Training Matrix, a current Level 2 Senior First Aid Certificate or equivalent, and who may be undertaking training to obtain accreditation with the requisite Aviation Modules. This provision will cease to operate effective from the commencement of the new Victorian agreement. Existing Watchroom Operators at RAAF East Sale will maintain these provisions. All new Watchroom Operators shall be engaged as dedicated Watchroom Operators and will only be eligible to move into the Fire Fighter ranks upon attainment of the necessary units of competency and the existence of a vacancy.

The primary role of a Firefighter Level 1/ Watchroom Operator is to perform Watchroom duties.TSL will pay all costs incurred in training a Firefighter Level 1/ Watchroom Operator in obtaining accreditation with the requisite Aviation Modules.

Note: A Firefighter Level 1/Watchroom Operator at an Aviation Base should, within two (2) years, acquire the requisite aviation modules and be assessed as competent to respond to an aviation incident.

…

“Firefighter Level 1” means an Employee employed as a paid Firefighter with the TSL Fire and Rescue Service and who has obtained the Firefighter Level 1 qualifications and modules set out in Appendix A - Training Matrix and a current Level 2 Senior First Aid Certificate or equivalent

…

“Qualified Firefighter” means a TSL employee who has completed a minimum of 36 months service as a paid Firefighter within the fire and rescue industry and successfully

completed all Qualified Firefighter modules outlined in Appendix A – Training Matrix and assessment.”

•  From Clause 4

“4.1 CAREER PATHS & OPPORTUNITIES

(i) Employees shall be appointed to a classification in accordance with their qualifications as identified in Appendix A – Training Matrix. Note: appointment to the position of Leading Firefighter and above is subject to there being a vacancy.

(ii) In addition to (i) above employees will need to demonstrate the following experience as prescribed in the appropriate classification definitions in clause 1.7.and,

(iii) At the aviation Bases , all classifications above that of Firefighter Level 1/Watchroom Operator must have acquired accreditation with the requisite aviation modules.

4.1.1

(a) Employees engaged by TSL who have been employed as professional career Firefighters in another service, including Defence Forces, within the previous two years, will have the classification they held in another service recognised as meeting the requirements of subclause (a) above at the relevant classification, provided that this has been recognised by the Department of Defence. Such recognition of skills will be the subject of assessment, incorporating Recognition of Prior Learning (RPL) and Recognition of Current Competencies (RCC) principles, and will not be unreasonably withheld.

(b) Employees other than those covered by the agreement at the time of registration shall not be entitled to apply for an appointed position until they have completed two (2) years’ service with TSL.

(c) When addressing promotion and recruitment procedures TSL will in all circumstances, where practical, give priority to current employees within the service in NSW progressing through to employees within TSL generally.

4.1.2 Skills Enhancement Program

(i) The skills enhancement and skills maintenance program will reflect the various classification levels in this Agreement.

(ii) TSL will facilitate a training/skills audit through a recognised training provider and develop a training/maintenance plan for the Fire and Rescue operations.

(iii) Development of the plan will be consistent with the consultative process contained in this agreement.

(iv) An agreed recognised provider will deliver training in accordance with the plan.

4.1.3 Skills enhancement and skills maintenance program training shall be delivered by a Certificate 4 Workplace Trainer and Workplace Assessor.”

•  Clauses 8.1 and 8.2

“PART 8 TRAINING AND SKILLS DEVELOPMENT

8.1 SKILLS DEVELOPMENT AND TRAINING

The parties acknowledge that managing technological change is a significant operational challenge. New technology is a key to future safety and efficiency.

To achieve this end TSL will provide employees with appropriate training such that they are able to optimise their effectiveness in achieving the requirements of their position and the objectives of TSL.

Transfield agree to provide hot fire training in accordance with Defence requirements. Arrangements for the performance of hot fire training must be agreed through the consultation committee.

8.2 AUSTRALIAN FIRE COMPETENCY TRAINING

TSL will, upon translation to the PSTPC from the Australian Fire Competencies, provide TSL employees with consistent and relevant workplace training. This translation will take effect as required by legislation.

Employees will be required to carry out their duties in accordance with their skills, competencies and training. They will not be required to carry out duties for which a relevant competency or skill is required and which is not held by the employee.

