United Firefighters' Union of Australia v Airservices Australia
[2021] FWCFB 6056
•2 DECEMBER 2021
| [2021] FWCFB 6056 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
United Firefighters’ Union of Australia
v
Airservices Australia
(C2021/6347)
| DEPUTY PRESIDENT HAMILTON | MELBOURNE, 2 DECEMBER 2021 |
Appeal against decision [2021] FWC 5126 of Deputy President Dean at Canberra on 27 August 2021 in matter number C2019/5997
The appellant, the United Firefighters’ Union of Australia and Airservices Australia, the respondent to this appeal, are in dispute about the proper construction and effect of clause 82 of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021 (Agreement). Specifically, the dispute concerns whether clause 82 has the effect of imposing a requirement that employees covered by the Agreement possess an Advanced Diploma in Public Safety (Fire Fighting Management) as a condition precedent to appointment as a Local Operations Manager, a position which is not covered by the Agreement. Pursuant to an application by the appellant under s 739 of the Fair Work Act 2009 (Act), Deputy President Dean determined the dispute by arbitration. The issue in the dispute was distilled into the following question: Whether an employee covered by the Agreement, who does not hold an Advanced Diploma, could be appointed to the position of Local Operations Manager? The Deputy President decided that an employee covered by the Agreement who does not hold an Advanced Diploma can be appointed to the position of Local Operations Manager.[1] By its notice of appeal dated 17 September 2021, the appellant applies for permission to appeal and if granted, it appeals that decision.
The Decision
The Deputy President’s reasoning underpinning her answer is set out in the following paragraphs of the decision under appeal:
[52] It is my view that clause 82 sets out what is required for progression through the classifications covered by the Agreement, that is, from Recruit through to Fire Commander. Clause 82 does not make any reference to a Local Operations Manager.
[53] The role of a Local Operations Manager is not a “classification” covered by the Agreement. I accept that the Agreement does not codify the requirements for the appointment of a Local Operations Manager, nor does it make it mandatory for an employee, who is covered by the Agreement, to hold an Advanced Diploma in order to be promoted to the position of Local Operations Manager.
[54] I agree with Airservices that an Advanced Diploma is not a “required qualification” for the purposes of clause 82, nor is an Advanced Diploma otherwise characterised in the Agreement as a “required” or mandatory qualification.
[55] That subclause 82.7 provides that Station Officers and Fire Commanders “will be encouraged” to continue studies towards an Advanced Diploma does not mean that there is a mandatory obligation to complete study at that level or require that particular qualification for progression beyond those roles.
[56] I accept that the plain or ordinary meaning of subclause 82.7 is that Station Officers and Fire Commanders, on completing an Advanced Diploma, possess an academic certification which establishes that he or she is fit to perform in a position above the Fire Commander classification. I agree with Airservices that there is nothing to indicate that the achievement of an Advanced Diploma is the only way that a person may establish that they are qualified for promotion, or that the parties intended to regulate the manner in which Airservices makes an appointment to a position which is not covered by the Agreement.
[57] In circumstances where it is acknowledged that the Agreement imposes no similar requirement on the engagement of external recruits to that role, the UFU’s interpretation would result in employees under the Agreement being disadvantaged. I consider this to be an unlikely intention of the parties. Further, a “business common sense” construction of industrial agreements supports my view that the Airservices interpretation is correct.
[58] For these reasons I find that an employee covered by the Agreement who does not hold an Advanced Diploma can be appointed to the position of Local Operations Manager . . .[2]
Ground of appeal and contentions
The appellant advances three appeal grounds contending error in the Deputy President’s decision. First, the appellant contends error in the finding that an employee covered by the Agreement who does not hold an Advanced Diploma can be appointed to the position of Local Operations Manager. Secondly, it contends error in the conclusion that clause 82 of the Agreement is referable only to what is required for progression through the classifications covered by the Agreement. Thirdly, it contends error in the conclusion that an Advanced Diploma is not a required qualification for the purposes of clause 82 of the Agreement nor is it otherwise characterised in the Agreement as a required or mandatory qualification.
