Rainer Kiessling v Fire Rescue Victoria

[2024] FWC 2635

[2024] FWC 2635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Rainer Kiessling
v

Fire Rescue Victoria

(C2024/2106)

DEPUTY PRESIDENT COLMAN MELBOURNE, 25 SEPTEMBER 2024

Dispute arising under enterprise agreement – dispute determined

1. Rainer Kiessling has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 26 of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Agreement) by which he asks the Commission to determine his dispute with Fire Rescue Victoria (FRV). Mr Kiessling contends that FRV has acted unfairly and unlawfully by restricting his ability to apply for higher duties positions on the basis that he is a lateral recruit from the South Australian fire service who is ‘tenured’ to a position in Hamilton for three years. Mr Kiessling asks the Commission to make determinations that would require FRV to consider his higher duties applications without treating him differently because of his tenured status. He also asks the Commission to require FRV to develop policies governing the manner in which higher duties applications are determined.

1. Briefly stated, the background is as follows. Clause 48.6 of the Agreement allows FRV to recruit lateral entry firefighters from outside Victoria. FRV utilises lateral entries for vacancies in remote locations that have proved difficult to fill. It requires lateral entries to remain in the relevant position for an initial ‘tenured’ period. On 14 April 2022, Mr Kiessling accepted an offer of employment from FRV for a commander position in Hamilton, on secondment to the Country Fire Authority (CFA). The letter of employment signed by Mr Kiessling stated that he agreed to ‘remain in the nominated position for an initial period of 3 years’ concluding on 25 April 2025 (‘the 3-year tenure requirement’), and that after that time he would be able to ‘transfer to other positions’. The letter did not state that there were any restrictions on Mr Kiessling applying for higher duties positions.

1. Soon after arriving in Hamilton, Mr Kiessling began to apply for higher duties roles in other locations, but without success. Mr Kiessling considered that higher duties positions, which are temporary appointments, were not ‘transfers’ to other positions. FRV did not dispute this. However, in October 2022, FRV told Mr Kiessling that it was not contemplated that lateral entries would seek higher duties roles away from their tenured locations, and that they would be confined to applying for any higher duties roles in their ‘home’ district, meaning the district in which their tenured position was located (‘the higher duties limitation’). For Mr Kiessling, this was district 5 in southwestern Victoria. This limitation would apply until the end of the tenure period. Mr Kiessling believed that there was nothing that legally prevented him from applying for any higher duties positions in FRV. In June 2023, he lodged a dispute in the Commission under clause 26 of the Agreement. He asked the Commission to determine numerous grievances, one of which was whether the Agreement or his letter of offer prohibited him from applying for higher duties roles anywhere in Victoria. In a decision dated 13 October 2023, Commissioner Bissett concluded that the answer to that question was ‘no’ ([2023] FWC 2557 at [75]). Following the Commissioner’s decision, Mr Kiessling was offered some higher duties opportunities in district 5. He also applied for a number of higher duties positions outside of district 5 but was unsuccessful.

1. Mr Kiessling contends that FRV should consider all applications he makes for higher duties positions anywhere in Victoria, and that he should not have to wait for the expiry of his 3-year tenure period before applying for higher duties roles outside of district 5. He submits that FRV should consider his higher duties applications based on merit and in the same manner as it considers applications made by any other firefighter. He contends that the 3-year tenure requirement and the higher duties limitation are unfair and unlawful, and that the Commission should make determinations to this effect.

1. FRV denies that the 3-year tenure requirement or the higher duties limitation are unfair or unlawful or that it has acted unreasonably or unlawfully in connection with Mr Kiessling’s applications for higher duties positions or otherwise. It submits that the 3-year tenure requirement and the higher duties limitation are consistent with the Agreement and the Act and are both fair and lawful. The United Firefighters Union (UFU) supports the position of FRV.

1. For the reasons that follow, I consider that the 3-year tenure requirement and the higher duties limitation are neither unfair nor unlawful, and that there is no basis for the Commission to make any of the determinations sought by Mr Kiessling.

