United Firefighters' Union of Australia v Country Fire Authority

[1997] FCA 851

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 455 of 1997

BETWEEN:

UNITED FIREFIGHTERS' UNION OF AUSTRALIA
First Applicant

ANDREW MARMION
Second Applicant

AND:

COUNTRY FIRE AUTHORITY
Respondent

JUDGE:	RYAN J
DATE OF ORDER:	29 AUGUST 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS:

1. That the injunction granted on 13 August 1997 be dissolved.

1. That liberty be reserved to the respondent to apply in respect of the undertaking as to damages given by the first applicant on 13 August 1997.

1. That the application be otherwise dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 455 of 1997

BETWEEN:

UNITED FIREFIGHTERS' UNION OF AUSTRALIA
First Applicant

ANDREW MARMION
Second Applicant

AND:

COUNTRY FIRE AUTHORITY
Respondent

JUDGE:	RYAN J
DATE:	29 AUGUST 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

There is before the Court an application for the imposition on the respondent, Country Fire Authority (“the Authority”) of a penalty pursuant to s 298U of the Workplace Relations Act 1996 (“the Act”) for conduct said to have been in contravention of s 298K of the Act. There is also a claim for an injunction restraining the Authority:

By itself its servants or agents from contravening s 298K of the Act by continuing to refuse to consider Andrew Marmion’s application for appointment as a leading firefighter at Scoresby Fire Station for the reason or reasons that include the reasons that if he were appointed to that position he would be entitled under an industrial instrument to receive no less remuneration than the total salary (inclusive of penalties) applicable to that classification under the Victorian Fire Industry Employees’ Interim Award 1993.

On 13 August 1997, after hearing an application for interlocutory relief, I ordered, upon the firstnamed applicant, the United Firefighters’ Union of Australia (“the UFU”) by its Counsel giving the usual undertaking as to damages, that the Authority be restrained until 4.15 pm on 28 August 1997 or further order from appointing any person not presently employed by the Authority to the substantive position of Leading Firefighter at the Scoresby Fire Station.

The second applicant, Mr Marmion, is a member of the UFU and has been employed by the Authority as a firefighter since 1989.  It is common ground that his employment is regulated by the Victorian Firefighting Industries’ Employees’ Interim Award 1993, (“the Award”) an Award of the Australian Industrial Relations Commission (“the Commission”) and by the Country Fire Authority/United Firefighters’ Union Firefighters and Fire Officers’ Certified Agreement 1996 (“the Certified Agreement”). 

The Certified Agreement contains the following clauses:

7.Aim of the Agreement

This Agreement outlines an integrated package of reforms that have been developed as a result of extensive negotiation between the CFA and the Union.

The Agreement sets a framework which grants wage increases in exchange for full settlement of all increases in productivity and work value as at the date of certification as well as implementation of strategies to further improve CFA productivity and provide more flexible and efficient use of CFA resources.

In addition, the Agreement aims to facilitate:

·The most effective and efficient utilisation of all CFA resources through the maintenance of a highly skilled, flexible and motivated workforce which will ensure a professional integrated fire service which delivers maximum service to the community.

·The CFA’s requirement to be able to flexibly manage resources and working arrangements based on new and changing local service delivery requirements.

·A greater emphasis on a total risk management approach which includes prevention, emergency incident control, community education and related support functions as well as enhanced standards of fire suppression.

·Multiskilling and a more consistent involvement of all employees in performing a range of tasks in line with employees’ existing skills and knowledge and obligations contained within the structural efficiency provisions of the Parent Award.

The parties to this Agreement are committed to identifying and implementing measures to improve the productivity and efficiency of the CFA during the life of this Agreement.

...

9.Staffing - New Career Fire Stations

This clause contains a number of principles related to staffing - new career fire stations.  These principles will not be implemented or determined without prior consultation with and input by the union cognisant of the CFA meeting its statutory responsibilities under the CFA Act.

Consultation will be conducted in accordance with the meaning of “Consultation” set out in Clause 23 - Definitions.

9.1From the date of certification of this Agreement, the parties support the principle of flexible resource allocation at new career fire stations.  When the CFA is staffing new career locations this will be based on local service delivery requirements as determined on a case by case basis.

The CFA will, following consultation with and input from the union, determine -

numbers of people

classification and duties of people

hours of work

rosters (and penalties)

according to local service delivery requirements, which are to be ascertained through consideration of recommendations from any interested parties including the community, career and volunteer personnel and the union.