Training will be delivered and/or accredited by:

•  A Registered Training Organisation

•  Approved Training Ground

•  Any other approved training locations”

[22] Although the 2018 Agreement retains the same essential classification structure, the overall agreement is structured differently, and most notably (for the purposes of this decision) in relation to the definition of “Qualified Firefighter”. The salient changes are as follows:

•  From Appendix A – Training Matrix/Employee Classification Levels

“Firefighter Classifications

Any person making application for classification as a Firefighter Level 2 or above, must produce satisfactory evidence confirming:

a) PSTPC Qualifications held, as relevant to the proposed Classification / Level; and

b) Time served in employment as a Professional Career Firefighter (as defined) within the five year period applying immediately prior to the date of application”

•  From Clause 7 – Definitions

CONSIDERATION

Jurisdiction

[23] My original concerns about jurisdiction were expressed as being that since the application referred to a dispute under the 2015 Agreement and the 2018 Agreement had since been approved there may not be jurisdiction for the Commission to proceed to determine the matter under the 2015 Agreement. Submissions were invited and received from the parties on the subject.

[24] The UFU, on behalf of Mr Reardon, argued that jurisdiction was available to the Commission. The UFU submitted that while Stephenson v Abetz 23 is often cited as authority for the proposition that the jurisdiction of the Commission is extinguished on replacement of the agreement under which an agreement is raised, a contrary consideration is available, demonstrated in the matter of Pulle,24 decided by Vice President Lawler.25 Shortly stated, Vice President Lawler questioned whether the decision in Stephenson v Abetz was correct, with it appearing to overlook important considerations:

“[40] The decision in Stephenson was based on the Full Bench’s conclusion as to the effect of s.170LX of the WR Act which provided that a certified agreement ceases to be in operation, and can never operate again in relation to an employee, if its nominal expiry date has passed and it is replaced by another certified agreement. The Full Bench held that s.170LX was “a constraint or limitation on the Commission’s jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing and settling disputes” and held that:

“[I]f a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s.170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.”

[41] The effect of the decision in Stephenson is that, in the absence of express words in the successor agreement preserving the operation of the predecessor agreement in relation to disputes where the dispute resolution process has started but not finished, jurisdiction in relation to such ‘part heard’ disputes is extinguished upon (what will usually be) the accident of the timing of the commencement of the successor agreement. An arbitral hearing in relation to a dispute over outstanding entitlements could be in final submissions but the tribunal would be obliged to cease hearing it. It stands to reason that it is unlikely that Parliament intended such an outcome. The correctness of Stephenson is open to doubt. The Full Bench in Stephenson, when determining the effect of s.170LX, failed to consider the fundamental principle of construction that a statute is presumed not to extinguish accrued rights in the absence of express words.  Under the common law it is trite that the termination of a contract prevents the creation of new rights and liabilities under the contract but does not prevent a party from utilising ‘procedural’ clauses under the contract, typically an arbitration clause, to vindicate rights that accrued under the contract before its termination. The principle of construction to which I have referred suggests that s.170LX and its equivalents in subsequent versions of the WR Act and the Fair Work Act 2009 (FW Act) should be construed as operating in the same way and that the ‘operation’ with which s.170LX and its equivalents are concerned is the operation in terms of the creation of new rights and liabilities and, in the absence of express words, does not prevent the pursuit of accrued rights under a dispute resolution procedure in an agreement that has ceased to ‘operate’ pursuant to s.170LX or one of its equivalents. Moreover, the Full Bench in Stephenson failed to consider whether s.51(xxxvi) of the Constitution would be offended by its construction (but not the narrower construction identified above) because agreement rights are a species of property and a provision that acquires or extinguishes those rights other than on just terms is unconstitutional and, if possible, should be read down to avoid that outcome.” 26 (citations omitted)

[25] Mr Reardon argues that the correct path in this matter is to follow the reasoning in Pulle, “meaning that his right to have his dispute decided by the Fair Work Commission was not extinguished by the introduction of the 2018 Agreement, and the Commission retains jurisdiction to decide his dispute” and that in the alternative, “the steps taken by Mr Reardon to satisfy the dispute procedure under the 2015 Agreement which the dispute was raised under, should be seen to satisfy the requirements under the 2018 Agreement that currently applies to his employment”. 27

[26] Broadspectrum’s submissions on jurisdiction do not engage with the analysis put forward on behalf of Mr Reardon, however, submits that the dispute is not capable of progressing for the following reasons:

“4. The previous Agreement no longer operates and does not apply to the Applicant or the Respondent.