The 3-year tenure requirement and the higher duties limitation are not unfair

1. FRV has a responsibility to provide fire cover for the state of Victoria. If positions in remote locations cannot be filled with internal candidates, it stands to reason that FRV would seek lateral recruits for those vacancies, and that it might require those recruits to commit to serving in those roles for a period of time. The 3-year tenure requirement is a reasonable and legitimate response to an operational problem. There is nothing unfair about this requirement, or the manner in which it has been implemented in this case. Mr Kiessling understood the terms on which he was being offered employment with FRV. He freely accepted them. He knew, because the letter of employment plainly stated, that he was to ‘remain in the nominated position for an initial period of 3 years’. Mr Kiessling said it was unfair that Victorian firefighters who agree to fill ‘long term’ vacancies are required to commit to those roles for only 2-years. But this is a different circumstance. And in any event there is nothing inherently unfair about hiring new employees on different conditions from those of existing employees.

1. The higher duties limitation prevents Mr Kiessling, as a tenured lateral recruit, from applying for higher duties roles outside his district during the tenure period. I find nothing unfair about this. A person who has agreed to perform a hard-to-fill job in a remote location for a fixed period should honour that commitment. Neither the Agreement nor the letter of employment prevent Mr Kiessling from applying for higher duties roles. But there was no reasonable basis for Mr Kiessling to expect that such applications would be successful. He had agreed to remain in the nominated position for an initial period of 3 years. Mr Kiessling’s argument that performing a higher duties role elsewhere would allow him to retain his nominated position in Hamilton is a technical one which has little to do with fairness. To my mind, it is logical and reasonable, and also obvious, that if a tenured recruit applies for a higher duties position in another location during the tenure period, the 3-year tenure requirement may be a significant consideration weighing against the application being granted.

1. In exceptional cases, FRV’s need to fill a vacant higher duties role elsewhere might be more pressing than the need to have the tenured lateral recruit work in the nominated position. In such cases, FRV might grant an application from a tenured lateral recruit to perform that role. And indeed, FRV has granted several higher duties applications made by Mr Kiessling, within district 5. But in my view, while there is nothing to prevent such employees from applying for higher duties roles, they should generally not have an expectation of success.

1. Mr Kiessling said that fairness would require his higher duties applications to be dealt with in the same way as those of any other Victorian firefighter. I disagree. Mr Kiessling’s circumstances are not the same as any other Victorian firefighter. He is a firefighter who only became a Victorian firefighter because he agreed to perform a hard-to-fill position in Hamilton for the first 3-years of his employment. Mr Kiessling said that the limitation was unreasonable, because it allowed him to apply for higher duties in Mildura, which is within region 5, but not Ararat, which is outside the region but closer to Hamilton. But regions can reasonably be presumed to have various organisational and resourcing interconnectivities. Even if that is not the case, that does not mean that the limitation is unfair. What is fair is that Mr Kiessling do the tenured job that he agreed to do and that any deviation from this work be at FRV’s discretion. Mr Kiessling submitted that any higher duties limitation must be codified in a published policy. I disagree. Subject to any statutory, regulatory or instrumental requirement, an employer does not have to create a formal policy in respect of all aspects of its workplace decision-making, even if in some cases there may be good reasons to do so.

1. Mr Kiessling said that FRV had declined his applications for higher duties roles in other locations even though his immediate supervisor had supported these applications, and that this suggested that there was no particular need for him to remain in Hamilton. But Mr Kiessling’s immediate superior is not the person charged with assessing higher duties applications and cannot be expected to have had an overview of all of the relevant resourcing and other considerations that might bear on these decisions.

1. Mr Kiessling said that the expression ‘operational requirements’ seemed to be the overarching principle by which FRV determined who would be selected for higher duties roles, which meant that they could choose whomever they wished. But it is perfectly normal that an employer will make its own assessment of what best serves its operational requirements. This does not mean that the determination of higher duties applications is not merit-based. Further, in the context of lateral recruits on tenured arrangements, the ‘merit’ of an application that is made for a higher duties position during the tenure period would logically and fairly include the consideration that the person has specifically agreed to perform a hard-to-fill position in a remote location for a minimum period of time.

The 3-year tenure requirement and the higher duties limitation are not unlawful

1. Mr Kiessling advanced a number of arguments as to why in his opinion the 3-year tenure requirement and the higher duties limitation were unlawful. These arguments were based variously on the terms of the Agreement, the Act, state legislation, his contract of employment, and representations allegedly made to him during the interview process.

