United Firefighters' Union of Australia v Airservices Australia
[2020] FWC 2740
•29 MAY 2020
| [2020] FWC 2740 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Firefighters’ Union of Australia
v
Airservices Australia
(C2019/5997)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 29 MAY 2020 |
Application to deal with a dispute regarding the application of clauses 69 and 82 of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021 – dispute not one about a matter arising under the Agreement – application dismissed.
[1] On 1 October 2019 the United Firefighters’ Union of Australia (UFU – the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021 (the Agreement) 1.
[2] In its application, the UFU stated that the dispute concerns the application of clauses 69 – Recruitment and selection and 82 – Progression of the Agreement, though it did not address clause 69 in its submissions. In short, the dispute concerns whether Airservices Australia (the Respondent) can appoint persons who do not hold an Advanced Diploma in Public Safety (Fire Fighting Management) (Advanced Diploma) to the position of Local Operations Manager (LOM). Specifically, the UFU stated in its application that:
“The Union is of the opinion that under the workplace Instrument (EA) it is very clear that no one can be promoted into the Local Operations Manager LOM positions without first holding the Advanced Diploma and completing all of the competency units.” 2
[3] The application was the subject of a conference before the Fair Work Commission (the Commission) on 25 November 2019 which failed to resolve the dispute.
[4] The application was heard on 6 February 2020. At the hearing, Mr Eugene White of Counsel appeared with permission for the UFU, while Mr Andrew Bell of Counsel appeared with permission for the Respondent.
[5] Evidence for the UFU was given by Mr Mark von Nida, Branch Secretary of the UFU’s Aviation Branch. For the Respondent, evidence was given by Ms Philippa Prothero, the Respondent’s People Transformation and Policy Manager. Neither Mr von Nida nor Ms Prothero were required for cross-examination.
[6] At the hearing, the Commission put to the parties that the questions to be determined were:
1. Whether the dispute was “about a matter arising” under the Agreement as required by clause 20.1 of the Agreement in circumstances where LOMs are not covered by the Agreement?
and
2. If the answer to the above question is yes, does clause 82 of the Agreement require an employee to hold an Advanced Diploma in order to be promoted to the position of LOM?
[7] In response, the UFU stated that it would frame the second question differently, i.e. does clause 82 of the Agreement require the employees who are covered by it to have qualifications in order to move beyond their current position.
[8] For the reasons set out below, I find that I find that the dispute is not one about a matter arising under the Agreement in circumstances where, based on the plain and ordinary meaning of clause 82 of the Agreement, the Agreement does not mandate the qualifications required for appointment to the position of LOM. Accordingly, the Commission has no jurisdiction to deal with the dispute and the UFU’s application must be dismissed.
The Agreement provisions
[9] The relevant clauses of the Agreement are set out below.
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) …
(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 …
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 …
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),including Certificate III modules appropriate to the LSC requirements | 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 Office | 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 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
…
83.7 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 Applicant’s case
[10] The UFU submitted inter alia that clause 82 of the Agreement set out how firefighters were to progress through the classifications, adding that the clause provided for progression through the various classifications dependent upon the achievement of the particular qualifications and minimum time-based criteria set out in the table at clause 82.1. The UFU stated that clause 82.7 of the Agreement provides that Station Officers and Fire Commanders holding specific competencies would qualify for further promotion, with clause 82.8 operating on the progression of those employed in the classifications specified in clause 82.1 of the Agreement.
[11] The UFU noted that the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri) 3considered and set out the principles to be applied to the interpretation of agreements.
[12] Drawing on Principle 1 in Berri, the UFU contended that the ordinary meaning of the words in the Agreement were to the effect that persons covered by the Agreement would only be qualified for promotion to positions above Fire Commander once they had obtained an Advanced Diploma. The UFU further contended that clause 82 of the Agreement was prescriptive in its provisions regarding progression through the various classifications and the consequences of not achieving the requisite public safety training qualifications. The UFU also alluded to the Respondent’s reliance on the exemption to the Civil Aviation Safety Regulations 1998 (the CASRs) granted by the Civil Aviation Safety Authority on 6 June 2017 (see paragraph [24] below), submitting that the exemption was not incorporated into the Agreement. Specifically, the UFU contended that a plain reading of the words in clause 82 was that there was no ambiguity, adding that the effect was that the Respondent was precluded from promoting to positions above Fire Commander persons who did not hold an Advanced Diploma.
