United Firefighters' Union of Australia v Airservices Australia
[2021] FWC 5126
•27 AUGUST 2021
| [2021] FWC 5126 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Airservices Australia
(C2019/5997)
DEPUTY PRESIDENT DEAN | CANBERRA, 27 AUGUST 2021 |
Application to deal with a dispute.
[1] On 1 October 2019, the United Firefighters’ Union of Australia (UFU) by its aviation branch filed an application pursuant to s.739 of the Fair Work Act 2009 to deal with a dispute with Airservices Australia (Airservices) in accordance with clause 20 (Dispute Resolution) of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021 (the Agreement).
[2] The application involves a dispute about whether an employee who is covered by the Agreement is required to hold an Advanced Diploma in Public Safety (Firefighting Management) (Advanced Diploma) in order to be appointed to the position of a Local Operations Manager.
Background
[3] Airservices is Australia’s air navigation service provider and is responsible for Australia’s airspace management, aeronautical information, aviation communications, radio navigation aids, and aviation rescue fire fighting services. Airservices provides aviation rescue fire fighting services at 26 airports across Australia. The primary function of the aviation rescue fire fighting services is to rescue people and property from an aircraft crash or fire and from other fires at the airport. The most senior position at each airport is the Local Operations Manager. A Local Operations Manager is a classification higher than a Fire Commander. There is one Local Operations Manager per airport. Each aviation rescue fire fighting station is staffed by a number of fire crews working on a shift work roster. Each fire crew is led by a Fire Commander, who reports directly to a Local Operations Manager.
[4] On 29 May 2020, Deputy President Kovacic issued a Decision 1 in this matter. He determined that the current application did not concern a dispute about a matter arising under the Agreement in circumstances where the Agreement does not mandate the qualifications required for appointment to the position of a Local Operations Manager and therefore found that the Commission had no jurisdiction to deal with the dispute.
[5] On 18 June 2020, UFU lodged a notice of appeal under s.604 of the Act.
[6] On 22 September 2020, the Full Bench granted the UFU permission to appeal and the appeal was upheld, 2 with the Full Bench finding that:
“…there is a dispute about whether the Agreement proscribes the appointment by Airservices of an employee covered by the Agreement to a Local Operations Manager role without first holding qualifications mentioned in clause 82.7 of the Agreement. This is quintessentially a dispute about a matter arising under the Agreement.” 3
[7] Following the appeal, this matter was remitted to me for determination in accordance with the Orders of the Full Bench as a result of the Commission having jurisdiction to deal with the dispute.
[8] The question I now need to determine is as follows:
“Whether an employee covered by the agreement, who does not hold an Advanced Diploma, could be appointed to the position of Local Operations Manager.”
[9] A hearing was conducted by telephone on 17 March 2021, with Mr E White of Counsel appearing for the UFU, and Mr A Bell of Counsel appearing for Airservices.
[10] In determining this dispute, I have had regard to the principles applicable to the construction of an enterprise agreement which were canvassed in detail in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd 4 (Golden Cockerel)and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited5(Berri).
[11] For the reasons set out below, I find that the relevant provisions of the Agreement do not require an employee covered by the Agreement to hold an Advanced Diploma to be promoted to the position of Local Operations Manager.
Relevant provisions
[12] The relevant clauses in the Agreement that were identified by one or both parties as relevant to determining the dispute are as follows:
4. Parties bound
4.1 This Agreement covers Airservices and all employees employed in a classification set out in clause 87 of this Agreement.
4.2 ….
20. Dispute resolution
20.1 In the event of a dispute about a matter arising under this Agreement or in relation to the National Employment Standards between Airservices and an employee, the procedure to be followed to resolve the matter will be as follows:
(a) The parties first shall genuinely attempt to resolve the dispute at the workplace level. This will involve the relevant employee or employees meeting and conferring about the matter with their manager. All relevant information regarding the matter will be exchanged before, during, or on conclusion of such meeting/s.