1. First, Mr Kiessling said that the tenure requirement and the higher duties limitation contravened clause 65.1 of the Agreement, which states that FRV must ensure that employment practices are non-discriminatory, and that all workers have ‘equal access to … career path opportunities and all terms and conditions of employment’. I reject this contention. First, the 3-year tenure requirement and the higher duties limitation are not discriminatory. They do not operate by reference to any protected attribute. They simply provide for different conditions of employment for certain employees in special circumstances. Moreover, Mr Kiessling has not received less favourable treatment than other employees in comparable circumstances. Unlike non-lateral recruits, he applied for and promised to perform a difficult-to-fill position in a remote area and to serve a 3-year tenure in that position. Secondly, these arrangements do not deprive Mr Kiessling of a career path. For lateral recruits, the career path is different, insofar as they are tied to their substantive position for 3 years and have fewer higher duties opportunities. But clause 65.1 does not say that all employees must have equal access to the same career path opportunity. That would be absurd. It would require persons not qualified for certain roles to have access to the career paths associated with those roles.

1. Secondly, Mr Kiessling contended that the 3-year tenure requirement and the higher duties limitation are contrary to schedule 26 of the Agreement, which provides that FRV ‘shall not disadvantage any employee who is seconded to the CFA in their terms and conditions of employment by reason of the secondment to the CFA.’ But Mr Kiessling has not been disadvantaged because of his secondment to the CFA. In my view, he has not been disadvantaged at all. But if he has been, it is a disadvantage connected to his decision to accept employment as a lateral recruit on a tenured basis.

1. Thirdly, Mr Kiessling said that the tenure requirement and the higher duties limitation were invalid because they are not permitted by the Agreement. He submitted that the only restrictions in the Agreement associated with lateral entries are those found in clause 48, and that there is no mention of a tenure requirement or a limitation on higher duties during this period. This contention is misconceived. The Agreement is not an exhaustive statement of all terms and conditions of employment that are applicable to employees covered by it. The Agreement operates alongside the contract of employment, FRV policy, and the residual discretion of FRV to manage the workforce in the best interests of the organisation and the people of Victoria, in accordance with its statutory obligations. The Agreement prevails over contract and policy in cases of inconsistency. But there is no inconsistency in this case.

1. Fourthly, Mr Kiessling submitted that, by applying the tenure requirement and the higher duties limitation, FRV had taken adverse action against him for unlawful reasons contrary to s 340 of the Act. I reject this argument. I do not consider that there has been any adverse action here. But even if there had been, that action was not taken because Mr Kiessling had a workplace right or for any other prohibited reason. The facts of this case do not disclose any contravention of Part 3-1 of the Act.

1. Fifthly, Mr Kiessling contended that the tenure condition and higher duties limitation were contrary to s 25C of the Fire Rescue Victoria Act 1958, which states that the Chief Officer of the CFA may agree to the secondment to the CFA of an employee of FRV if the Fire Rescue Commissioner has conducted an ‘equitable, fair and transparent selection process’. This argument does not make sense. It implies that Mr Kiessling should not have been seconded to the CFA because he was not fairly selected for the position. If the argument is that s 25C requires that FRV consider his higher duties applications in a manner that is equitable, fair and transparent, I reject it. This is not what the provision says. In any event, I consider that FRV has acted in such a manner. Mr Kiessling thinks that FRV has not been transparent because it does not have a published policy about how it selects applicants for higher duties positions. I disagree. It has been clear about its attitude to such applications from tenured lateral recruits, which was first to rule them out, and then from late 2022 to apply the higher duties limitation. Mr Kiessling also submitted that FRV had acted contrary to the Victorian Public Sector Employment Principles and Standards. I do not propose to recite the principles and standards. There is simply no substance to this contention, and I reject it.

1. Sixthly, Mr Kiessling sought to argue that the higher duties limitation was unlawful because it was not provided for in his contract. This is wrong. The contract is simply silent on higher duties opportunities. That fact does not fetter the ability of FRV to exercise its management prerogative to make policies about higher duties for lateral recruits. It did so, with the imprimatur of the consultative committee and the UFU in accordance with the Agreement. Mr Kiessling sought to develop various other contentions to the general effect that the higher duties limitation is contrary to the law of contract. These are misconceived.