Through consultation, consideration will be given to whether a new location requires the 10/14 roster system during the life of this Agreement.

Considering circumstances and CFA service delivery requirements at the date of certification of this Agreement, the current 10/14 roster is considered by the parties to be the only appropriate roster where 24 hour staffing is needed to meet local service delivery requirements.

9.2In particular, staffing is to be determined after considering a range of integrated factors, including but not limited to the following:

·Hazard Assessment (Structural)

·Standards of Fire Cover

·Volunteer availability/skills base

·Activity levels

·Brigade management/support

Such factors are to be considered utilising such methodologies as, for instance, is set out in Appendix A.

9.3Hours of Work and Rosters

The parties agree that the hours of work and rosters will be developed through consultation and implemented in accordance with the principles set out in Appendix C.  In addition to setting out these principles, Appendix C contains indicative rosters that may have application at future career fire stations.

The parties agree that:

(i)Rosters may be day, day/afternoon or 24 hour continuous, depending on when career staff are needed.

(ii)Rosters will include an agreed spread of hours

(iii)Either individually or collectively the indicative rosters specified in Appendix C may be utilised, or

(iv)Although the primary focus will be on the indicative rosters contained in Appendix C, an alternative roster may be developed through consultation and implemented by agreement at a new career fire station following a thorough examination of all options.

9.4Penalty Determination

In those work locations where continuous shift cover is not required, an appropriate penalty will be determined according to the level of disability incurred.  The appropriate penalty is calculated in accordance with the formula set out below.

The appropriate annualised average penalties for various levels of disability will be calculated according to the following rates:

·all afternoon shifts on a weekday attract a 15% loading

·all weekday night shifts attract a 20% loading

·all shifts on a Saturday are paid at time and a half

·all shifts on a Sunday are paid at double time

The appropriate penalty rate is calculated by determining the number of “extra” hours worked over a cycle and dividing this number by the total number of hours worked over the cycle. The number of “extra” hours worked is calculated by multiplying the number of shifts within a cycle by the number of hours within each shift by the appropriate loading for respective shifts according to the above principles.

If, due to local service delivery needs, an individual is required to work several different roster arrangements throughout a given period, the penalty payable will be determined using the same principles as above calculated on a pro-rata basis for that defined period.

All new employees employed by the CFA after certification of this agreement will enter their employment with the CFA on the understanding that penalties payable to them will be included as a component of their salary but these penalties will be determined on a case by case basis according to the disability applicable to the roster and hours they work.

9.5Impact on Existing Employees

Should the CFA be unable to meet its staffing requirements at a new career fire station (Refer Clause 23 - Definitions), the CFA will call for “expressions of interest” from within the service.

The existing employees will work the conditions applicable at the new location, but not receive less remuneration than their total salary (inclusive of penalties) applicable to the classification had the transfer/promotion occurred at a current career fire station.  This provision excludes the voluntary demotion to a lower classification than an employee’s substantive classification.

In addition the total remuneration of the employee would move in line with wage movements applicable to their substantive position prior to taking up the new position.

Only in the event that an appointment is not able to be made through this process, will the CFA utilise its “order of transfer” provisions to fill the position.

[“New Career Fire Station” is defined in these terms in cl 23 of the Certified Agreement:

New Career Fire Station -   Does not include a current career fire station as at the date of certification which is subsequently relocated from its existing location during the life of this Agreement.]

10.Staffing - Current Career Fire Stations

10.1The 10/14 roster will continue to operate at those fire stations where there is a requirement for 24 hour manning.

10.2The CFA has, following consultation with and input from the union, determined that until 1 December 1998 the minimum number of employees for current career fire stations based on current operational requirements is 288.

The parties agree that following consultation with and input from the Union, the minimum number of employees for current career fire stations will be reduced from 288 after the introduction of BEST, by a minimum of 5 and as many as 10 employees, based on Firefighters no longer being required to perform Watchroom Operator duties at Boronia Fire Station and Geelong City Fire Station.  The parties agree that such reductions in the minimum number of employees for current career fire stations will not reduce the minimum number of employees to below 278.

The CFA has, following consultation and input from the union, determined that until 1 December 1998 it will maintain the following classification mix at current career fire stations:

·110     Fire Officers (with a minimum of 38 Fire      Officer 2 positions)

·56       Leading Firefighters

·112     Firefighters

The parties agree that Scoresby Fire Station will be treated as a new career fire station, and staffing thereof will be determined in accordance with the provisions of Clause 9 of this agreement.