[13] As to the remaining principles in Berri, the UFU submitted inter alia that:
• clause 82 was consistent with principles 2-9, adding in respect of principle 9 that there were no surrounding circumstances inconsistent with or in conflict with or which contradicted the plain language of the Agreement;
• with regard to principles 10-12, were the Commission to conclude that the Agreement was ambiguous or susceptible to more than one meaning, the evidence regarding the surrounding circumstances of the Agreement supported its contention;
• the surrounding circumstances included the provisions of the Airservices Australia Enterprise Award 2016 4 which defined a Fire Commander as “an employee who has successfully completed all competency units of an Advanced Diploma and is appointed to the classification of Fire Commander”5 and predecessor agreements dating back to 2002;
• the surrounding circumstances supported its interpretation of the Agreement despite the cautious approach identified in principle 13 and involved no violence to the language of clause 82 or a rewriting of or disregard for the provision as per principle 14; and
• there was no post-Agreement conduct relevant to the interpretation of the Agreement (principle 15).
[14] The UFU submitted that the Commission should determine the dispute by finding that in so far as the Respondent had purported to appoint persons who do not hold an Advanced Diploma to LOM positions that such appointments were in breach of the Agreement and that the Respondent should make no further appointments of persons who do not hold an Advanced Diploma to LOM positions.
[15] Key aspects of the UFU’s reply submissions included that:
• whether or not the position of LOM was covered by the Agreement was irrelevant as clause 82 both regulated the progression of and described the qualifications for further progression of persons up to and including Fire Commanders;
• it did not contend that the Agreement regulated employment above the position of Fire Commander but rather that it regulated and conditioned the qualifications to be held by classifications up to Fire Commander for progression above the classification currently held or beyond the Fire Commander classification;
• clause 82.1 of the Agreement spoke in mandatory terms, adding that the obvious purpose of the provision was to provide for an ordered and structured progression upon obtaining of appropriate qualifications;
• there was no language in clause 82 which would permit progression other than by attaining the appropriate qualifications;
• clause 82.7 of the Agreement, when read in conjunction with clause 82.8, operated as a limit on the capacity of a Fire Commander to progress to positions above that rank;
• the Respondent’s contention that clause 82.8 was limited to progression up to and including the Fire Commander rank was flawed; and
• the Respondent’s contention that the dispute was not a matter arising under the Agreement as it related to LOM’s was misguided.
[16] In its oral submissions the UFU relied on its written submissions and contended inter alia that:
• the Agreement established a blanket prohibition on employees without an Advanced Diploma being promoted, either on a substantive or acting basis, to the position of LOM;
• the table in Clause 82.1 of the Agreement did not refer to LOMs;
• clauses 82.2 to 82.7 dealt with progression and were operative on the person holding the particular rank specified in the relevant clause, e.g. clause 82.4 was operative on AFF2 employees, with this being a common denominator in each of the clauses;
• the subject of clause 82.7 of the Agreement were Station Officers and Fire Commanders, with the reference to “employees” in the second sentence of the clause meaning all employees covered by the Agreement;
• the second sentence of clause 82.7 specified the qualification of those persons covered by the Agreement, adding that there could be no doubt about that;
• clause 82.8 looked at the scheme encompassed in clause 82 operative on the employees who had to progress through the level of training and gain the required level of experience, adding that if within clause 82.7 employees had qualified for promotion then so be it and that it was the qualification of the employees which was clearly the object operative on the subject of each of the clauses;
• the decision in United Firefighters’ Union of Australia v Airservices (UFU v ASA) 6relied on by the Respondent was not on point as it dealt with a completely different matter;
• clause 82 had a long history as shown by Exhibit 4; 7
• at all relevant times the progression clauses in the relevant enterprise agreement conformed with and was mindful of the CASRs and Manual of Standards (MOS) 8, highlighting in particular Section 20.1 of Chapter 20 of the MOS9 and that the CASRs mandate that an Officer in Charge of Category 6 and above airports must have an Advanced Diploma;
• clause 83.7 of the Agreement refers to Fire Commanders and LOMs;
• clause 82 of the Agreement and the equivalent clause in predecessor agreements were to be understood in the context of and against the mandatory requirements of the CASRs and MOS, positing that there was no dispute as to the meaning of the predecessor clauses;
• in each successive agreement up to and including the Agreement, clause 82 (or its equivalent) had in effect been re-enacted in almost identical terms;
• the Respondent did not seek to vary clause 82 to permit what was otherwise permissible by the June 2017 exemption;
• the failure of the parties to vary what has been a standard operating provision to reflect the di minimis position did not impact on the proper interpretation given the long legislative history and the analogue provisions in the various predecessor agreements;
• one did not interpret an agreement having regard to those who it did not cover or having regard to matters it did not deal with;
• there were no limiting or exclusionary words in clause 82.1 such that it limited the operation of the other elements of clause 82;
• it was unnecessary for the word “only” to be read into clause 82.7 as the Respondent contended was required by the UFU’s interpretation because of the words of clause 82.8; and
• the Respondent’s contention that progression occurred only within the meaning of clause 82.1 of the Agreement went against the clear words in clauses 82.6 and 82.7, adding that the words “will be qualified” in clause 82.7 vested a status in the Fire Commander classification upon attainment of those skills and qualifications specified in the clause.