1. Mr Kiessling contended that when he interviewed for the Hamilton position, he was told by ‘FRV representatives’ that there would be no limitation on his ability to perform higher duties or to pursue promotional opportunities during the initial 3-year period. He claimed that he was misled. He referred generally to evidence that was said to have been adduced in the proceedings before Commissioner Bisset. But no relevant evidence was led in the present proceedings about this matter. Moreover, what was said by the parties in pre-contractual discussions would not be admissible as evidence of a term of the contract of employment because it is excluded by the parole evidence rule. In short, whatever the parties may have said to one another about what the terms of the contract were going to be, their actual agreement is the one that they reduced to writing. If Mr Kiessling wanted his contract to provide for an unrestricted right to access higher duties during his tenure period, he should have raised this with FRV and sought to negotiate its inclusion in the letter of offer.

Other contentions and issues

1. Mr Kiessling said that FRV must develop a policy, by which he means a written and published policy, that sets out selection criteria for higher duties across the commander rank. He said that the policy must treat lateral recruits in exactly the same way as other employees. I reject this. FRV does not need to have a policy of this kind or any other kind. In practice, it has a policy, namely the one described by Mr Proebstl in his witness statement. The policy includes the higher duties limitation. There is no reason why FRV should treat tenured lateral recruits in the same manner as any other employee, for the simple reason that they are not like every other employee. They have promised to remain in the nominated position for three years.

1. Mr Kiessling further contended that firefighters should be able to move between Division A of the Agreement, which covers the old MFB, and Division B, which covers the CFA, but that the effect of clause 12 of the Agreement is that Division B employees are not eligible for Division A roles if there is an applicant for that role from Division A. I note that this contention has nothing to do with the tenure requirement or the higher duties limitation. The submission is instead a broader foray by Mr Kiessling into the overall structure and management of the Victorian fire service. Mr Kiessling objects to the interdivisional limitations because they are another constraint on his efforts to work in roles other than the one he agreed to undertake in Hamilton. He said that the limitation was discriminatory and had precluded him from access to higher duties roles in Division A. He also contended that FRV had failed to comply with clause 12A of the Agreement, which requires that the parties to the Agreement meet within 3 months of the approval of the Agreement to confer about the alignment of rank structures, but that this did not occur.

1. The structure of the Agreement is not discriminatory. Rather, it distinguishes between the two divisions and their employees. Whether this is desirable is not a question for the Commission to determine. As to clause 12A, it appears that the relevant meeting did not occur. I consider that the parties should have this meeting at their earliest opportunity. I decline to set a timeframe because there is insufficient information before the Commission about the factors that may be entailed in preparing for such a meeting.

1. Mr Kiessling posed a multitude of questions that he asked the Commission to determine. Many of these were inappropriately formulated because they contained assumptions or implied aspersions or were otherwise self-serving or platitudinous. The ultimate answer to all of these questions is that FRV has not acted unfairly or unlawfully in its treatment of Mr Kiessling in relation to the matters raised in his submissions. Accordingly, there is no basis for the Commission to require FRV to revisit any of Mr Kiessling’s past applications for higher duties; to alter the manner in which it considers applications for higher duties positions from tenured lateral recruits like Mr Kiessling; to lift or alter the 3-year tenure requirement for such recruits; or to create or publish any policies in relation to these matters. The dispute that has been referred to the Commission is determined accordingly.

1. FRV has a legitimate interest in ensuring that positions in remote locations are filled, and that they stay filled. It seeks to further this interest through a combination of contractual commitments from lateral recruits to a 3-year tenure period, together with the incentive of ‘regularisation’ thereafter, and higher duties roles within the relevant district during the tenure period. Reasonable minds may differ about what is the most effective way to achieve the desired goal, and whether more or less flexibility is required. But this is a question for FRV to consider in consultation with the CFA and the UFU.

DEPUTY PRESIDENT

Appearances:

R. Kiessling for himself
K. Minogue for FRV
E. White of counsel for the UFU

Hearing details:

2024
Melbourne
16 August

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