(b) If the matter is not resolved after step (a) above, or the nature of the matter is such that it is appropriate to raise it immediately with more senior levels of management, then discussions will occur with senior management as soon as practicable.
(c) If the matter cannot be resolved by following the process outlined above, then any of the parties to the dispute may apply to the FWC to have a dispute resolution process conducted under the Act in relation to the matter. The FWC will have the power to settle the dispute by:
(i) conciliation; and
(ii) arbitration (where the dispute was not resolved at conciliation, or if the parties to the dispute agree to arbitration without conciliation first).
20.2 An employee who is a party to the dispute may appoint an employee representative for the purposes of the procedures in this clause 20.
20.3 Unless otherwise agreed by the parties, the powers that the FWC can exercise under this clause are those powers available to it under the Act as at the time that this Agreement commences to operate.
20.4 While a concern or dispute is being dealt with, work will continue as normal save for any bona fide safety concerns.
…
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).
…
PART F – CLASSIFICATIONS AND PAY
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), | After a minimum of 12 months at AFF1 |
Lead Aviation Firefighter | Certificate III in Public Safety (Fire Fighting and Emergency Operations) | After a minimum of 12 months at AFF2 |
Sub-Station | Certificate IV in Public Safety (Fire Fighting Supervision) | After a minimum of 3 years at LAFF |
Station Officer | Diploma in Public Safety (Fire Fighting Management) | Appointment on the basis of position availability and merit-based selection process. |
Fire Commander | 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 day shift 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.
83. Work level descriptors
83.1 Employees at all classifications will carry out the functions and other duties ancillary to their role within the limit of their competencies, skills and experience to assist in improving the overall effectiveness of the team and fire station they are working at.
83.2 AFF1s will complete all location specific competencies (including any related Certificate III module requirements) appropriate to the fire station they work at. AFF1s will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.3 AFF2s will have completed all location specific competencies appropriate to the fire station and will continue Certificate III studies through to completion. AFF2s will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.4 LAFFs will hold the qualification of Certificate III in Public Safety (Fire Fighting and Emergency Operations) and will carry out all the functions associated with those competencies and training received. LAFFs will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.5 SSOs will hold the qualification of Certificate IV in Public Safety (Fire Fighting and Emergency Operations) incorporating supervisory units and will carry out all the functions associated with those competencies and training received. SSOs will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.6 SOs will take charge of a team or portion of a team of fire fighters and as a first line supervisor be responsible for the operational effectiveness and administrative functioning of the team. SOs will carry out the functions associated with the competencies they hold and have been trained for, including those of FC if requested. SOs will use their skills to develop all team members and improve the overall effectiveness of the team and fire station.
83.7 FCs will take charge of a team of fire fighters and as a supervisor be responsible for the operational effectiveness and administrative functioning of the team. At category 5 fire stations, FCs may be responsible as the local operations manager. FCs will provide managerial, administrative and operational support to the local operations manager.”
…
87. Salary
87.1 Airservices will pay employees’ annual base salary as set out in the table below. Pay increases will come into effect in the first full pay period following the times set out below.
87.2 Airservices will pay salary each fortnight into an account nominated by each employee.
From commencement (3% increase) | 1 year after commencement | 2 years after commencement (1% increase) | |
Recruit | $41,005 | $41,825 | $42,244 |
AFF1 | $63,010 | $64,270 | $64,913 |
AFF2 | $72,463 | $73,912 | $74,651 |
LAFF | $89,982 | $91,781 | $92,699 |
SSO | $95,145 | $97,048 | $98,019 |
SO | $104,822 | $106,919 | $107,988 |
FC | $113,095 | $115,357 | $116,511 |
The case for the UFU
[13] The UFU submitted that this is a dispute relating to the promotion of Airservices employees, who are covered by the Agreement, to positions above the Fire Commander classification who do not hold an Advanced Diploma, and as a result, these appointments are in contravention of the Agreement. The UFU asserted that current practice is inconsistent with the provisions under the Agreement and that unqualified people have been appointed to Local Operations Manager roles, which in turn, raises critical safety and risk issues for their members and the public.