In short compass, the appellant relies on and adopts several textual and contextual observations about particular provisions of the Agreement made by a Full Bench in United Firefighters’ Union of Australia v Airservices Australia[3] in a related appeal which concerned whether the dispute the subject of the earlier mentioned s 739 application was one about a matter arising under the Agreement and contends in summary:[4]
·In respect of each of the required training qualifications and competencies, clause 82 of the Agreement sets out a scheme the effect of which is that the competencies are required for progression (or promotion);
·A failure to achieve those competencies precludes an employee from progression or promotion;
·The employees upon whom the clause operates are employees who are within the classifications set out in clause 82.1 (reflective of those set out in clause 87.2 which deals with salaries for each classification), namely Recruit through to Fire Commander levels;
·The promotion and progression of these employees is regulated by Agreement and the method by which these employees progress “through” the classifications (including through Fire Commander) is regulated by the qualifications (both academic and practical) found in clause 82;
·The academic qualifications for which the Agreement provides range from Certificate II in Public Safety (Firefighting and Emergency Operations) – a necessary qualification for continued employment – through to the Advanced Diploma in Public Safety (Firefighting Management) rendering an employee “qualified for promotion to positions above” Fire Commander;
·Clause 82 of the Agreement is thus to be read as a scheme regulating the required training qualifications and competencies which condition progression and promotion of employees. The clause operates on those employed under the Agreement to the effect that it sets out qualifications and experience necessary for those employees to gain promotion, progression and consequentially greater responsibility and authority and includes promotion to positions for which the Agreement does not provide such as a Local Operations Manager.
The respondent contends that on a proper construction of clause 82 of the Agreement the Deputy President correctly answered the question and contends in summary:
·The highest classification in the Agreement is Fire Commander and there is no classification for a Local Operations Manager;
·Clause 82.1 of the Agreement provides that progression through the classifications is dependent on achieving the required qualifications “in accordance with” those listed in the specified table. None of these pertain to a Local Operations Manager nor an Advanced Diploma qualification;
·The appellant’s reliance on the word “through” in clause 82.1 to support an argument that clause 82 regulates progression “through” the Fire Commander rank to a higher position invites a rewriting of the clause to insert words that are not present;
·To similar effect, reading clauses 82.1 and 82.7 in the manner suggested by the appellant would have the result that only upon completion of an Advanced Diploma will employees be qualified for promotion above Fire Commander, however clause 82.7 has a plain meaning – that a Fire Commander or Station Officer will be qualified for, in the sense of fit to perform, positions above Fire Commander on promotion. The word “only” does not appear in clause 32.7;
·Clause 82.8 does not provide that failure to achieve the required qualifications precludes progression, including to the Local Operations Manager classification. Instead, clause 82.8 directs attention to the required qualifications in clause 82.1, namely those listed in accordance with the table in that clause and which contains no reference to Local Operations Manager or an Advanced Diploma qualification;
·Clauses 82.6 and 82.7 do not codify the factors relevant to the respondent’s assessment of an employee's suitability for progression or promotion to a higher classification. Clauses 82.2 to 82.7 do not deal with progression from Station Officer to Fire Commander at all. The note under the table at clause 82.1 provides the respondent with discretion to vary the requirements in that table. If clauses 82.2 to 82.7 were prescriptive rather than descriptive, the note would have no work to do.
·The appellant’s construction runs counter to a “business common sense” construction because:
oit creates a two-tier system for external (non-covered) and internal recruits (covered), where the disadvantage lies upon internal recruits, who must hold a qualification which would not be required from an external candidate;
ohigher classifications since 2005 have been removed from coverage in predecessor enterprise agreements – including the pay, work descriptors and qualifications required for those classifications – and it is improbable that the subsequent agreement makers intended to retain a qualification requirement for those higher classifications, in the absence of clear words to that effect;
oan existing employee who ceases to occupy a position covered by the Agreement, also ceases to be covered by the Agreement. The “requirement” for which the appellant contends would thereby cease once a covered employee resigns or signs a letter of engagement for a higher position, whether acting or permanent. Thus, it defies business common sense for the “requirement” to be easily avoided by such routine and not improper steps.
Consideration
The approach of a Full Bench to the determination of an appeal depends on the nature of the decision against which the appeal is brought. It is uncontroversial that the answer given by the Deputy President turned wholly on the Deputy President’s construction of certain provisions of the Agreement. If the Deputy President’s construction of the Agreement is correct her answer is also correct. None of this involved the exercise of discretion. The Deputy President was either correct or she was not. For the reasons which follow, we consider the Deputy President was correct.
The principles applicable to the construction of the Agreement were not in dispute before the Deputy President, nor on appeal. These need not be restated.[5] We turn to the text of the Agreement and the proper construction of clause 82.