The CFA has determined that during the life of this agreement it will not employ any Limited Tenure Firefighters.

10.3Leave cycles of Fire Officers and Firefighters across the CFA may be aligned in order to enable maximum availability of workers for work at a particular time, providing an opportunity for additional training to take place.

...

15.Review of Hours of work and Rostering - Current Locations

...

For the period of operation of this Agreement there will be no change to the hours of work and rostering at current career fire stations unless by agreement between the parties.

...

19.Merit based selection

The parties agree to remove time criteria applying to appointment to advertised vacant positions.  Vacant positions (except for orders of transfers made by the Chief Officer) will be advertised internally, and externally where it can be demonstrated no suitable internal applicant exists.  Appointment to all advertised vacant positions will be based on merit and an assessment of whether or not an employee has the requisite skills, competence and experience required to meet the selection criteria for a vacant position. In this context, for appointment to the classifications of Fire Officer 1 and Fire Officer 2 the appointees will require five (5) years recognised and accepted service in a professional/career fire service.

Mr Marmion is currently stationed at the Authority’s Dandenong Fire Station as a Qualified Leading Firefighter and has completed the Authority’s Leading Firefighter assessment and passed the three subjects forming part of the course leading to an Associate Diploma of Applied Science (Fire Technology) necessary for appointment as a Leading Firefighter.

On 21 July 1997, the Authority advertised internally for a “Leading Firefighter - Day Work” to take up duty at the Scoresby Fire Station at a remuneration of $30,132 per annum.  The advertisement stipulated the following conditions:

The successful applicant will work a 38 hour week, Monday to Friday (Day Work), excluding Public Holidays.  The annual leave entitlement for this position will be four (4) weeks.

The successful applicant will be required to occupy the position for a two (2) year period, prior to being eligible to apply for alternative positions.

By letter dated 30 July 1997, Mr Marmion applied for the position of Leading Firefighter at Scoresby but stipulated that his application was “as per Clause 9.5” of the Certified Agreement.  That letter evoked this response dated 4 August 1997 from the Authority’s Deputy Chief Officer (Operations):

I refer to your letter dated 30 July regarding your application for the position of Leading Firefighter (Day Work) - Scoresby Fire Station.

Before consideration is given to your application for this position, I need to clarify your understanding about the applicable terms and conditions.  The terms and conditions of this vacancy are as advertised.  Your letter suggests that you are seeking the position as an “expression of interest” under Clause 9.5 of the Firefighters and Fire Officers Certified Agreement 1996.  The CFA is not seeking “expressions of interest”.  That process only arises if the CFA has been unsuccessful in filling the position either internally or externally on the basis of the conditions attaching to the position.

If a current employee successfully seeks appointment to a new position as advertised, at a new career fire station, then they will be required to accept the terms and conditions of the position at the new location.  This means they will be paid the salary and penalty payment, if applicable, for the classification, hours of work and roster worked at the new location.

Having regard for these circumstances and the content of your letter, it would be appreciated if you would confirm that your application for this position is on the basis that the terms and conditions are those as advertised.  Confirmation of your intentions in this regard by no later than close of business Wednesday 6 August 1997 would be appreciated. Should no response be received by this time, it will be assumed that you do not wish to proceed with this application.

Mr Marmion replied by letter dated 6 August 1997 which concluded:

I look forward to an interview for this position under Award conditions as per clause 9.5 of the [Certified Agreement].

On 9 August 1997 the Authority advertised in the Melbourne “Age” the position of Leading Firefighter at the Scoresby Fire Station stipulating a salary of $30,000 per annum. 

The applicants claim that the Authority was bound, before advertising the vacancy externally, to call for “expressions of interest” in the position at Scoresby or otherwise to fill that vacancy by accepting an application for appointment to it by a qualified existing employee.  On their argument, if a qualified employee expressed interest in the position, that employee was entitled to be appointed to it on terms that he or she would not receive less than the total salary (inclusive of penalties) which would have been applicable to the position had the transfer or promotion occurred at a current career fire station.  On this argument, an employee in the position of Mr Marmion would be remunerated as Leading Firefighter - Scoresby Fire Station at a total annual salary of $43,294 which is the salary (inclusive of penalties) prescribed by the Award and the Certified Agreement for a Leading Firefighter engaged as a continuous shiftworker at a current career fire station like Dandenong instead of the rate of $30,132 per annum which would otherwise be paid to a Leading Firefighter for a 38 hour week pursuant to the Award and the Certified Agreement.