[17] Mr von Nida’s evidence 10 was that he was aware that at least six firefighters had been promoted to positions of LOMs without an Advanced Diploma as required by the Agreement and predecessor agreements. Attached to Mr von Nida’s second witness statement were among other things several documents/correspondence relating to the Advanced Diploma and the issue of whether it was a pre-requisite for appointment as a LOM.
The Respondent’s case
[18] In summary, the Respondent submitted that the UFU’s application should be dismissed and the Commission should not make any order because:
• the UFU sought to mandate that LOMs could only operate in that role if they held an Advanced Diploma;
• LOMs were not regulated by the Agreement as it only applied to the classifications listed in clause 87 (which only referred to classifications below the rank of LOM);
• clause 82 of the Agreement had no application to LOMs recruited externally, meaning that the UFU's interpretation of the provision would result in employees under the Agreement being disadvantaged;
• clause 82 dealt with progression through classifications which did not include LOMs, highlighting that there was no express reference in the provision to LOMs being appointed only if they held an Advanced Diploma;
• the UFU's position required express words to be read into the Agreement or for the Agreement to be construed as if that was the effect, adding that such an approach should be rejected; and
• the UFU's position was inconsistent with the legislative and regulatory framework within which the Respondent operated.
[19] The Respondent posited that the plain or ordinary meaning of clause 82.7 was that Fire Commanders and Station Officers, on completing an Advanced Diploma, possessed an academic certification which established that they were fit to perform a position above the Fire Commander classification. In support of that contention the Respondent drew on the definition of the word “qualified” in the Macquarie Dictionary which is as follows:
“adjective 1. possessed of qualities or accomplishments which fit one for some function or office.”
[20] The Respondent further posited that there was nothing on the face of clause 82.7 to indicate among other things that holding an Advanced Diploma was the only method by which a Fire Commander or Station Officer could establish that he or she was fit or eligible to be considered for promotion. Similarly, the clause did not indicate that the parties intended to go further than simply agreeing that fitness for promotion may be established via the completion of an Advanced Diploma by regulating the actual appointment process itself in the manner contended by the UFU.
[21] Other key aspects of the Respondent’s submissions included that:
• the UFU’s contention that clauses 82.7 and 82.8 of the Agreement imposed a limitation on who could be appointed as a LOM required the Commission to read the provisions such that they imposed a mandatory pre-condition to selection for that role;
• the UFU’s contention in this regard was inconsistent with the text of clause 82, other clauses of the Agreement (including clauses 4, 8, 9, 38, 69 and 83) and the relevant legislative context;
• the Agreement did not cover LOMs as the position of LOM was not listed in clause 87 of the Agreement;
• it was clear from the text of clause 82.1 that an Advanced Diploma was not a required qualification for the purposes of clause 82, highlighting that clause 82.7 did not describe the Advanced Diploma as “required” for promotion;
• the ordinary meaning of clause 82.8 was clear – progression through the classifications listed in the table at clause 82.1 will be deferred or curtailed if an employee failed to achieve the qualifications required of the relevant classification listed in the table;
• there was no ambiguity regarding the meaning of clauses 82.7 and 82.8 of the Agreement warranting recourse by the Commission to the surrounding circumstances;
• the dispute related to the appointment of employees to a classification that was not covered by the Agreement;
• a matter could not be a matter arising under the Agreement for the purposes of clause 20.1 of the Agreement if it was not a matter pertaining for the purposes of s.172(1)(a) of the Act;
• as the appointment of employees to a classification not covered by the Agreement was not a “matter pertaining” to the relationship between the Respondent and employees who are covered by the Agreement, the Commission should find that it did not have jurisdiction to hear the matter; and
• the UFU’s application should be dismissed.