[14] The UFU relied on its written submissions dated 16 December 2019, 29 January 2020, 20 July 2020, 17 August 2020, 15 February 2021 and 9 March 2021.
[15] The UFU relied on evidence provided by Mr Mark von Nida, Branch Secretary (along with accompanying attachments), that Airservices has been appointing employees to the position of Local Operations Managers who do not hold the required Advanced Diploma as stipulated by the Agreement.
[16] During the hearing, the UFU submitted that those appointed to the role of Local Operations Managers without the Advanced Diploma should revert back to their substantive position as they have not been appointed in accordance with the Agreement.
[17] The UFU submitted that clause 82 of the Agreement sets out and regulates how employees who are covered by the Agreement progress through the variety of classifications, up to and including Fire Commanders, dependent upon the achievement of particular qualifications and meeting minimum time-based criteria in accordance with the table set out in subclause 82.1. These employees are required to have certain qualifications in order to progress to the next classification. The UFU contended that clause 82 of the Agreement also regulates the progression above the Fire Commander classification, to that of a Local Operations Manager.
[18] The UFU submitted that the evident purpose of clause 82 is to provide for a promotional path predicated by both experience and academic qualifications. In addition, it contended that the creation of subclause 82.7 was for the purpose of maintaining appropriately qualified and skilled people for specific emergency and critical roles.
[19] The UFU relied on subclause 82.7 of the Agreement which states that Station Officers and Fire Commanders will be encouraged to continue studies towards an Advanced Diploma. The UFU further contended that the Advanced Diploma is a “required public safety training qualification” for the purposes of the Agreement and as such is a mandatory requirement for progression to a classification above Fire Commander.
[20] In addition, the UFU submitted that their interpretation of the Agreement is supported by subclause 82.8 which should be read in conjunction with subclause 82.7, insofar as subclause 82.7 provides the circumstances in which employees will become qualified for promotion and outlines what is required to progress through the rank of Fire Commander to a higher position, and that subclause 82.8 provides that failure to achieve the required public safety training qualifications and competencies, in this instance an Advanced Diploma, will result in the deferral or curtailment of progression until met.
[21] The UFU submitted that the plain words and meaning of subclauses 82.7 and 82.8 of the Agreement require that no existing employee could be promoted into the Local Operations Manager position without first holding an Advanced Diploma and completing all the competency units. It is only in these circumstances that the UFU argued an employee could qualify for a promotion to a position above Fire Commander.
[22] In the UFU’s submissions, it stated that it was irrelevant whether or not a Local Operations Manager is covered by the Agreement. It contended that the Agreement tells those who are covered by it what qualifications they need to progress to a higher level and it is irrelevant whether the classification to which those persons might progress is not covered by the Agreement.
[23] The UFU’s submissions relied on the word “through” in subclause 82.1 and put emphasis on “progression through” the classifications, from one rank to another. The UFU referenced the Macquarie Dictionary definition of the word “through” as meaning “in at one end, side or surface (in this case the classification) and out at the other (through promotions)”. Consequently, the UFU contended that clause 82 sets out the qualifications (both academic and practical) by which employees are to progress through to be promoted to a higher position and that this progression does not end at Fire Commander.
[24] The UFU agreed that the dispute is confined only to internal promotions of existing employees, who are covered by the Agreement, to the position of Local Operations Manager and will have no application to Local Operations Managers recruited externally, insofar as external recruits may not be required to hold an Advanced Diploma. However, the UFU contended that external recruits were a separate issue to that which was in dispute and not relevant to the interpretation of clause 82 of the Agreement.
[25] In response to Airservices argument that those in the Local Operations Manager roles are only “acting” and have not been appointed, the UFU submitted that there is no contextual reason to limit the meaning of the word “promotion” to exclude “acting” positions, and that anyone “acting” in the Local Operations Manager role should have an Advanced Diploma.
