United Firefighters' Union of Australia v ACT Fire & Rescue
[2023] FWC 1649
•7 JULY 2023
| [2023] FWC 1649 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Firefighters’ Union of Australia
v
ACT Fire & Rescue
(C2023/892)
| DEPUTY PRESIDENT DEAN | CANBERRA, 7 JULY 2023 |
Application to deal with a dispute – preliminary issue – status quo – date dispute arose.
The United Firefighters Union of Australia (Union) has made an application to deal with a dispute affecting five of its members (the relevant employees) employed by ACT Fire & Rescue (Respondent) about the taking of leave at half pay as a part of a request for flexible working arrangements and their transition to retirement.
This decision determines a preliminary matter, that being what are the relevant ‘pre-dispute work arrangements and patterns’ in accordance with clause P3.16 of the ACT Fire & Rescue Enterprise Agreement 2020-2024 (Agreement), otherwise referred to as the ‘status quo’.
At the hearing, Ms S Bingham of Counsel appeared for the Union and Mr M Chilcott of ACT Government Solicitor appeared for the Respondent.
The parties agreed that to determine what the pre-dispute work arrangements and patterns are, it is necessary for the Commission to determine the date the dispute arose (the dispute date).
Put simply, the Union contended that the dispute date was 30 January 2023 and the Respondent contended that the dispute date was 16 December 2022. If the dispute date is 16 December, then except for Mr Weston who was already on leave at half pay, the relevant employees are not entitled to take leave at half pay by virtue of the operation of the status quo provision. If the dispute date is 30 January 2023, then leave at half pay is the status quo.
The relevant subclauses of Clause P3 – Dispute Avoidance/Settlement Procedures are as follows:
P3.1 The objective of these procedures is the prevention and resolution of disputes about
P3.1.1 matters arising between:
P3.1.1 (a) employees and the employer; and
P3.1.1 (b) the union and the employer;
including disputes about the interpretation or implementation of this Agreement; and
P3.1.2 the application of the National Employment Standards.
P3.2 For the purposes of this clause, except where the contrary intention appears, the term parties refers to ‘parties to the dispute’.
P3.3 All persons covered by this Agreement agree to take reasonable internal steps to prevent, and explore all avenues to seek resolution of, disputes.
P3.4 An employee who is a party to the dispute may appoint a representative, which may be a relevant union, for the purposes of the procedures of this clause.
P3.5 In the event there is a dispute the following processes will apply:
P3.5.1 Where appropriate, the relevant Employee or the employee’s representative will discuss the matter with the Employee’s supervisor.
P3.5.2 With respect to matters arising between Employees and the Employer, where the Union is the nominated representative and matters arising between the Union and the Employer P3.5.1 will not apply where the Chief Officer has been notified of the dispute by the Union. In these circumstances a discussion will take place with the Chief Officer.
P3.6 In instances where a dispute remains unresolved:
P3.6.1 the Chief Officer;
P3.6.2 if the discussion referred to in P3.5.1 or P3.5.2 has not taken place with the Chief Officer, the next appropriate level of management,
P3.6.3 the Employee,
P3.6.4 the Union or other employee representative
will discuss a course of action for resolution of the dispute. Where a course of action cannot be agreed or the discussion does not take place within seven days of the notification of the dispute or the last discussion (whichever is the latter) the dispute will be deemed to be unresolved unless the parties agree in writing to extend the time in which the discussion in subclause P3.6 is to take place.
P3.7 If the dispute remains unresolved after the steps set out above, a party to the dispute may refer the matter to the FWC.
…
P3.16Pre-dispute work arrangements and patterns will apply during the dispute resolution process unless there is reasonable concern by the employee about an imminent risk to his or her health or safety. In these circumstances, employees will not work in an unsafe environment but, where appropriate, may accept reassignment to alternative suitable work consistent with their classification levels in the meantime.
There were several pieces of correspondence between the parties from 16 December 2022 to 30 January 2023. On 16 December 2022 the Union wrote to the Respondent in the following terms (the 16 December correspondence):
“Dear Mr Mavity,
Re: Discriminatory treatment of leave requests made by employees approaching retirement
We write to you in relation to reports from a number of our members that ACT Fire & Rescue (ACTF&R) have not been abiding by the terms of the ACT Public Sector Fire & Rescue Enterprise Agreement 2020-2024 (Agreement) in relation to applications for flexible working arrangements.
