Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia

[2013] FWC 4617

[2013] FWC 4617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Metropolitan Fire and Emergency Services Board
v
United Firefighters’ Union of Australia; Louis Mele; Andrew Zammit; John Rampling; Ross Trimboli; Phil Klein; Bruce Weaver
(C2013/4577)

DEPUTY PRESIDENT SMITH MELBOURNE, 12 JULY 2013

Alleged dispute concerning meetings.

Introduction

[1] This is an application by the Metropolitan Fire and Emergency Services Board (MFB) to deal with a dispute in accordance with a dispute settlement procedure contained in the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 ([2010] FWAA 7414 AG2010/14662) (the Agreement).

[2] The matter is notified to the Commission pursuant to section 739 of the Fair Work Act 2009 (the Act).

[3] The Agreement provides:

“19 Dispute Resolution

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

19.1.1 all matters which express provision is made in this agreement; and

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

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

And further:

“19.2.6 Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.”

[4] Two things need to be observed at this stage. Firstly, the dispute resolution procedure provides significant scope to settle disputes between the parties. The second observation is that the preamble to the dispute settlement procedure recognises the legislative scheme in the Act where the power conferred is to settle disputes about matters arising under an agreement 1. This can be contrasted with the earlier structure of the legislation which dealt with the proper application of an agreement.

The Issue in Dispute

[5] Put simply, the issue in dispute is the view of the United Firefighters’ Union of Australia (UFU) that negotiations for a new agreement should commence using the scope of the existing Agreement. The MFB seeks to alter the scope of the existing Agreement to remove a section of the workforce (Commanders) from that scope, so that they can be placed into another proposed agreement with Assistant Chief Fire Officers. MFB has initiated processes under the Act [s.173] to seek to bargain over two agreements: one covering operational staff and the other covering leadership personnel which would include Commanders.

[6] To support its contention, the UFU relies upon the terms of clause 5 of the Agreement which provides:

“5. Renegotiation

The parties to this agreement agree to commence negotiations on a new agreement six months prior to the expiry date of this agreement.”

[7] Again, without seeking to oversimplify the controversy, the UFU takes the view that the clause constitutes an agreement by MFB that it will at least commence negotiations on a new agreement with the existing scope. The MFB argues that clause 5 has, as its focus, the period in which negotiations should commence (which was not met); however argues that the clause does not commit it to commence renegotiating a proposed agreement with the same scope and it is entitled to utilise the provisions of the Act.

[8] MFB seeks the following determination:

“A determination that the terms of the Metropolitan Fire and Emergency Services Board and United Firefighters’ Union Operational Staff Agreement 2010 (2010 agreement);

(a) do not prevent MFB from seeking to replace[the] 2010 agreement with the new agreement covering operational staff up to the rank of Senior Station Officer and a new agreement covering Commanders and Assistant Chief Fire Officers; and

(b) do not require the MFB to negotiate a new agreement that has the same scope as the 2010 agreement.”

Approach to Construction of Agreements

[9] In considering how to resolve a dispute arising under this Agreement I need go no further than to refer to United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board 2. In particular:

The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.

A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184 3

[10] It is argued by the UFU that the Agreement did not constrain any particular outcome from bargaining. That is: whether or not the Commanders were covered in the operational agreement or otherwise. It was, however, of the view that the existing Agreement meant that bargaining should begin with a view of reaching an operational agreement with the existing scope. In support of its contention that the Agreement should be given this meaning the UFU relied upon the words that: the parties to this agreement agree to commence negotiations on a new agreement six months prior to the expiry date of this agreement. (The emphasis is mine)

[11] In addition, the UFU submitted that the Agreement of the parties must be seen in the context of the decision of the Full Bench in Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia and others  4 where the MFB were successful in a scope application which combined Commanders with Assistant Chief Fire Officers for the purpose of bargaining. Following the success of the MFB in that application, it subsequently reached agreement with the UFU for an operational staff agreement which included Commanders. The UFU submitted that this was a relevant consideration.