It is accepted on both sides that the Certified Agreement has to be understood against the background of the Authority’s Policy for Recruitment, Selection and Appointment as set out in a manual noted as having been approved on 19 October 1993.  That manual includes these passages:

__________________________________________________

RationaleThis document outlines the policy in regard to recruitment, selection and appointment to vacant positions within the CFA.

__________________________________________________

DefinitionsFor this policy the following terms are defined:

Order of transfer is the transfer without advertisement of employees by the Chief Officer to a vacant position of similar level,

Internal advertisement is the advertising of vacant positions within the CFA through the Bulletin,

External advertisement is the advertising of vacant positions within the CFA in the press,

Employees are persons

·employed by the CFA in positions that form part of the core establishment, and

·are engaged in work in an ongoing basis, subject to satisfactory work performance.

Relative efficiency is special qualifications, fitness (including, where applicable, physical fitness), aptitude and potential to discharge the responsibilities of the position, together with merit, diligence and good conduct, and

Vacant position is

·any position which is unoccupied, or

·where the substantive occupant is about to leave the position.

__________________________________________________

PolicyIt is the policy of the CFA:

·to recruit, promote, and transfer suitably qualified employees to vacant positions solely on the basis of the relative efficiency of the applicants for a position as determined in fair and open competition,

·to advertise all vacant positions (except for order of transfers made by the Chief Officer)

·internally, and

·externally where it can be demonstrated no suitable internal applicant exists, and

·to provide for employees to lodge an appeal against a selection decision in accordance with S.74B of the CFA Act 1958.

__________________________________________________

Rules forThe following rules shall apply for positions to be advertised

Recruitment     within the CFA:

·all positions must have

·a current position description, and

·the classification level determined,

·the following positions must be advertised both internally and externally;

·Deputy Chief Officer and above, and

·Department Manager and above,

·all external advertisements require the approval of the Chairman,

·positions below the levels specified above may be advertised externally provided that there are no suitable applicants within the CFA,

·former CFA employees who have retired (as defined by ESSS Regulations) will not be eligible for re-employment, and

·applicants who have accepted a Victorian Government Voluntary Resignation Package will not be eligible for appointment within the limitation period specified within the package.

__________________________________________________

Rules for          The following rules apply when recommending the selection of

Selectiona person to a vacant position within the CFA:

·selection shall be based on merit and shall be from appropriately qualified applicants,

·only employees may be appointed to positions advertised internally,

·recommendations will be made by a selection panel comprising of two or more suitably qualified members, one of whom will be the relevant line manager or his/her nominee,

·selection panel composition will be consistent with the CFA’s EEO Program,

·selection for a position will be made against the key selection criteria,

·a written report assessing each applicant must be prepared by the selection panel, and

·the Chairperson of the selection panel must counsel all unsuccessful applicants.

__________________________________________________

Rules forThe following rules apply when appointing a new person or

appointment     employees to vacant positions within the CFA:

·new appointees must be certified medically fit by a qualified medical practitioner nominated by the CFA,

·new appointees to fire fighter positions must meet the required level of physical fitness as determined by the CFA,

·new appointees must be of satisfactory character,

·new appointees must satisfactorily complete a six month probationary period,

It seems to be generally accepted that the “Rules for Selection” and “Rules for Appointment” are mutually exclusive in the sense that the former apply only to the selection to fill a vacancy from amongst existing employees of the Authority, whereas the latter are confined to appointments from outside the service.

Counsel for the applicants submits that cl 9.5 of the Certified Agreement has to be construed as a whole and in the context provided by the rest of the document.  He points to the language of the last paragraph of cl 9.4 which reserves to the Authority the right to negotiate with new employees as to penalties appropriate to their employment at a new career fire station.  That raises the implication, so it is said, that all existing employees appointed to a new career fire station will take with them the penalties which they would have received had their transfer or promotion occurred at a current career fire station as contemplated by the second paragraph of cl 9.5.  However, that feature of the Certified Agreement does not entail the consequence that a vacancy at a new career fire station must be filled from existing employees of the Authority who apply, and are qualified, for appointment to the vacancy.  It may reflect no more than the expectation of the parties and those who drafted the Certified Agreement that no existing employee would voluntarily forego his or her existing penalty entitlements to take an appointment at a new career fire station where those entitlements would be preserved if the vacancy were filled after calling for expressions of interest or by resort to an order of transfer. 