Discrimination in refusing applications for leave.
Specifically, the following members have recently had applications for annual leave on half pay refused:
a.Michael Cochrane;
b.Brian Turton;
c.Morris Brighty; and
d.Greg Harmey,
(Discriminated Members).
Annual Leave at half pay is an entitlement that employees are able to access, with approval of the head of service, under cl J4.6 of the Agreement.
In each instance:a.the applicant was over 55 and the application was a request for flexible working arrangements within the meaning of cl H2 of the Agreement; and
b.the refusal was not accompanied by reasons or, alternatively, the reasons that were provided did not include reasonable business grounds for the refusal.
The Union is concerned that the Discriminated Members form a class of employees that have been discriminated against in relation to, either:
a.a characteristic that appertains generally to persons of the age of the Discriminated Members;
b.a practice adopted by ACTF&R of denying applications for leave without pay or applications for leave on half pay made by employees approaching retirement; or
c.a condition or requirement for approving applications for leave without pay or leave on half pay that has the effect of disadvantaging employees approaching retirement,
(Discriminatory Conditions).
The Union is aware that leave on half pay or leave without pay has been approved by ACTF&R where applications were made by persons who were outside the class of employees referred to above, namely those not the subject of the Discriminatory Conditions.
No reasonable business grounds-No proper basis for refusal
In each instance our Discriminated Members were entitled under the Agreement to make an application for annual leave or long service leave on half pay and such an application could only be refused with ‘reasonable business grounds’:
a. clause H2.1 provides that an employee may apply to the head of service for flexible working arrangements to support their work and life balance;
b. clause H2.3.4 provides that an employee may make such an application in the circumstance that they are over the age of 55;
c. clause H2.4 provides a non-exhaustive list of flexible working and leave arrangements that specifically identifies annual leave, annual leave at half pay4 and long service leave; and
d.clause H2.8 provides that the head of service ‘may only deny an employee’s request for flexible working arrangements ... where there are reasonable business grounds for doing so’.
It appears obvious to the Union that where an employee has indicated an intention to take leave and then retire, without returning to work in the interim, there can be no reasonable business ground for refusing an application for leave on half pay.
This is because, once an employee has indicated an intention to retire, there can be no operational difference to staffing levels caused by the rate at which their leave entitlements are paid.
The only additional burden such a request would have upon ACTF&R would be a trivial administrative task, which we say does not fall within the meaning of reasonable business grounds as defined by cl H2.9.
In addition to the aforementioned Discriminatory Conditions which were indicated in the reasons provided with the email of 24 November 2022, that same email also included the following sentence:
‘The intention is to pay out the rest of your entitlements when your current leave runs out. Please let me know how to proceed.’
Under the Agreement, cashing-out is only possible in the case of:
a.leave balances above 384 hours; and
b.upon the employee providing the head of service with a written election to do so.
Under those conditions it was never possible for the employer to pay out the balance of Mr Harmey’s entitlements, save in the event of termination of employment.
To the extent there was any ambiguity in the meaning of the email of 24 November, the intent of ACTF&R was put beyond doubt by a further email to Mr Harmey received yesterday, the body of which we reproduce below in full:
‘I hope you are enjoying retirement.
You are currently on annual leave until 27/12/22. CO Mavity has requested I contact you and let you know that at the end of your current authorised leave period he will not be granting any further leave and your entitlements will be paid out.
This is due to organisational pressures in ACTF&R.
I have requested a payment figure from shared services and will forward to you as soon as I receive it.
This means your retirement date will be 28/12/2022. Please let me know if I can be of any further assistance.’
We wrote to you by email yesterday seeking to know the basis, by 11:00 am today, upon which you assert that Mr Harmey’s employment would come to an end on 28 December 2022 and ACTF&R’s ability to payout a serving member’s annual leave together with the provision of the Enterprise Agreement upon which ACTF&R relies.
At 11:05 am today, Commander Perks wrote to Mr Harmey, copied to us, effectively directing Mr Harmey to return to work, offering him the hobson’s choice expressed as “you can return to duty or you will be on an unapproved absence.”