[22] In its submissions that Respondent also set out the legislative context in which the Agreement operates, adding that it further supported its position. Specifically, the Respondent submitted that:
• the Commission should reject the UFU’s submission that clause 82 was intended to provide for its obligations under the CASRs, adding that if the parties had intended that to be the case the clause would contain words to that effect;
• the clause did not include words to the effect that clause 82 was intended to provide for its obligations under the CASRs;
• the CASRs were not incorporated into the Agreement;
• the mandatory qualifications which appear in the table in clause 82.1 of the Agreement do not appear in the CASRs; and
• the CASRs do not deal with the assignment of classifications or ranks or the qualifications required to attain those ranks, adding that this was a matter for it to determine.
[23] By way of background, paragraph 139.773 of the CASRs provides that:
“139.773 Officer in charge
(1) An ARFFS provider must appoint, as officer in charge of ARFFS operations for an aerodrome, a person who is based at the aerodrome and who holds:
(a) for an aerodrome categorised as Category 6 or above – an AFC Advanced Diploma that meets the standards in the Manual of Standards; or
(b) for an aerodrome categorised as Category 5 or below – an AFC Diploma that meets the standards in the Manual of Standards.
(2) In paragraphs (1)(a) and (b):
AFC means Australian Fire Competencies.”
[24] On 6 June 2017 a delegate of the Civil Aviation Safety Authority issued an “Exemption and direction” in respect of paragraph 139.773 of the CASR which provides that:
“3 Exemption
(1) Subject to the condition mentioned in subsection (2), AA [i.e. Airservices Australia] is exempt from compliance with paragraph 139.773 (1) (a) of CASR to the extent that the officer in charge must hold an AFC Advanced Diploma that meets the standards in the Manual of Standards (MOS) – Subpart 139.H.
(2) It is a condition on the exemption that AA must ensure that the officer in charge holds a minimum of the prescribed Diploma qualification and has successfully completed the prescribed ARFFS training.” 11
[25] The exemption is to be repealed at the end of 31 May 2020. 12
[26] With regard to the legislative context, the Respondent also noted in its submissions that there was nothing in the CASRs to specify that an officer in charge must be a LOM or that a LOM must hold an Advanced Diploma. The Respondent further submitted that even if the CASRs requirement was relevant to the interpretation of clause 82.7 at the time the Agreement was approved by employees the exemption had been in operation for over a year. 13
[27] The Respondent referred to several authorities in its submissions, including the decision in UFU v ASA.
[28] In its oral submissions the Respondent relied on its written submissions, contending among other things that:
• it was not disputed that LOMs were not covered by the Agreement;
• it agreed the starting point in terms of interpreting the Agreement was the text of the Agreement;
• clause 82 of the Agreement dealt with the issue of progression;
• clause 82.1 was where the dispute could start and finish as the table in the clause made no mention of either the Advanced Diploma or LOMs;
• the words “will be qualified for promotion” in clause 82.7 did not establish a threshold requirement for promotion unlike clauses 82.3 and 82.4 of the Agreement which both provide that employees “will progress” to the next classification level;
• the reference in clause 82.8 to “the required public safety training qualifications and competencies” was a reference to the requirements specified in the table in clause 82.1 of the Agreement;
• clause 12.7 of Schedule C of the Airservices Australia Certified Agreement 2002-2005 14referred to higher classifications holding an Advanced Diploma15, however the relevant words in that regard were expressly removed from subsequent agreements;
• the UFU was writing words into clause 82.1 of the Agreement;
• the words “will be qualified for promotion” in clauses 82.6 and 82.7 of the Agreement did not involve a mandatory direction given the very clear position set out in clause 82.1; and
• clause 82.8 was directed at progression within the classifications in the Agreement not about progression to roles outside of the Agreement.