5. Only 1 enterprise agreement can apply to an employee at a particular time as it relates to their particular employment.

6. Broadspectrum notes that if an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment, and another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation, then:

•  if the earlier agreement has not passed its nominal expiry date – the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date, or

•  if the earlier agreement has passed its nominal expiry date – the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and

•  once the agreement ceases to apply, it can never so apply again.

…

9. This Enterprise Agreement has commenced operation and applies to the applicant and their employment.

10. The previous Agreement does not include a provision either within the Dispute Resolution clause or elsewhere, that provides scope or capacity for a dispute to continue or remain enlivened over the course of one enterprise agreement to a new enterprise agreement.

11. If the dispute progresses in the Commission, in its current form, the Applicants claim must fail due to the new Enterprise Agreement excluding this type of service from being recognised.

12. There is also a view dispute is not able to be progressed in the Commission as it lacks the jurisdiction to hear a dispute under an expired enterprise agreement that no longer has application and has been replaced.

13. Certainly, in the absence of any clause from the previous agreement that expressly gives rise to the dispute carrying over or continuing under the new enterprise agreement.

14. This proposition again results in the failure or the cessation of the dispute.” 28

[27] The general rule is that only one enterprise agreement can apply to an employee at a particular time (s.58(1)) and that an enterprise agreement ceases to operate on the earlier of:

•  the day on which a termination of the agreement comes into operation under s 224 or s 227, or

•  the day on which s 58 (dealing with when an enterprise agreement ceases to apply to an employee) first has the effect that there is no employee to whom the agreement applies.

[28] Further, an enterprise agreement that has ceased to operate can never operate again (s.54(3)).

[29] Each of the enterprise agreements in question have dispute resolution procedures with an identical scope; namely, the clause encourages “effective means of consultation between the employer, its employee(s) and the Union on all matters pertaining to the employment relationship, all matters arising under this agreement or under the National Employment Standards” 29 Critically, each agreement permits the raising of disputes “pertaining to the employment relationship” and does not restrict disputes merely to matters arising under the particular agreement or the NES. The 2018 Agreement is binding on the parties stated in clause 3 and operates from seven days after its approval by the Commission (cl.4), with the parties then being committed to negotiating for a further agreement from a time at least 3 months prior to its nominal expiry date (cl.5). There is no term within the 2018 Agreement directly extinguishing rights accrued under the predecessor agreement, and there is no term limiting the raising of disputes only to matters arising after approval of the Agreement.

[30] Although s.54(3) of the Act operates to extinguish the 2015 Agreement, the 2018 Agreement does not restrict disputes only to matters arising under the Agreement or the NES, and in fact permits a wider class of disputes to be raised and progressed; namely, matters “pertaining to the employment relationship”. It has been held by the Full Court in relation to a not dissimilar provision in the CFA Operational Staff Agreement 2010 “[i]n order to determine whether a particular matter is covered by the dispute resolution procedure one has merely to ask whether the matter pertains to the employment relationship”. 30 Clause 15.1.2 of that agreement is in identical terms to the provisions in the agreements in dispute in this matter. That is, a dispute may be raised about “… all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement …”. The matter which is the subject of the Mr Reardon’s application is unquestionably a matter pertaining to the employment relationship.

[31] In these essential regards, the term of the 2018 Agreement is materially different to those agreements which have been held to block the continuation of an accrued right. 31

[32] As a result, the dispute originally arising under 2015 Agreement survives and is within the Commission’s jurisdiction and is able to be progressed under 2018 Agreement.

Merits

[33] The situation surrounding the dispute for the Commission involves the following matters:

1. The 2015 Agreement generally makes a Qualified Firefighter someone “who has completed a minimum of 36 months service as a paid Firefighter within the fire and rescue industry and successfully completed all Qualified Firefighter modules …”.

2. Mr Anderson contends that the intention of the 2015 Agreement was to establish the same progression requirements as in an enterprise agreement applying to Broadspectrum’s Victorian operations. The intention was that:

“Only experience as a full time paid firefighter within the industry was considered acceptable for progression.

I believe this was the generally accepted position by all the bargaining parties. The NSW delegates were very keen to have the terms of the Victorian agreement as their entitlements.