Commander Perks’ 11:05 am email did not provide the basis upon which ACTF&R could payout a serving member’s annual leave in Mr Harmey’s circumstances.
It is clear that ACTF&R intended to dismiss Mr Harmey from his employment on
28 December 2022, a position from which it now apparently resiles. Such a dismissal would have been entirely lacking in valid reason, in fact the reason given appears at one and the same time ‘capricious, fanciful, spiteful’ and ‘prejudiced’. It would have been in contravention of multiple provisions of Part 3-1 of the FW Act (including retaliation for exercising a workplace right10 and discrimination11) and moreover, in contravention of s 18(2)(c) of the Age Discrimination Act 2004 (Cth).
The hobson’s choice offer by ACTF&R under cover of Commander Perks email of 16 December 2022 is coercing Mr Harmey to tender a resignation in contravention of s 343 of the FW Act, offering him the choice of return to active duty in 12 days or abandonment of employment.
We consider the suggestion that Mr Harmey return to active employment is entirely disingenuous. As you are well aware Mr Harmey ceased active duty in 2019 with a leave balance in excess of 4 years (including long-service leave, annual leave and recreational leave). At that time, such a leave balance would take him well into retirement age. Mr Harmey has not been in service for a period of approximately three and a half years.
We draw your attention to cl S12 of the Agreement ‘Mandatory qualifications and training’ which requires all firefighters maintain competency in the following 15 subject areas ‘to meet the head of service’s minimum Workplace Health and Safety requirements’:
a. provision of advanced first aid;
b. wearing of breathing apparatus;
c. driving and operating ESA/ACTF&R appliances and vehicles;
d. chainsaw operations;
e. confined space rescue;
f. HazMat/Dangerous Substances;
g. Pumping;
h. Stage 2 Rescue;
i. Stage 3 Rescue;
j. structural firefighting;
k. swiftwater awareness;
l. Trench Rescue 1;
m. USAR category 1;
n. Vertical Rescue 1; and
o. Wildfire,
(Skills Maintenance Courses).
We also draw your attention to the Agreed Uniform and Protective Clothing List incorporated into the Agreement pursuant to cl S8.1.
It does not appear from Commander Perks’ email that ACTF&R have given due regard to the Skills Maintenance Courses, uniform, protective clothing and other items that need to be provided to Mr Harmey in order for him to return to work on 28 December 2022.
Please confirm how, when and where those skills Skills Maintenance Courses will be provided to Mr Harmey in the event ACTF&R is now directing him to return to work. Until Mr Harmey has the appropriate skill maintenance training he will pose a health and safety risk to himself and others. Please also advise where and when Mr Harmey will be able to be provided with his uniform and protective clothing.
ACTF&R to immediately cease discriminating against older workers
We demand that the head of service immediately cease the discriminatory practice that appears to have been adopted with respect to older firefighters and cease applying cl H2 in a discriminatory manner.
Consistent with the above, we consider it appropriate that, in the case of each of the recent flexible working arrangement applications made by each of the Discriminated Members identified above, the head of service:
a.rescind the refusal decision;
b.grant the application for flexible working arrangements; and
c.write to each of the Discriminated Members informing them that their application has been granted.
Having regard to the fact that many of the Discriminated Members are already on leave on full pay or will soon be transitioning to leave on full pay we consider that the above steps be taken without undue delay and in any event no later than Thursday 22 December 2022.
Where you refuse to rescind the refusal decision and grant the relevant applications for each Discriminated Member for reason that you dispute the matters alleged in this letter, we say that you need to, at the very least, grant Mr Harmey an interim grant of leave on half pay until 31 January 2023 to allow time for a resolution to be reached regarding the return-to work issues.
If you are unwilling or unable to take the steps we have outlined above, we intend to make an application to the Federal Court seeking a mandatory injunction compelling ACTF&R to comply with the provisions of the Agreement.
Please indicate your response to the above, in writing, by no later than noon, Monday 19 December 2022.