[26] In relation to the Federal Circuit Court decision relied upon by Airservices in United Firefighters’ Union of Australia v Airservices Australia 6(the FCC Decision), the UFU submitted that the FCC Decision is different and distinguishable to the current dispute before the Commission and should not be applicable.
[27] The UFU submitted that similar provisions have been in past agreements and no person had been promoted above Fire Commander without first holding the relevant qualifications. This could be seen in the Airservices Australia Certified Agreement 2002-2005 onwards. The UFU stated that the provisions of the Airservices Australia Enterprise Award 2016 also provide for classifications, including that of Fire Commander, to hold an Advanced Diploma.
[28] The UFU adopt and rely on the observations made in the Full Bench appeal decision in relation to this matter at paragraphs [27]-[31] and [33]-[37] which are set out as follows:
“[27] Clause 82 of the Agreement makes provision for a structured progression from one rank to another. Employees progress through the classifications:
• at the lower levels (Recruit to Sub-Station Officer) through a combination of required qualifications and service-related criteria; and
• to higher levels (Station Officer to Fire Commander) through a combination of required qualifications, availability of position and a merit-based selection process.
[28] As clauses 82.2 – 82.5 of the Agreement make clear, progression from Recruit to each classification up to and including Sub-Station Officer is automatic once the required qualifications and service-related criteria for progression are met.
[29] A hard progression barrier for progression to levels beyond Sub-Station Officer exists. There is a qualification requirement (Diploma in Public Safety (Fire Fighting Management)), a position at a higher classification level (Station Officer or Fire Commander) must be available and appointments will be on the basis of merit in accordance with clause 69 of the Agreement.
[30] Clause 82 of the Agreement also deals with promotion to positions above Fire Commander, which includes promotion to the position of Local Operations Manager. Clause 82.7 provides that subject to suitability, Station Officers or Fire Commanders:
“… 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.”
[31] The Agreement plainly establishes a regimented and highly prescriptive scheme of eligibility for progression and promotion which applies to employees covered by the Agreement. It sets out formal qualification and experience criteria, and it provides employees the protection of the assurance in clause 69 of the Agreement that Airservices will make recruitment and promotion decisions based only on merit and relative efficiency levels. The terms of clause 82 inform those decisions. There is nothing inherently wrong in an agreement also regulating the terms on which employees, while covered by the Agreement, might be eligible or qualified for promotion to a position which is not covered by the Agreement. The purpose of the provisions is to establish a scheme for promotion and progression (based on a mix of qualifications, experience and merit appointment as applicable) of employees covered by the Agreement through the classification structure of the Agreement.
…
[33] There is both textual and contextual support for the construction of the Agreement for which the UFU contends. For example, the emphasised words in clause 82.7 above, are in terms the same as those appearing in clause 82.6 which provides:
“On successful completion of a Diploma in Public Safety (Fire Fighting Management), employees will be qualified for promotion to SO…”
[34] Consequently, they might be presumed to have the same meaning and effect.
[35] The words “will be qualified” in both clauses 82.6 and 82.7 might suggest that a person without the qualification will not be qualified.
[36] That this might be so finds some support in clause 82.8 which provides:
“Failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met.”
[37] Clause 82.1 provides that the “Qualification required” for appointment to Station Officer is a Diploma in Public Safety (Fire Fighting Management). The words “will be qualified”, in clause 82.6 are capable of being construed as meaning that the employee will possess the qualification required, the condition precedent, to promotion to the position of Station Officer.” 7
[29] The UFU argued that the comments made by the Full Bench above are binding on the Commission as it is currently constituted.
[30] As such, the UFU submitted that the Commission should determine this dispute by finding that Airservices has purported to appoint persons who do not hold an Advanced Diploma to Local Operations Manager positions in contravention of the Agreement and, in addition, that Airservices should comply with its obligations to ensure that only properly qualified persons with an Advanced Diploma are appointed to the role of Local Operations Manager and that the agreed standards of training are maintained.