It was not the intent to include or recognise the Retained Firefighter service within the NSW EA.” 32

3. Mr Reardon has not indicated the level of payments he has received as a Retained Firefighter since he commenced that work in December 2012. While Mr Reardon has not indicated his overall qualifications in his witness statement Broadspectrum accept that he held the required qualifications for reclassification at 20 March 2018. 33

4. The NSW Retained Firefighting Award commenced operation on 16 February 2017. That Award replaced an earlier one made on 19 February 2016, 34 which in turn replaced earlier versions predating approval of the 2015 Agreement.35 The Award allows a construction that Retained Firefighters are employees36 and they are paid for their efforts.

[34] The critical question in this dispute is therefore whether the work performed by Mr Reardon as a Retained Firefighter is “service as a paid Firefighter within the fire and rescue industry”

[35] The matter of the Victorian Agreement is referred to within Mr Anderson’s statement. The Transfield Services Defence Base Services (Vic) and the United Firefighters' Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2015 37 has been the subject of arbitration over the eligibility of an employee to be classified as a Qualified Firefighter,38 however the circumstances of the individual in those proceedings are somewhat different.

[36] The key issue in the Victorian arbitration was whether the service that the applicant had with the Melbourne Metropolitan Fire and Emergency Services Board many years prior to his employment by Broadspectrum was service which was to be included in assessment of his claims for classification as a Qualified Firefighter. The relevant clause was defined in the same way as in the 2015 Agreement in this matter, with eligibility being contingent on service and competency. It was found that the applicant’s past service was to be taken into account. 39

[37] Mr Anderson’s contention that “[o]nly experience as a full time paid firefighter within the industry was considered acceptable for progression” 40 is not a statement of objective fact, but merely an opinion or aspiration on the part of someone involved in bargaining. I therefore place no reliance on what is said in that regard.

[38] Similarly the contention on the part of Broadspectrum that the 2018 Agreement “makes clear that service as a “Retained Firefighter” with the NSW Fire and Rescue Service is not included for the purposes of reclassification or recognition” 41 is also one that ultimately does not assist determination of this dispute. While it is the case that the 2018 Agreement redefines a Qualified Firefighter as someone with “at least 36 months operational experience as a Professional Career Firefighter”42 that, of itself does not assist in resolving Mr Reardon’s application in this dispute. It is noted that the term “Professional Career Firefighter” is defined in the 2018 Agreement as meaning “a Firefighter who has previously been engaged in full-time paid employment” with a number of organisations including Fire and Rescue NSW (cl.7).

[39] In short, Mr Anderson’s contentions about the formation of the 2015 Agreement are not evidence of objective fact, and Broadspectrum’s arguments about the changes to the 2018 Agreement do not evidence facts known to the parties during the formation of 2015 Agreement.

[40] Broadspectrum contends several matters about the term in the 2015 Agreement:

•  being paid a retainer for on-call service is not the same as being considered to be a paid Firefighter; 43 and

•  the term “Retained Firefighter” does not have a plain or ordinary meaning, whereas the term “paid Firefighter” does; and it is not to be assumed that the two terms would to have the same meaning. 44

[41] There is no particular ambiguity in the relevant clauses of the 2015 Agreement. The totality of the Agreement does not lead to the view that the words in contention are ambiguous or susceptible of more than one meaning. Instead the words within the term “service as a paid Firefighter within the fire and rescue industry” are to be given their ordinary and natural meaning.

[42] The plain or ordinary meaning of the term is evident within the words themselves.

[43] Within the context of the 2015 Agreement and the way in which agreements generally are negotiated, drafted and approved under the FW Act, “service” within the meaning of the 2015 Agreement is not to be seen as having a contrary intention to the general definition for that term within the Act. In that regard s.22 (1) of the FW Act provides that a period of service by an employee “is a period during which the employee is employed by the employer” with certain exclusions set out in s.22 (2), none of which have application to the circumstances in question in this matter. Acceptance of Broadspectrum’s arguments would require a conclusion that being paid a retainer for on-call work is not “service” as that term would usually be construed. There is nothing within the 2015 Agreement which would indicate that the use of the term “service” has a contrary meaning to the general meaning provided for within the FW Act. Thus, the meaning of the word within the 2015 Agreement is “a period during which the employee is employed by the employer”.