Sincerely
Greg Mcconville
National and ACT Branch Secretary United Firefighters Union of Australia” (citations/references omitted)
The Union wrote to the Respondent on 30 January 2023 in the following terms (the 30 January correspondence):
“Dear Chief Officer
Re: Notice of Dispute pursuant to Clause P3 of ACT Public Sector ACT Fire and Rescue Enterprise Agreement 2020 - 2024 (‘The Agreement’)
I refer to our correspondence of 16 December 2022 and 19 January 2023 and your reply of today.
Please treat this correspondence as notification of a dispute over the application of the enterprise agreement, pertaining to requests made by members for leave approaching retirement.
The clauses of the agreement to which the dispute relates are as follows:· Clause Hl -Work Life Balance
· Clause H2 - Flexible Working Arrangements
· Clause H3 - Management of Excessive Hours
· Clause J4 - Annual Leave
· Clause J4.6 - Annual Leave at half pay
· Clause P10 - Diversity in the Workplace
· Clause S4 ACTF&R Establishment
· Schedule 1- ACTF&R Minimum Crewing and Establishment
The disputes procedure requires us to discuss the matter within 7 days. For this purpose, I am available:
· Tuesday 31 January, 11.00 am.
· Wednesday 1 February, between 9.30 am and midday;
· Thursday 2 February, between 10 am and 3.30 pm
Clause P3.16 provides that pre-dispute work arrangements and patters will apply during the dispute resolution process. Please confirm that consistent with this clause, leave will continue at half pay during the dispute resolution process for the following employees:
· Greg Harmey;
· Ron Weston;
· Michael Cochrane;
· Morris Brighty;
· Brian Turton
I look forward to your reply.”
As indicated earlier, further correspondence was exchanged by the parties between the 16 December and 30 January correspondence. It is not set out in full here because of the length of such correspondence, but relevant extracts are referenced later in this decision.
The case for the Union
Union contends that the pre-dispute work arrangements or patterns that should apply is that each relevant member remain on leave at half pay post 31 January 2023 until the dispute resolution process is exhausted.
Its submissions included the following chronology of events which it contended lead to the notification of the dispute:
“8.On 5 June and 21 June 2022 the Union received emails from Station Officer (SO) Morris Brighty regarding a refusal by ACTF&R to approve a flexible working arrangement whereby he took leave at half pay as a transition to retirement.
9.In September 2022 SO Brian Turton informed the Union that ACTF&R refused to approve a flexible working arrangement whereby he took leave at half pay as a transition to retirement.’
10.On 12 December 2022 the Union received an email from Commander Michael Cochrane regarding a refusal by ACTF&R to approve a flexible working arrangement whereby he took leave at half pay as a transition to retirement.
11.On 24 November 2022 Commander (Cmdr) Greg Harmey:
(a) was on approved annual leave at full pay such leave to expire on 28 December 2022. Upon the expiration of this period annual leave Cmdr Harmey had an entitlement to accrued but untaken leave. Cmdr Harmey applied to take further leave on the expiration of his current leave at half pay.
(b) received an email from ACTF&R that stated, among other things:
‘The intention is to pay out the rest of your entitlements when your current leave runs out. Please let me know how to proceed.’
(c) provided a copy of that email to Mr McConville, Branch Secretary of the Union
12.On Thursday 15 December 2022:
(a) Cmdr Harmey received an email from ACTF&R in the following form:
‘CO Mavity has requested I contact you and let you know that the end of your current authorised leave period he will not be granting any further leave and your entitlements will be paid out. ... This means your retirement date will be 28/12/2022’
Upon receipt of the email Cmdr Harmey forwarded a copy of this email to the Union
(b) The union wrote to the Chief Officer on 15 December 2022 demanding to know the legal basis upon which the Chief Officer intended to terminate the employment of Cmdr Harmey.
13.On 16 December 2022:
(a) the union received a response to its correspondence of 15 December 2022 which stated that Cmdr Harmey could return to duty or be on an unapproved absence.
(b) at 1:20pm Mr Mcconville, discussed the issues associated with the failure to approve flexible working arrangements for Cmdr’s Harmey and Cochrane and SO’s Brighty and Turton, discrimination on the basis of age and the potential for the union to seek urgent interlocutory relief in the Federal Court with Karen Doran, Deputy Director General (DDG) Justice and Community Safety. Mr Mcconville told DDG Doran that correspondence would soon be sent seeking that members be placed on leave on half pay while discussions were entered into for the purpose of avoiding litigation and disputation.