The case for Airservices
[31] Airservices submitted that in circumstances where the role of a Local Operations Manager is not a “classification” covered by the Agreement, nor does the Agreement codify the requirements for the appointment of a Local Operations Manager, the Agreement does not 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.
[32] Airservices relied on its written submissions dated 20 January 2020, 6 February 2020, 10 August 2020, 24 August 2020 and 1 March 2021, as well as on the evidence of Ms Prothero, People Transformation and Policy Manager of Airservices (and accompanying attachments).
[33] Airservices submitted that the “progression” referred to in clause 82 of the Agreement refers only to the career progression of employees through “classifications” covered by the Agreement that are listed in subclause 82.1, and not to the progression to classifications outside of the Agreement, for example that of a Local Operations Manager. Further, Airservices contended 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.
[34] There is no qualification listed beyond the rank of Fire Commander and specifically no qualification required for appointment to the Local Operations Manager role, therefore it is Airservices submission that the application of clause 82 to a Local Operations Manager role cannot be read in nor “construed” as if it applied. In addition, it submitted that subclause 82.8 does not “defer” or “curtail” movement from a Station Officer or Fire Commander to a position above Fire Commander, in circumstances where that position is not contemplated in subclause 82.1.
[35] Despite subclause 82.7 providing that Station Officers and Fire Commanders “will be encouraged” to continue studies towards an Advanced Diploma, Airservices argued that this does not mandate study at that level or require it for progression beyond those roles.
[36] Airservices contended 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. Consequently, 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. Airservices submitted that this does not imply that it is not possible for Airservices to be satisfied that a person without an Advanced Diploma is fit for appointment to a Local Operations Manager role.
[37] Therefore, Airservices submitted that the UFU’s interpretation of clause 82 would be a “striking” and “improbable” outcome that would create a two-tier system for internal and external recruits if the parties intended to impose a hard barrier for the promotion of existing employees to the Local Operations Manager role. In circumstances where (it is conceded by the UFU) 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. Airservices argued that their interpretation is supported by the “business common sense” construction of industrial agreements required by the authorities.
[38] Airservices submitted that the word “progression” in clause 82 refers to a permanent promotion or appointment and does not apply to “acting” roles. Airservices provided evidence that no person has been substantively promoted to the position of Local Operations Manager without holding an Advanced Diploma. Since the commencement of the Agreement, nine employees have acted in Local Operations Manager roles and did not hold an Advanced Diploma at the commencement of that acting period.
[39] Airservices relied on the FCC Decision 8, that determined a person acting in a role which was not within the classification structure of their agreement was not covered by their agreement during the period of acting. Consequently, Airservices submitted that it would be inconsistent to impose a restriction on Fire Commander’s acting in a Local Operations Manager role.
[40] In their written submissions, Airservices contended that it is within their managerial prerogative to determine the qualities, experience and qualifications necessary to perform particular roles within the organisation (subject to any regulatory requirements or limitations under industrial instruments). Further, it submitted that the Commission should be reluctant to impose such a limitation in relation to a position which is not covered by the Agreement.
[41] In regards to the legislative context, the Civil Aviation Safety Regulations 1998 (CASR) and related instruments provide a framework for Airservices to determine and regulate the minimum qualifications required for each employee. In particular, regulation 139.773 of the CASR provides that an Officer in Charge must hold an Advanced Diploma that meets the standards in the Manual of Standards.
[42] Airservices submitted that there was nothing in the CASR to specify that a Local Operations Manager must hold an Advanced Diploma or that an Officer in Charge must be a Local Operations Manager. Even if the CASR requirement was relevant to the interpretation of subclause 82.7 at the time the Agreement was approved, an exemption had been issued to Airservices, on 6 June 2017, by the Civil Aviation Safety Authority providing that “[Airservices] is exempt from compliance with paragraph 139.773(1)(a) of CASR to the extent that the Officer in Charge must hold an [Advanced Diploma]”. This exemption had been in operation for over a year before the commencement of the current Agreement. Further, Airservices contended that subclause 82.7 should not be read as the implementation of CASR requirements in relation to the qualifications held by an Officer in Charge.