Clause 9.1 clearly contemplates that the Authority is to have considerable flexibility in determining, after consultation with the UFU, the hours of work, rosters and penalties which are to be observed at new career fire stations.  That flexibility would be considerably compromised if the Authority were bound to appoint any qualified existing employee to a new career fire station on terms that preserved to that employee the penalties attaching to a 10/14 roster appropriate to 24 hour staffing.  Had the parties intended that the Authority should be under such an obligation, it would very likely have been expressed in a way which left no doubt that the facility to staff new career fire stations was to be subject to that overriding requirement.  This likelihood is reinforced by the presence of the last sentence of cl 15 preserving for the life of the Certified Agreement hours of work and rostering at current career fire stations unless varied by agreement between the parties.  That express preservation strongly implies that hours of work and rostering at new career fire stations are to be determined by the Authority subject only to express restrictions such as those which I consider are imported by cl 9.5 in respect of existing employees transferred to new career fire stations after a call for expressions of interests or an order of transfer.

To make good the interpretation which makes it mandatory for the Authority to fill a vacancy at a new career fire station by appointing an existing employee who is qualified and applies for it, Counsel for the applicants points to cl 19 of the Certified Agreement which is said to restrict the Authority to advertising a vacancy only “where it can be demonstrated no suitable internal applicant exists”.  The only criteria governing suitability are said to be “merit” and possession of the “requisite skills, competence and experience required to meet the selection criteria for a vacant position” stipulated in the third sentence of cl 19.  In my view there is no warrant for reading down “suitable” in that way.  The criteria listed in the third sentence of cl 19 are applicable to the filling of all advertised vacant positions whether advertised internally or externally.  That view is borne out by the concluding sentence of cl 19 which clearly contemplates the possibility of appointments as Fire Officers of persons with the requisite minimum service in a professional or career fire service other than that of the Authority.

As a matter of ordinary language and experience, the readiness or otherwise of an applicant to accept terms and conditions, especially those as to remuneration, which an employer considers should attach to a vacant position would be a significant index of his or her suitability.  Had cl 19 been intended to permit external advertisement of a vacancy only where no “appropriately qualified” internal applicant exists, it would have been easy for the Certified Agreement to have said so as the phrase “appropriately qualified” was readily to hand in the “Rules for Selection” of internal applicants in the Authority’s policy governing recruitment, selection and appointment for vacant positions.  Instead, cl 19 uses the expression “no suitable internal applicant” which mirrors the stipulation in that part of the Authority’s policy prescribing “Rules for Recruitment” applicable to both internal and external recruitment that “positions below the level specified above may be advertised externally provided that there are no suitable applicants within the CFA”.

The introductory words of cl 9.5 “Should the CFA be unable to meet its staffing requirements at a new career fire station” are obviously subject to an implied qualification.  They do not signify an inability to meet staffing requirements by any means whatsoever because the sub-clause goes on to provide for the meeting of staffing requirements by calling for expressions of interest and, as a last resort, by order of transfer.  The unstated means of meeting the Authority’s staffing requirements at a new career fire station are the only two conceivably available - appointment from within after internal advertising and recruitment from outside after external advertising.  It is only when those two means have been tried and proved unavailing that the Authority needs to resort to calling for “expressions of interest” from within the service with the possible adverse financial consequences enjoined by the first sentence of the second paragraph of cl 9.5. 

The applicants seek to rebut this interpretation by pointing to the unqualified statement in the second paragraph of the sub-clause that “The existing employees will work the conditions applicable at the new location ...”.  Had it been intended to confine existing employees entitled to preserve the penalties attaching to their former substantive position to those appointed to a new career fire station after a call for expressions of interest, so the argument went, the phrase “The existing employees” would have been appropriately qualified.  However, that argument loses much of its force when regard is had to the position, immediately after the provision for calling for expressions of interest which the sentence quoted occupies in the scheme of cl 9.5.  That collocation, in conjunction with the definite article with which the sentence commences, indicates that “The existing employees” referred to are those appointed after expressions of interest have been called for.

If the correct interpretation of cl 9.5 were not as I have just suggested, the facility to call for “expressions of interest” from within the service would represent an unnecessary step in the process of filling a vacancy.  That is so because if, as on the applicants’ argument they can, existing employees at whatever stage of the process they are appointed to a new career fire station take their current career fire station penalties and entitlements with them, there is no point in separating the calling of expressions of interest in a vacancy from the accepted first step of internally advertising the vacancy.