(c) at approximately 3:45pm Mr McConville spoke with Assistant Commissioner Phillips of the Emergency Services Agency (ESA) regarding the matters he had discussed with DDG Doran. Assistant Commissioner Phillip said to Mr McConville that work would be done to resolve the matter before Christmas.
(d) While in discussions with Assistant Commissioner Phillips Mr Mcconville caused to be sent to the Chief Officer correspondence advising him that an urgent interlocutory injunction would be sought unless flexible working arrangement applications that had been made by the discriminated members be approved or alternatively, that at the very least Cmdr Harmey be granted leave on half pay until 31 January 2023 to allow time for a resolution to be reached regarding return to work issues. This correspondence required a response from ACTF&R no later than noon Monday 19 December 2022.
14.After the correspondence was sent, the union received instructions to advocate on the behalf of Superintendent Ron Weston.
15.On 19 December 2022 at approximately 12:49pm Mr Mcconville again spoke again with Assistant Commissioner Phillips regarding the issues set out in the Union’s correspondence of 16 December 2022. Mr Mcconville told Assistant Commissioner Phillips that it was important to resolve the issues raised in the 16 December 2022 correspondence to avoid disputation or litigation.
16.On 20 December 2022:
(a) at approximately 4.00pm Mr Mcconville again spoke with Assistant Commissioner Phillips regarding the issues raised in the correspondence of 16 December 2022. During the course of this discussion the Assistant Commissioner said to Mr Mcconville that he had asked Acting Chief Officer Brewer to respond to the matter in terms that would see the discriminated members continue on half pay while the substantive issue was discussed in the new year.
(b) Mr Mcconville wrote to the Chief Officer advising that Superintendent Weston was to be included as one of the discriminated members.
17.At 4:48pm on 20 December 2022 Mr Mcconville received an email from Acting Chief Officer Glen Brewer confirming that each of the discriminated members would be granted leave until 31 January 2023. At 4:57pm Mr Mcconville telephoned Acting Chief Officer Brewer to confirm that the leave granted to the discriminated members would be on half pay.
18.On 21 December 2022 Acting Chief Officer Brewer confirmed in writing that each of the discriminated members would be granted leave at half pay from 16 December 2022 and requested that leave forms be lodged by each of the discriminated members. As leave on½ pay had been approved from 16 December 2022 the Union elected not to seek interlocutory relief in the Federal Court.
19.On 10 January 2023 each of SO’s Turton and Cmdr’s Harmey and Cochrane applied for leave on half pay backdated to the 16 December 2022.
20.On 11 January 2023 SO Brighty applied for leave on half pay backdated to the 16 December 2022.
21.On 15 January 2023 each of the discriminated members (other than Superintendent Weston who was on approved leave on½ pay prior to 16 December 2022) received an email from Acting Superintendent Jim Walsh which advised them: ‘The change of leave type from full pay to half pay will result in an overpayment. Shared Services will contact you to arranged the recovery of the payment’.
22.On 19 January 2023 Mr Mcconville wrote to the Chief Officer requesting a response to the substance of his correspondence of 16 December 2023.
23.On Wednesday 25 January 2023:
(a) Mr Mcconville and Mr Hiikkinen participated in a video conference with the Chief Officer Kim Peasley and HR Commander Craig Perks where the process and forms regarding applying for a flexible working arrangements were discussed. Mr Mcconville was informed by the Chief Officer that a substantive response as to the union’s correspondence of 16 December 2022 was being prepared by the ACT Government Solicitor’s Office.
(b) Mr Chilcott of the ACT Government Solicitor’s Office informed Mr Mcconville that he had only just been briefed in respect to the matter by ACTF&R and would not be able to provide a response to the correspondence of 16 December 2023 before Friday 27 January 2023.
24.On Friday 27 January 2023:
(a) Superintendent Weston made an application by email for leave at half pay.