[29] Ms Prothero’s evidence 16 was that LOMs were the most senior position at each airport at which the Respondent provided aviation rescue firefighting services, adding that there was one LOM at each airport. Attached to Ms Prothero’s witness statement was a table17 which indicated that there were four persons who had been appointed to acting LOM positions who did not have an Advanced Diploma. The periods of acting ranged from around three weeks up to almost 12 months. Also attached to Ms Prothero’s witness statement were extracts from various versions of the Respondent’s Operations Manual – Part 139H.18
Consideration of the issues
[30] The Full Court in WorkPac Pty Ltd v Skene (WorkPac) 19 summarised the principles applicable to the interpretation of enterprise agreements as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose … ”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 20
[31] The principles relating to the interpretation of enterprise agreements were also set out in Berri. The principles are set out below:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 21
[32] As noted in both WorkPac and Berri the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose, with the Full Bench in Berri stating that context might appear from the text of the agreement viewed as a whole, the disputed provision’s place and arrangement in the agreement and/or the legislative context under which the agreement was made and in which it operates. With particular regard to context and purpose of clause 82 of the Agreement, I note that:
• it was not disputed that LOMs are not covered by the Agreement;
• while the term LOMs appears in several provisions in the Agreement, i.e. clause 21 of the Agreement which deals with hours of work, clause 37.3 of the Agreement which deals with overtime meal allowance and clause 83.7 which concerns work level descriptors, clause 82 of the Agreement makes no reference whatsoever to LOMs;
• clause 82 of the Agreement appears in that section of the Agreement dealing with classifications and rates of pay;
• clause 82.1 summarises in tabular form the requirements for progression through the classifications covered by the Agreement, i.e. Recruit through to Fire Commander, setting out the required qualifications and service requirements for each classification level up to Fire Commander;
• clauses 82.2 to 82.6 provide further details regarding the basis on which employees move from one classification to the next;
• clause 82.7 does not mandate an Advanced Diploma as a pre-requisite for movement beyond the Fire Commander classification but rather provides that on “successful completion of all competency units employees will be qualified for promotion to positions above Fire Commander”;
• clause 82.8 refers to “the required public safety training qualifications and competencies” (underlining added);
• clause 83.7 makes no mention of the qualifications and skills required by a Fire Commander but rather provides a very broad outline of the duties/responsibilities which a Fire Commander may be required to undertake;
• clause 83.7 provides that a Fire Commander may be responsible as the LOM at category 5 fire stations;
• clause 8.1 of the Agreement provides guidance as to the legislative context within which the Agreement operates – clause 8.1 provides as follows:
“8.1 The parties to this Agreement recognise that Airservices is obliged to continuously provide safe and efficient airport firefighting services in accordance with the provisions of the Air Services Act 1995 (Cth) and Civil Aviation Act 1998 (Cth) and …”;
• the CASRs are made under that Civil Aviation Safety Act 1988 referred to in clause 8.1 of the Agreement;
• paragraph 139.773 of the CASRs requires that an officer in charge of an aerodrome categorised as Category 6 or above hold an Advanced Diploma; and
• the Respondent is exempted from this requirement until the end of 31 May 2020 as a result of the exemption made by the Civil Aviation Safety Authority on 6 June 2017.
[33] As previously mentioned, the UFU contended that the effect of clause 82 of the Agreement was that the Respondent was precluded from promoting to positions above Fire Commander persons who did not hold an Advanced Diploma. However, that interpretation is not supported by the ordinary meaning of the words of clause 82 which do not specify the qualifications and service required for appointment to classifications not covered by the Agreement. Put another way, clause 82 only sets out what is required in the way of qualifications and service for progression through those classifications covered by the Agreement, i.e. Recruit through to Fire Commander.
[34] My view in this regard is fortified by the following observation by Judge Jones in UFU v ASA:
“103. Nor do I accept that the provisions of sub-cls. 5.2.9 and 5.4.7 of the Agreement assist the Applicant. Properly read each subclause is peripheral to the classification structure that the Agreement is intended to cover. Subclause 5.2.9 of the Agreement simply provides for when a Fire Commander would be qualified for promotion to a classification of Senior Fire Commander. Subclause 5.4.7 of the Agreement merely states that a Fire Commander will be responsible to the Fire Station Manager. The fact that these two subclauses referred to classifications not identified in Attachment 1 of the Agreement is not a persuasive reason for departing from the analysis in [99] to [101] above.” 22 (Underlining added)
[35] By way of background, UFU v ASA concerned a dispute regarding several aspects of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017. 23 Further, clauses 5.2.9 and 5.4.7 referred to in the above extract are the equivalent clauses to clause 82.7 and 83.7 in the Agreement.
[36] The UFU’s interpretation of clause 82.7 is not supported by clause 83.7 of the Agreement. Specifically, clause 83.7 provides that a Fire Commander may be responsible as the LOM at category 5 fire stations yet makes no mention of the Fire Commander holding an Advanced Diploma. Further, the UFU’s interpretation requires clause 82.7 to be read such that it provides “to be eligible for promotion to positions above Fire Commander an employee must hold an Advanced Diploma”. This effectively entails a rewriting of the provision which is inconsistent with principle 2 in Berri.