[12] The UFU submitted that when the text, context and purpose is considered, clause 5 should be interpreted as requiring the parties to commence negotiations on a new agreement of the same scope as that being superseded - namely for Recruit through to Commanders. 5

[13] The MFB argued that:

• Nothing in clause 5 imposes an obligation on the MFB to commence negotiations only against the background of the current scope



• The focus in clause 5 is the commencement of negotiations



• There is nothing in the non specific indefinite article in the clause (a) which would limit the operation of the clause to a singular interpretation. Indeed section 23 of the Acts Interpretation Act 1901 (Cth) provides that the singular shall include the plural.



• The Agreement cannot derogate the rights that the MFB has under Part 2-4 of the Act that governs bargaining.

[14] The MFB also submitted that its agreement to include Commanders in the Agreement cannot be regarded as a lasting settlement of the scope dispute between the parties.

The Evidence

[15] The MFB sought to call Mr Sean Hogan, Director - Employee Relations for the MFB to give evidence. The UFU objected to him giving evidence on the basis of relevance. A ruling was made to hear the evidence. Upon considering the evidence of Mr Hogan I have formed the view that it is of little assistance in determining either the terms of the Agreement or the mutual intention of the parties in reaching agreement.

[16] There was no evidence from either side on the negotiations which followed the Full Bench decision in the scope order matter and the subsequent agreement of the parties to include Commanders in the operational agreement.

Conclusion

[17] In this matter there are competing submissions in relation to the meaning of clause 5 of the Agreement. There was no evidence called but I am asked, by the UFU, to conclude from the context, setting and purpose that MFB committed itself to only negotiating an agreement of the same scope as the current Agreement. The most significant factor which points to this conclusion is the action of the MFB itself in, after having been successful in the scope application, subsequently abandoning the fruits of its success for the position being agitated by the UFU.

[18] I pause to note at this stage that I do not discount the possibility of parties settling controversies in one agreement which may impact upon a future agreement. It is not unusual for agreements to contain renegotiating clauses and such clauses could possibly contain provisions which provide a simple, flexible and fair framework that enables collective bargaining in good faith 6. Even in this case there is no dispute between the parties (although it was not honoured) that a clause about the commencement of negotiations was inserted to benefit the bargaining process and fair and effective agreement making. Indeed, settling controversies which may impact on the longer term may often reduce the need for scope or bargaining in good faith orders.

[19] However in this case, I cannot, with confidence, find that the MFB committed itself to a longer term settlement of the scope of any agreements. Indeed, on one view, it may now be simply revisiting the result of a merit arbitration in its favour which, for whatever reason, it abandoned at the time. In that way its actions cannot be seen as completely out of context with the history of the agreement making process.

[20] In those circumstances it is not inappropriate for me to rely upon the provisions of the Act. This enables the MFB to take certain action in the pursuit of bargaining with its employees. It has done so and I formally determine that the terms of the Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2010 (2010 agreement);

“(a) do not prevent MFB from seeking to replace[the] 2010 agreement with the new agreement covering operational staff up to the rank of Senior Station Officer and a new agreement covering Commanders and Assistant Chief Fire Officers; and

(b) do not require the MFB to negotiate a new agreement that has the same scope as the 2010 agreement.”

DEPUTY PRESIDENT

Appearances:

R. Dalton, of counsel, J. Tuck, solicitor, with S. Hogan for the Metropolitan Fire

and Emergency Services Board.

A. Forsyth, of counsel, with C. Lee on behalf of United Firefighters’ Union.

Hearing details:

2013.

Melbourne:

July 5.

 1   See ss.186 (6) (a)( i), 738(b) and 739(1).

 2 (2006) 152 FCR 18

 3 (2006) 152 FCR 18, [51] - [52].

 4   [2010] FWAFB 3009

 5   Written submissions paragraph 18

 6   See s.171

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