(b) Mr Mcconville received an email from the Chief Officer attaching correspondence. Relevantly the correspondence states:
‘Neither in your Jetter dated 16 December 2023 or in our recent discussions have you directly notified a dispute or invoked the dispute avoidance provision of the enterprise agreement despite threatening litigation.’
25. The union agreed with the position expressed in the Chief Officer’s correspondence of 27 January 2023. As a consequence, on Monday 30 January 2023 Mr Mcconville notified the Chief Officer by email of the existence of a dispute in the meaning of clause P3 of the Agreement.
26.On 31 January 2023 the Chief Officer responded to the notification of dispute.
27.On 1 February at 10:00am a dispute meeting pursuant to the Agreement was held. It was attended by Mr Hakkinen and Ms Moores on behalf of the Union. The Chief Officer, Lena Lind and Kim Peasley on behalf of the Fire Service, Donna Burns with one other from Justice and Community Safety Directorate. At the end of the meeting the dispute remained unresolved including the disputed matter of as to what status quo applied during the dispute resolution process.
28.On 21 February 2023 Davies Lawyers filed a Form F10 in the Commission on behalf of the Union.”
(citations/references omitted)
The Union contend that based on this chronology, neither party considered the Union’s correspondence of 16 December to constitute the notification of a dispute by the Union to the Chief Office pursuant to clause P3.5.2 of the Agreement. Relevantly, it said, neither party followed the steps in clause 3.5.2 namely that a discussion take place with the Chief Officer or a meeting be arranged within 7 days of the dispute being notified.
The case for the Respondent
The Respondent submits the following:
“a. the dispute arose on 16 December 2022; and
b.there were no work arrangements and patterns within the meaning of clause P3.16 of the Enterprise Agreement prior to 16 December 2022 because the employees were on leave and therefore clause P3.16 does not apply; or
c.in the alternative, the pre-dispute work arrangements and patterns which apply are that the employees are on leave subject to the terms and conditions of their employment as specified in the Enterprise Agreement. Consistent with those obligations the employees are to:
i. apply to use their entitlement to leave and receive the necessary authorisation, in order to remain on leave; or
ii. present for their relevant work arrangement, consistent with their agreed pattern of work.
11. It is the Respondent’s submission that to work out the meaning of the phrases ‘pre-dispute’ and ‘work arrangements and patterns’:
a. one does not need to go past the ordinary meaning of the words as written;
c. the common intention of the parties is plain on the ordinary meaning of the words in their context; and
d. the wording is (for the most part) plain and unambiguous, and only susceptible to a double meaning as explained in these submissions at [46].
‘Pre-dispute’
12. To determine the meaning of “pre-dispute”, one must first determine the meaning of ‘dispute’.
Meaning of dispute
13.The Enterprise Agreement does not define ‘dispute’ so we must turn to the ordinary meaning of the word. ‘Dispute’ means “to engage in argument or discussion”.
14.Looking deeper, and into the context in which the term ‘dispute’ appears, one must look at section P3 ‘Dispute Avoidance/Settlement Procedures’ set out at [10]. Clause P3.1 makes it clear that the objective of section P3 is the prevention and resolution of disputes about matters (relevantly) arising between a union (the Applicant) and the employer (the Respondent). In other words, the entirety of P3 governs a ‘dispute’.
15.The Applicant contends that the dispute in this matter commenced on 30 January 2023 on the basis that an email of that date contained a notification of the dispute. This argument is flawed in that it fails to recognise the term ‘dispute’ in section P3 is not defined by reference to the notification of the dispute. To the contrary, it makes practical sense that a dispute arises before it is notified. In the Respondent’s submission, the first time the Applicant notified the Respondent that there was a dispute between the Applicant and the Respondent was by letter on 16 December 2022. In this letter, the Applicant alleges that the Respondent:
a. has been engaging in discriminatory practices toward the employees;
b. has failed to assess leave applications in accordance with the Enterprise
Agreement; and
c. has contravened s 50 of the Fair Work Act 2009 (Cth),
and threatens proceedings in the Federal Court.
16.It is the Respondent’s submission that this letter would not have been written in these terms were there not a dispute between the Applicant and the Respondent already in existence. In particular, the very fact that the Applicant was threatening legal proceedings on 16 December 2022 is itself evidence of a dispute between the parties in existence at that time.