The applicants seek to meet this argument by contending that the call for expressions of interest is confined to those existing employees who are not appropriately qualified for the vacancy but whom the Authority is prepared to appoint “provisionally” while they attain the requisite qualifications.  The primary difficulty for this contention is that it severely restricts the class of persons from whom the expressions of interest may be called in a way not warranted by anything in the language of cl 9.5 or any other part of the Certified Agreement to which I have been taken.  The applicants point to two instances where employees of the Authority have been provisionally appointed to vacancies in the way described but there is nothing in the evidence, as I understand it, to link either of those appointments to any process of “calling for expressions of interest”.

The ordinary English meaning of the phrase “call for expressions of interest” permits it to be equated with calling for volunteers to fill a vacancy on the favourable terms preserved by the second paragraph of cl 9.5 before conscripting any employee to fill the vacancy on the same favourable terms by “order of transfer”.  To attribute that meaning to the phrase in its present context does not, I consider, render cl 9.5 logically or industrially unworkable.

On the other hand, the construction for which the applicants contend could impose a significant financial burden on the Authority by compelling it to pay the penalties attendant on the 10/14 roster required where 24 hour staffing is needed to the occupant of a position for which such a roster is concededly inappropriate.  In this context it is worth recalling the effect, discussed above, of cl 9.1 of the Certified Agreement and, in particular, the acknowledgement in that sub-clause that:

Through consultation, consideration will be given to whether a new location requires the 10/14 roster system during the life of this Agreement.

Considering circumstances and CFA service delivery requirements at the date of certification of this Agreement, the current 10/14 roster is considered by the parties to be the only appropriate roster where 24 hour staffing is needed to meet local service delivery requirements.

The Certified Agreement should only be construed as compelling the payment of a “windfall” premium to one fortunate existing employee where the language of the prescription intractably requires it.  For the reasons set out above, I have been unable to discern any such intractable requirement.

Affidavits have been filed on each side with a view to providing extrinsic evidence of preparatory drafts and statements made in the course of negotiations which led to the making of the Certified Agreement.  That extrinsic evidence, I gather from the preliminary submissions of Counsel, is by no means conceded to tend only one way.  The admissibility of significant parts of it is disputed and, even if that difficulty were overcome, it may be necessary to resolve conflicting versions of events before deciding what part of the evidence can be used to assist in the task of construction.  However, I am relieved from the need to consider that evidence because, although the language of the Certified Agreement is not free of difficulty, I have been able to arrive at the interpretation indicated in these reasons without finding any ambiguity which cannot be resolved after utilising the aids to construction to be found within the four corners of the instrument itself.

I should indicate in conclusion that, even if I be wrong in the interpretation which I have given to cl 9.5, I would not, in the circumstances of the present case, impose a penalty on the Authority. The evidence discloses that the competing contentions discussed above have been agitated between the Authority and the UFU for some months. A more appropriate vehicle for resolving the dispute would have been an application for interpretation of the Certified Agreement under s 413A of the Act or some corresponding provision of the Industrial Relations Act the application of which is preserved by the Act in relation to certified agreements made before the Act came into force.

As well, there can be no doubt that the Authority has maintained in good faith the construction of the Certified Agreement which I have found should prevail.  That good faith was demonstrated by the statement through its Counsel that it remained ready to appoint Mr Marmion to the vacancy if the applicants’ contentions were upheld.  Accordingly, I am satisfied that its decision not to appoint Mr Marmion to Scoresby was actuated solely by its view that it was entitled to look outside its existing employees for an applicant who would fill the vacancy on terms which would be less expensive than those insisted on by Mr Marmion.  His entitlement to the benefit of the Award or the Certified Agreement generally or in a particular respect played no part in the Authority’s decision;  c.p. Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156 at 179-181.

For these reasons the application must be dismissed.  The injunction granted on 13 August 1997 will be dissolved and I shall reserve liberty to the Authority to apply in respect of the undertaking as to damages given on that date.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan

Associate:

Dated:            29 August 1997

Counsel for the Applicants:	Mr W Friend
Solicitors for the Applicants:	Maurice Blackburn
Counsel for the Respondent:	Mr A Cavanough, QC with Ms J Maclean
Solicitors for the Respondent:	Corrs Chambers Westgarth
Date of Hearing:	28 August 1997
Date of Judgment:	29 August 1997