[43] Contextually, Airservices submitted that past practices showed that Fire Commanders have acted as Local Operations Managers frequently without Advanced Diploma’s, namely for leave/absence relief or call-out contingencies.
[44] Airservices submitted that their construction of clause 82 is supported by the drafting history of the Agreement. Airservices took the Commission to similar provisions of the Airservices Australia Certified Agreement 2002 – 2005, the Airservices Australia Certified Agreement 2005 - 2008, the Airservices Australia (Aviation Rescue Fire Fighting) Collective Agreement 2009 – 2013, and in summary, stated the following in their written submissions:
“Accordingly, it is apparent that, in all agreements from and subsequent to the 2005 Agreement, the Advanced Diploma has never been prescribed as a ‘required qualification’, the failure to achieve which could result in deferral or curtailment of progression, except in relation to the limited operational units required to attain the rank of Fire Commander in the 2005 and 2009 Agreements. By the 2013 Agreement, even this limited reference to the Advanced Diploma had been removed from the table of required qualifications. The position was not intended to be changed by the 2018 Agreement”.
[45] In relation to the observations made by the Full Bench in the appeal of this matter, Airservices submitted that they simply reflect, in the context of assessing the breadth of the concept of a “dispute”, that this encompasses disputes about (competing) constructions of the Agreement itself. In particular, Airservices rely on the following statement issued by the Full Bench at paragraph [38] of its Decision:
“All of this merely serves to illustrate that the parties are in dispute about whether the Agreement imposes any qualification preconditions on employees covered by the Agreement being promoted to a Local Operations Manager role, even though that role is not covered by the Agreement.” 9
[46] It is Airservices’ submission that the application should be dismissed as clause 82 of the Agreement, properly construed, does not mandate the qualifications required to be appointed to a Local Operations Manager, as the UFU have incorrectly interpreted.
Consideration
[47] Having considered all the submissions made by the parties and having reviewed the Agreement in the manner set out in Berri, I find the interpretation put forward by Airservices is the correct interpretation of the Agreement.
[48] I have taken into consideration the observations made by the Full Bench in the appeal decision of this matter. It is my view that these observations were made to confirm that the parties did not agree on the correct interpretation of clause 82 of the Agreement, there were arguments on both sides of the current issue in dispute, which therefore led to the Full Bench upholding the appeal.
[49] In particular, the Full Bench made the following comment at paragraph [16] of its Decision:
“…we do not propose to express our opinion on the proper construction and effect of the impugned provisions, save for touching upon them as necessary to deal with the only issue raised by this appeal.” 10
[50] The Full Bench remitted the matter to me to determine the proper construction of the provisions in dispute.
[51] As set out earlier, the question I need to determine is whether an employee covered by the Agreement who does not hold an Advanced Diploma could be appointed to the position of Local Operations Manager.
[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. The dispute is so determined.
DEPUTY PRESIDENT
Appearances:
E White of Counsel for the United Firefighters’ Union of Australia.
A Bell of Counsel for the Airservices Australia.
Hearing details:
2021
Sydney (by telephone):
March, 17.
Printed by authority of the Commonwealth Government Printer
<PR732965>
1 United Firefighters’ Union of Australia v Airservices Australia [2020] FWC 2740.
2 [2020] FWCFB 4785.
3 [2020] FWCFB 4785 at [38].
4 [2014] FWCFB 7447.
5 [2017] FWCFB 3005.
6 [2016] FCCA 2450.
7 [2020] FWCFB 4785.
8 United Firefighters’ Union of Australia v Airservices Australia [2016] FCCA 2450.
9 [2020] FWCFB 4785 at [38].
10 [2020] FWCFB 4785 at [16].
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