17.This was recognised in the email from Greg McConville on 30 January 2023, which states ‘I refer to our correspondence of 16 December 2022’, which clearly indicates that the letter of 16 December 2022 and the email of 30 January 2023 are about the same subject matter.
18.The Applicant further contends that the Chief Officer’s correspondence of 27 January 2023 indicates that a dispute had not commenced by that time, because the Chief Officer claims that the Applicant had not ‘directly notified a dispute or invoked the dispute avoidance provision of the enterprise agreement despite threatening litigation’.
19.The Respondent submits in response that the Chief Officer’s correspondence of 27 January 2023 merely identified that the union had not engaged with the dispute avoidance/resolution procedures of the Enterprise Agreement in the context of a threatened injunction in the Federal Court. This does not mean that the dispute avoidance/resolution procedures had not been invoked at all, or indeed that a dispute was not on foot.
20.Furthermore, up until 30 January 2023, the parties (and the employees) were engaging in communications about the dispute (i.e. engaging in argument or discussion), some of which is described in the Applicant’s submissions dated 21 April 2023 at [13] to [27]. This is consistent with clauses P3.1 to P3.6 of the Enterprise Agreement:
a. requiring all persons covered by the Enterprise Agreement to take reasonable internal steps to prevent and explore all avenues to seek resolution of disputes (clause P3.3);
b. setting out the preliminary steps to be taken in relation to a dispute (clause P3.5); and
c. setting out steps that must be taken if the preliminary steps have not resolved the dispute (clause P3.6).
21.The Applicant further submits that the dispute notified on 16 December 2022 was resolved when the Respondent subsequently granted the employees leave at half pay. On the contrary, the Respondent points out that the letter written by ACT Fire & Rescue notifying that leave at half pay was granted set out an interim measure in the absence of the Chief Officer and in the lead up to the Christmas and New Year period, which ended on 31 January 2023 (the interim measure). The letter states:
I can confirm that a further review of the matters raised in your correspondence will be undertaken in the new year and a further response provided to you prior to 31 January 2023.
22.Further, it is illogical that the interim measure proposed (and later implemented) by the Respondent would be implemented in circumstances where a dispute did not already exist. The fact that the Respondent implemented an interim measure in good faith to ensure the employees would not be financially or otherwise disadvantaged, particularly over the Christmas/New Year period, is not indicative of the ‘status quo’.
23.In the Respondent’s submission:
a. on the plain meaning of the words set out in clauses P3.1 to P3.7, a dispute between a union and the employer can arise well before a formal notice of dispute is issued by one of the parties;
b. this dispute between the union and the employer arose as a result of the employees, who are also union members, informing the Applicant of an issue that had arisen in relation to their leave;
c. the parties commenced an ‘argument or discussion’ (i.e engaged in a dispute) about this on 16 December 2022, as evidenced by the letter from the Applicant to the Respondent dated 16 December 2022;
d. the communications that occurred between the Applicant and/or the employees and the Respondent between 16 December 2022 and when the Applicant applied to the FWC on 21 February 2023 constitute steps that were taken in the spirit of clauses P3.1 to P3.6 of the Enterprise Agreement;
e. the interim measure was one such step, and did not resolve the dispute (see above at [21]; and
f. therefore for the purpose of clause P3.16 the dispute the subject of these proceedings arose on 16 December 2022.
Meaning of pre-dispute
24. As a commonly used prefix, ‘pre-’ means ‘prior to’ or ‘in advance of’. Therefore, it is plain that ‘pre-dispute’ is referring to the period of time before the dispute commenced.”
(citations/references omitted)
The Respondent also made detailed submissions to the effect that the pre-dispute work arrangements and patterns do not include that an employee was on leave, on the basis that leave is not work. However, given the findings below, it is unnecessary to deal with these submissions in any detail.
Consideration
For the reasons set out below, I am satisfied that the dispute date is 16 December 2022.
Starting with a consideration of the ordinary meaning of the relevant words in their context, I agree with the Respondent that the natural meaning of ‘dispute’ is ‘to engage in argument or discussion’. In my view this is what was commenced from the time of the 16 December correspondence.