[37] As previously mentioned, clause 82 does not mandate the qualifications required for appointment as a LOM. Rather, based on the material before the Commission, it appears that it is the CASRs which indirectly mandate the qualifications required for appointment as a LOM. While the CASRs and MOS both use the term “officer in charge of ARFFS operations for an aerodrome”, Ms Prothero’s evidence that LOMs are the most senior position at each airport at which the Respondent provided aviation rescue firefighting services supports a conclusion that the officer in charge is a LOM. Accordingly, the exemption to paragraph 139.773(1)(a) of the CASRs made by the Civil Aviation Safety Authority on 6 June 2017 means that until the exemption is repealed at the end of 31 May 2020 an “officer in charge of ARFFS operations for an aerodrome” is not required to hold an Advanced Diploma. Significantly, that exemption was made over 12 months prior to the Agreement commencing operation on 7 December 2018. The exemption is therefore an important part of the legislative context under which the Agreement was made and in which it operates.
[38] Having regard to the above analysis, I am satisfied that the Agreement has a plain meaning. Further, the analysis does not support a finding that a dispute about the qualifications required to be appointed to the position of LOM is a dispute about a matter arising under the Agreement.
[39] Against that background, the answer to the two questions to be determined by the Commission in this matter:
1. Whether the dispute “about a matter arising” under the Agreement as required by clause 20.1 of the Agreement in circumstances where LOMs are not covered by the Agreement?
No in circumstances where the Agreement does not mandate the qualifications required for appointment to the position of LOM.
and
2. If the answer to the above question is yes, does clause 82 of the Agreement require an employee to hold an Advanced Diploma in order to be promoted to the position of LOM?
Given the answer to 1 above, it is not necessary to determine this question.
Conclusion
[40] For all the above reasons, I find that in circumstances where, based on the plain and ordinary meaning of clause 82 of the Agreement, the Agreement does not mandate the qualifications required for appointment to the position of LOM the dispute is not one about a matter arising under the Agreement. Accordingly, the Commission has no jurisdiction to deal with the dispute and the UFU’s application must be dismissed. An Order to that effect will be issued in conjunction with this decision.
Appearances:
E. White of Counselfor the Applicant.
A. Bell of Counselfor the Respondent.
Hearing details:
Canberra.
2020
February 6.
Printed by authority of the Commonwealth Government Printer
<PR719647>
1 AE500944
2 Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure at point 3 of Question 2.1
3 [2017] FWCFB 3005
4 MA000141
5 Ibid at clause A.7.8 of Schedule A
6 [2016] FCCA 2450
7 Exhibit 4 comprised copies of the equivalent provisions to clause 82 of the Agreement from the Airservices Australia Certified Agreement 2002-2005 [AG817191], the Airservices Australia Certified Agreement 2005-2008 [AG844618], the Airservices Australia (Aviation Rescue and Fire Fighting) Collective Agreement 2009-2013 [AC322035]and the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017 [AE401293].
8 The MOS is a disallowable instrument issued by the Civil Aviation Safety Authority. Paragraph 1.1.1.3 of Chapter 1 of the MOS states that “[s]ubpart 139.H of the Civil Aviation Safety Regulations 1998 (CASRs) sets out general standards with which as ARFFS must comply. The MOS sets out the detailed requirements, as authorised by the CASRs.”
9 Paragraphs 20.1.1.1(a) and 20.1.1.2(a) both provide that Officers in Charge of ARFFS operations at particular aerodromes must be a person who holds a minimum qualification of an “ARFFS AFC Advanced Diploma).
10 Exhibits 1 and 2
11 CASA EX60/17
12 Ibid at paragraph 5
13 The Agreement commenced operation on 7 December 2018 – see [2018] FWCA 7336
14 AG817191
15 Clause 12.7 of Schedule C provides that “Regional Development Officer (AF04) - The RDO will hold the qualification of Advanced Diploma in Firefighting Management.”
16 Exhibit 5
17 Ibid at Annexure “PP-6”
18 Ibid at Annexures “PP-3” to “PP-5”
19 [2018] FCAFC 131
20 [2018] FCAFC 131 at [197]
21 [2017] FWCFB 3005 at [114]
22 [2016] FCCA 2450 at 103
23 AE401293
3