Clause 69 of the Agreement is concerned with recruitment and selection. It sets out an obligation that the respondent make recruitment and promotion decisions based only on merit and relative efficiency and provides:
“69. Recruitment and selection
69.1 Airservices will make recruitment and promotion decisions based only on merit and relative efficiency. This means fair and open competition involving consideration of the best available field of candidates taking account of the advantages of developing and progressing Airservices’ employees. Permanent vacancies will be filled as soon as practicable, and where possible, no greater than 12 months from when the vacancy arises.
69.2 Airservices will comply with its obligations under anti-discrimination legislation.
69.3 Employees may be transferred to any position at level for the purposes of operational efficiency, development, for equal opportunity reasons, in the event of being potentially surplus, as a result of a selection exercise or in accordance with transfer arrangements (see clause 30).”
Clause 82 of the Agreement contains provisions concerning progression through classifications and provides:
“82. Progression
82.1 Progression through the classifications is dependent on achieving the required qualifications and meeting the minimum time-based criteria in accordance with the following table
Qualification required Service required Recruit Working towards Certificate II
Duration of recruit course Aviation
Firefighter level 1 (AFF1)
Certificate II in Public Safety (Fire Fighting and Emergency Operations)
Upon successful completion of recruit course Aviation
Firefighter level 2 (AFF2)
Successful completion of Location Specific Competencies (LSC), including Certificate III modules appropriate to the LSC requirements
After a minimum of 12 months at AFF1 Lead Aviation Firefighter
(LAFF)Certificate III in Public Safety (Fire Fighting and Emergency Operations)
After a minimum of 12 months at AFF2 Sub-Station
Officer
(SSO)Certificate IV in Public Safety (Fire Fighting Supervision)
After a minimum of 3 years at LAFF Station Officer
(SO)Diploma in Public Safety (Fire Fighting Management)
Appointment on the basis of position availability and merit-based selection process. Fire Commander
(FC)Diploma in Public Safety (Fire Fighting Management)
Appointment on the basis of position availability and merit-based selection process.
Note: Based on an employee’s qualifications and experience, and subject to the employee’s suitability, Airservices may place an employee on an accelerated career progression. Any change to the progression requirement time frames set out in the table above will be determined by Airservices and will be subject to the agreement of the employee.
82.2 On recruitment, employees will commence recruit training. Continued employment is dependent on successful completion of the Certificate II in Public Safety (Fire Fighting and Emergency Operations). Upon successful completion of all competency units (or direct entry assessment) the employee will progress to AFF1.
82.3 As an AFF1, employees will be assigned a fire station and dayshift duties until sufficient location specific competency units have been achieved to partake in an operational position. The employee will continue studies toward the Certificate III in Public Safety (Fire Fighting and Emergency Operations). Upon a minimum of 12 months of service at AFF1 level and the successful completion of all location specific competency units (and relevant PSTP Units), employees will progress to AFF2.
82.4 As an AFF2, employees will continue studies toward the Certificate III in Public Safety (Fire Fighting and Emergency Operations). Upon a minimum of 12 months of service at AFF2 and successful completion of all Certificate III units, employees will progress to LAFF.
82.5 After 12 months service as a LAFF, an employee may be selected by Airservices to undertake the Certificate IV in Public Safety (Fire Fighting Supervision). Airservices will select employees based on merit, including an assessment of operational skills and knowledge. After successful completion of the Certificate IV in Public Safety (Fire Fighting Supervision), and at least three years as an LAFF, the employee will progress to the classification of Sub Station Officer.
82.6 On successful completion of a Diploma in Public Safety (Fire Fighting Management), employees will be qualified for promotion to SO, subject to position availability. Appointments will be on the basis of merit in accordance with clause 69 of this Agreement. SSOs will also receive ongoing coaching and development to facilitate progression towards being deemed suitable to perform second in command functions as part of an operational crew.
82.7 Subject to suitability, SOs and FCs will be encouraged to continue studies toward an Advanced Diploma in Public Safety (Fire Fighting Management). On successful completion of all competency units, employees will be qualified for promotion to the positions above FC. Appointments will be on the basis of merit in accordance with clause 69 of this Agreement.
82.8 Failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met.
82.9 A reduction in classification may only occur after a performance and disciplinary process has been undertaken in accordance with clause 72 of this Agreement.”