It makes logical sense that for a dispute to be notified, a dispute must have already arisen, otherwise there is nothing to be notified. I agree with the Respondent that the 16 December correspondence would not have been written in the terms it was unless there was a dispute between the parties about the relevant employees. Notably, the 16 December correspondence states that if the Respondent refused to grant the leave applications of the relevant employees “for reasons that you dispute the matters alleged in this letter”, then the Respondent should grant leave at half pay until 31 January to allow time for a resolution to be reached. As is clear, the Respondent did grant leave at half pay until 31 January. Again, this supports a finding that there was a dispute on foot from 16 December.
The chronology set out by the Union also demonstrates that there were a series of events leading to the 16 December correspondence about the relevant employees’ access to leave at half pay, and this involved discussions and correspondence between the relevant employees and their supervisors.
The subsequent correspondence between the parties about the relevant employees, i.e. up to 30 January, also makes it clear in my view that there was a dispute on foot.
Critically, the 30 January correspondence from the Union starts with the words ‘I refer to our correspondence of 16 December 2022 and 19 January 2023 and your reply of today’. This supports a view that the subject matter of the 30 January correspondence was the same as and followed on from the 16 December correspondence, that being the relevant employee’s access to leave at half pay. The Respondent’s reply on 31 January, acknowledging the 30 January correspondence, references the various correspondence between the parties about the issue in dispute including the Respondent’s letter dated 21 December.
On 25 January 2023 Ms Davies of Davies Lawyers, lawyers for the Union and the relevant employees, sent an email to Mr Chilcott referencing the relevant employees and the 16 December correspondence. The email included the following:
“As you are aware on 31 January 2023 the current leave on half pay will elapse. Please advise whether your client is prepared to extend the half pay leave until this dispute has been resolved”. (emphasis added)
In my view this is a clear indication that the Union considered there was a dispute on foot about the relevant employees (having also referenced the 16 December correspondence), notwithstanding the Union did not specifically reference clause P3 until its 30 January correspondence. In this regard, there is nothing in clause P3 that requires a party to explicitly identify or reference the dispute procedure for there to be a dispute to which the dispute procedure applies.
Clause P3.5 commences with the words ‘In the event there is a dispute the following processes will apply’. I am satisfied that the 16 December correspondence met the requirement of clause P3.5.2 in that the Chief Officer was notified of a dispute by the Union. Clause P3.6 sets out the steps where a dispute remains unresolved. There is no timeframe in which the parties must move from P3.5 to P3.6.
I do not accept the submission of the Union that the issues raised in the 16 December correspondence were resolved when the Respondent agreed to half pay for the relevant employees until 31 January. This arrangement was put in place as an interim measure because of the proximity of Christmas and the unavailability of officers of the Respondent due to the taking of leave to engage in a process to resolve the dispute. Nor do I accept the characterisation of the 16 December correspondence by the Union as the notification of an ‘issue’ between the Union and the Respondent in a way that is different to a dispute.
The correspondence between the parties does not support the submissions made by the Union that there were ‘dissatisfied employees’ but no dispute as at 16 December. The key issue that was the subject of the 16 December correspondence is the same issue that formed the notification of this dispute to the Commission, that being the entitlement of the relevant employees to access leave at half pay as part of a flexible working arrangement.
I note the reliance of the Union on the decision in Tomvald v Toll Transport[1] and the submission that ‘dispute’ for the purpose of the dispute resolution clause has a technical meaning. The dispute resolution clause the subject of that decision is in slightly different terms to what is in the Agreement here, including referencing the existence of a ‘matter’ rather than ‘dispute’ in part of that clause.
As a result of finding the dispute date is 16 December 2022, there is no entitlement (other than for Mr Weston who was already on half pay leave) to half pay leave for the relevant employees by virtue of the operation of the status quo provision.
The preliminary issue is so determined, and the application will now be listed to deal with the substantive dispute.
DEPUTY PRESIDENT
Appearances:
S Bingham of Counsel for the United Firefighters’ Union of Australia.
M Chilcott of ACT Government Solicitor for ACT Fire & Rescue.
Hearing details:
2023.
By video:
May 17.
[1] [2017] FCA 1208.
Printed by authority of the Commonwealth Government Printer
< PR764021>
0