[44] Likewise, the phrase “paid Firefighter” is an unrestricted term, with the meaning of the word “paid” likely being consistent with and not contrary to the definition given within the FW Act for “paid work”. Section 12 defines “paid work” to mean “work for financial gain or reward (whether as an employee, a self-employed person or otherwise)”. Thus a “paid Firefighter” is one who has provided their services for financial gain or reward.

[45] The term “fire and rescue industry” as used in the 2015 Agreement is self-evident; being something directly connected with the provision of community safety services. Broadspectrum do not advance an argument that the work of Mr Reardon with Fire and Rescue NSW Services is not connected with the fire and rescue industry.

[46] Finally, the 2015 Agreement’s requirement that the requisite service be greater than 36 months plainly refers to a length of service of at least that time, which could be comprised of varying portions or elements or elements, potentially unique to each candidate. Broadspectrum submitted that in the event the Commission decides that the Applicant’s services as a Retained Firefighter does count for the purposes of reclassification that the Commission should then determine the question of how to accurately calculate the period of service as a Retained Firefighter for the purposes of the reclassification. 45 While the submission is noted it is not determined in this decision given the lack of submissions on the subject.

[47] In summary, I am satisfied that “service as a paid Firefighter within the fire and rescue industry” encompasses services as a Retained Firefighter with Fire and Rescue NSW. It is accepted that Mr Reardon has 36 months of such service and that he has completed the required competency modules. Accordingly, the Question for Determination posed in this matter is determined in the Applicant’s favour.

CONCLUSION

[48] On the basis of the foregoing, I find there is jurisdiction for the Commission to determine the dispute and that the Question for Determination should be answered as follows:

Q: Is Mr Reardon’s service with Fire and Rescue NSW as a Retained Firefighter to be taken into account in determining whether or not service requirements for the rank of Qualified Firefighter have been met under the 2015 Agreement?

A: Yes.

[49] The dispute is determined accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR713522>

 1   AE415823.

 2   AE501687.

 3   Witness Statement of Luke Reardon, 26 February 2019, [5] – [6].

 4 Ibid, [2] – [3].

 5 Ibid, [8] – [10].

 6   Witness Statement of Colin Anderson, 20 March 2019, p.1.

 7   Ibid.

 8 Clause 4, noting that "Department" “means Fire and Rescue NSW established by the Fire Brigades Act 1989 and as a Public Service Executive Agency under Schedule 1 of the Government Sector Employment Act 2013”.

 9   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

 10   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

 11   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 12   SDA v Big W Discount Department Stores PR924554 at [23].

 13   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

 14 Ibid [47].

 15   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 16   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

 17   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 18 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

 19   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 20   [2017] FWCFB 3005.

 21 Ibid [114].

 22   [2017] FWCFB 4537.

 23   Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), (2004), AIRC FB (unreported) Print PR952743.

 24   Pulle v Commonwealth of Australia acting through the Secretary of the Department of Parliamentary Services, [2011] FWA 7462.

 25   UFU Submissions on Jurisdiction, [7] – [12].

 26   Ibid.

 27   UFU Submissions on Jurisdiction, [14] – [15].

 28   Broadspectrum, Further Submissions, 20 August 2019.

 29   Transfield Services Defence Base Services (NSW) Fire and Rescue Enterprise Agreement 2015, cl.2.2; Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018, cl.12.1

 30   United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1, (2015) 247 IR 167, [246].

 31   See for example, Stephenson v Abetz PR952743, [49].

 32   Witness Statement of Colin Anderson, p.1.

 33   Broadspectrum Outline of Submissions (Merits), [8].

 34   Retained Firefighting Award (NSW), cl.35.1.

 35   See Industrial Relations Commission of NSW Industrial Gazette at accessed October 2019.

 36   Ibid, cl.4.

 37   AE417091.

 38   [2018] FWC 6230 (Wilson C., first instance); [2019] FWCFB 14 (Hatcher VP, Anderson and Saunders DPP, appeal).

[2019] FWC 2169 (Wilson C., remit).

 39   [2019] FWCFB 14, [8] – [10].

 40   Witness Statement of Colin Anderson, p.1.

 41   Broadspectrum Outline of Submissions (Merits), [3].

 42   2018 Agreement, Appendix A, Firefighter Classifications.

 43   Broadspectrum Outline of Submissions (Merits), [14].

 44 Ibid, [21] – [25].

 45   Ibid, [10].