Clause 87 of the Agreement sets out the salaries payable to employees under the Agreement for each classification for which the Agreement provides. The classifications in clause 87 mirror those found in clause 82.1.
As should be evident from the text of clause 82 of the Agreement, progression through the ranks from Recruits to Sub-Station Officers is structured by reference to the possession of prerequisite qualifications, associated competencies and meeting service-related criteria. Once the prerequisite qualifications, associated competencies and minimum service-related criteria are met progression from one rank to the next, as clauses 82.2 – 82.5 make clear, is automatic. Although structured in this way, it is also plain from the note at the end of clause 82.1 that accelerated progression is permissible. Therefore, subject to agreement with a relevant employee, the respondent may, having regard to the employee’s qualifications, experience, and suitability, accelerate the progression of the employee through the ranks even though progression requirement time frames for advancement from one rank to another fixed by clause 82.1 have not been met.
A hard progression barrier is erected for progression to positions beyond Sub-Station Officers. Progression to the ranks of Station Officer and Fire Commander is conditioned on obtaining the prerequisite qualification, the availability of a position and a merit-based selection process. The latter being a reference to appointments made on the basis of merit in accordance with clause 69 of this Agreement.
Clauses 82.6 and 82.7 of the Agreement deal inter alia, with the qualifications which will render an employee “qualified for promotion”. An employee will be qualified for promotion to the position of Station Officer “on successful completion of a Diploma in Public Safety (Fire Fighting Management)”. An employee will be qualified for promotion to the positions above Fire Commander on successful completion of all competency units of study in the Advanced Diploma in Public Safety (Fire Fighting Management). Neither clause sets out when an employee will be qualified for promotion to Fire Commander, although as clause 82.1 makes clear, a required qualification for that position is a Diploma in Public Safety (Fire Fighting Management). By clause 82.8 a failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met. We consider that the reference to “public safety training qualifications competencies” in clause 82.8 is a reference to the required qualifications and associated competencies described in the table in clause 82.1.[6]
There can be little doubt that the Agreement establishes a regimented and highly prescriptive scheme of eligibility for progression and promotion, reflective of a firefighter rank structure which applies to employees covered by the Agreement. The Agreement sets out formal qualification, associated competencies, service and experience criteria, and it provides employees the protection that the respondent will make recruitment and promotion decisions based only on merit and relative efficiency. However, the highly prescriptive progression scheme does not have the result for which the appellant contends for the following reasons.
First, we consider that clause 82 is concerned with establishing a regime which regulates progression “through” the classifications for which the Agreement provides. The phrase “progression through the classifications” in clause 82.1 plainly expresses movement from one end of the rank structure through to the other end. It is not concerned with movement beyond the classification structure for which clause 82.1 provides. That is, progression “though” the classifications begins at “Recruit” and ends at “Fire Commander”. The Agreement does not regulate employee progression through to a classification for which the Agreement makes no provision.
Secondly, we agree with the respondent’s contention that the phrase “will be qualified for promotion” in clause 82.7, and indeed in clause 82.6, understood in the context of the classification structure in clause 82.1, means no more than that an employee possessed of the specified qualification will be fit, prepared, ready or suitable to be appointed to and perform a higher role. That an employee cannot be appointed to the position of Station Officer without first completing a Diploma in Public Safety (Fire Fighting Management), does not alter the meaning of “will be qualified for promotion” in clause 81.6 so as to erect, by that phrase, a barrier to promotion. Such a reading adds nothing as the barrier or precondition to appointment is already erected by clause 82.1. The absence in clause 82.1 of any classification and qualification precondition for a Local Operations Manager confirms that the Agreement does not regulate that classification or appointment thereto and lends support to the construction of the phrase “will be qualified for promotion” in clause 82.7 for which the respondent contends and which we consider is correct. Read in this way the phrase “will be qualified for promotion” in clauses 82.6 and 82.7 carries the same meaning.
Thirdly, even if the phrase “will be qualified for promotion” in clause 82.6 could be read as imposing a qualification barrier for progression from Station Officer to Fire Commander, this would be because clause 82.1 makes plain that this is so. It does not follow that the phrase has the same meaning in clause 82.7. Whilst it may be presumed that use of the same phase in adjacent provisions of the Agreement is intended to carry the same meaning, context is important. The meaning of words and phrases which are apt to have variable meanings, as with the phrase “will be qualified for promotion” depend on the context in which the words appear. Here, although clauses 82.6 and 82.7 contain the same phrase, clause 82.7, unlike clause 82.6, has no corresponding classification or position in clause 82.1 to which an employee may be promoted, and no qualification barrier to such a position. This suggests strongly that the phrase “will be qualified for promotion” in clause 82.7 means no more than the employee is fit, prepared, ready or suitable to be appointed or promoted to, and to perform, a higher role beyond a Fire Commander.
Fourthly, clause 82.8 which provides that a failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met, does not have the effect for which the appellant contends. As we have already noted the reference to “public safety training qualifications and competencies” in clause 82.8 is to those fixed by clause 82.1. No such public safety training qualifications and competencies are fixed for the position of Local Operations Manager because self-evidently the Agreement does not regulate that position. Clause 82.8 is concerned only with the deferral or curtailment of progress through the classifications in clause 82.1. It is not concerned with a deferral or curtailment of progress to positions beyond those classifications.
Fifthly, clause 83.7 which provides a work level descriptor for Fire Commanders provides that at category 5 fire stations, Fire Commanders may be responsible as the Local Operations Manager. Clause 83.7 contains no prerequisite qualification requirements and is inconsistent with the notion that Fire Commanders who do not hold an Advanced Diploma in Public Safety (Fire Fighting Management) will not be qualified, in the sense of a prohibition, to be appointed as a Local Operations Manager.
Sixthly, the requirement of holding an Advanced Diploma in Public Safety (Fire Fighting Management) as a condition precedent to appointment as a Local Operations Manager for which the appellant contends would cease if an employee resigned from a position covered by the Agreement before accepting such an appointment. Similarly, the requirement would not apply at all to the appointment of a candidate who is not covered by the Agreement. The appellant’s reading of the provisions would disadvantage employees who are covered by the agreement who do not hold the qualification but who might otherwise be suitable for appointment. Such a result would be absurd and a construction that results in an absurd result should be avoided. It is to be remembered that although this proceeding was concerned with progression to Local Operations Manager, clause 82.7 is not so confined. It sets out the readiness for appointment to any position within the respondent’s organisation above Fire Commander. On the appellant’s construction any employee covered by the Agreement would be ineligible to be appointed to any such higher position unless the person met the qualification prerequisite said to be imposed by clause 82.7. This would be so regardless of whether the qualification was necessary, desirable or even relevant to the higher position. There is no logical or rational reason why such a reading should be adopted.
Seventhly, while it may be accepted that the qualification and competency prerequisites related to progression and promotion through the classification structure in clause 82.1 are designed to protect standards, they are concerned only with standards in respect of the classifications for which the Agreement provides. Moreover, accepting the appellant’s contention that a regimented rank progression and training structure benefits employees covered by the Agreement in their progression though the ranks,[7] we are unable to see what benefit is derived if employees are prevented from progressing to a position which is not covered by the Agreement because they do not hold a qualification that is not required for that position and which external candidates need not hold. Reading the provisions as the appellant contends does not maintain standards of qualifications and competencies for Local Operations Managers for the reasons outlined in the preceding paragraph but serves only to limit the promotion opportunities for employees covered by the Agreement.
We consider the Deputy President correctly answered the question posed by the parties in resolving the dispute. As there is no error in the decision and since the issues agitated on appeal have no broader application than to resolve an inter partes dispute, we do not consider that it is in the public interest for permission to appeal to be granted, nor do we consider there to be any other discretionary factors favouring the grant of permission to appeal. Permission to appeal will therefore be refused.
Order
We order that permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
E White of Counsel for the appellant
A Bell of Counsel for the respondent
Hearing details:
2021
Melbourne, Canberra and Sydney (via video)
17 November
Written submissions:
Appellant, 13 October 2021
Respondent, 3 November 2021
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[1] United Firefighters’ Union of Australia v Airservices Australia[2021] FWC 5126 at [58]
[2] Ibid at [52]-[58]
[3] [2020] FWCFB 4785 at [27]-[31] and [33]-[37]
[4] The appellant also relies on its submission before Dean DP and those made in United Firefighters’ Union of Australia v Airservices Australia [2020] FWCFB 4785
[5] For a discussion of the principles of construction see for example WorkPac Pty Ltd v Skene [2018] FCAFC 131, at [197] and the authorities referred to therein.
[6] This was accepted by the appellant, see Transcript at PN31-PN34.
[7] Transcript PN68
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