United Firefighters' Union of Australia v Emergency Services Telecommunications Authority t/a Esta 000
[2018] FWCFB 5624
•24 AUGUST 2018
| [2018] FWCFB 5624 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 Appeal of decisions
United Firefighters’ Union of Australia
v
Emergency Services Telecommunications Authority t/a ESTA 000
(C2018/4259)
VICE PRESIDENT HATCHER | MELBOURNE , 24 AUGUST 2018 |
Appeal against decision ([2018] FWC 4351) of Commissioner Bissett at Darwin on 1 August 2018 in matter number C2018/1895 - construction of agreement – no error – permission to appeal refused
Introduction and background
[1] The United Firefighters’ Union of Australia (UFU) has lodged an appeal, for which permission is required, from a decision of Commissioner Bissett issued on 1 August 2018 (Decision) 1 concerning a dispute under the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement (Agreement).2
[2] The dispute relates to a decision of the Emergency Services Telecommunications Authority (ESTA) to offer training to fire call-takers at its Ballarat State Emergency Control Centre (BALSECC) that would enable them to be appointed to the position of fire dispatcher. There are four fire dispatcher positions that ESTA wishes to fill. Those fire dispatchers will be required to work a ‘4-on, 4-off’ roster. Preparedness to work in accordance with this roster is a condition of the offer of training and appointment to the position of fire dispatcher. This is the source of the present controversy. While some fire call-takers currently work a ‘4-on, 4-off’ roster, others work a ‘4-on, 5-off’ roster and do not wish to move to a ‘4-on, 4-off’ roster. The UFU considers that ESTA’s requirement in this regard is incompatible with its obligations under the Agreement.
[3] On 5 March 2018, Mr Alex Williams, a UFU delegate, notified ESTA of a dispute in relation to the requirement to work a ‘4-on, 4-off’ roster at the completion of fire dispatcher training. The dispute was raised under and progressed through the disputes procedure in clause 49 of the Agreement. The matter remained unresolved. ESTA referred the dispute to the Commission for arbitration in order to determine the matter, in accordance with clause 49.2 of the Agreement and s 739 of the Fair Work Act 2009 (FW Act).
[4] There was some debate before the Commissioner about how the dispute should be characterised. ESTA’s position was that the dispute concerned whether it was prevented by the Agreement from offering fire call-takers at Ballarat the opportunity to undergo training as a fire dispatcher on condition that the relevant dispatcher positions would be rostered on a ‘4-on, 4-off’ basis. The UFU cast the dispute by reference to what it contended was ESTA’s failure to comply with particular provisions in the Agreement, namely clause 8.1, which concerns equal employment opportunity, clauses 20.3 and 20.4, which relate to employee training and development, and clause 27.5, which deals with the introduction of major change.
[5] In the Decision, the Commissioner concluded that the dispute before her was whether ESTA was acting contrary to the Agreement in offering fire dispatcher training on the basis that successful dispatchers would be required to work a ‘4-on, 4-off’ roster. 3 Having considered the clauses in the Agreement referred to above, the Commissioner determined that the answer to this question was ‘no’.4
[6] On 2 August 2018, the UFU lodged its notice of appeal and sought a stay of the Commissioner’s decision. At the hearing of the stay application before Vice President Hatcher, the parties agreed that, without prejudice to the outcome of the appeal, ESTA would accept applications from any person at Ballarat to undertake the fire dispatcher training until close of business on 23 August 2018, with no condition that the successful applicants or course participants will be offered work in the new role only on a ‘4-on, 4-off’ roster.
[7] It should be noted that ESTA requested the Commissioner to hear and determine its application with urgency, as it wishes to have the four new fire dispatchers trained and operational prior to the commencement of the fire season in early December. For the same reason, the parties also sought to have the appeal listed for an expedited hearing. We have accommodated this request and sought to determine the appeal expeditiously. Our reasons for decision are correspondingly succinct.
Consideration
[8] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 Generally an appeal is not as of right and may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. Permission to appeal may otherwise be granted on discretionary grounds.
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 8
[10] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9
[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 10 However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[12] The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below. In the present case, the Commissioner was resolving a dispute that involved the interpretation of an enterprise agreement. The task of determining the proper interpretation of the Agreement did not involve the exercise of discretion. Accordingly, the Full Bench must determine whether the interpretation of the Agreement adopted by the Commissioner was correct.11 It must also determine whether there was any error in the application of the relevant provisions of the Agreement, properly interpreted, to the facts of the case.
[13] We do not consider that the UFU has been able to demonstrate any seriously arguable case of appealable error in the Decision.
[14] The UFU’s first, second and third grounds of appeal contend that the Commissioner erred in concluding that ESTA had not contravened clause 8.1 of the Agreement. This provision reads as follows:
8. Equal Employment Opportunity/Harassment
8.1 ESTA is committed to the principles of Equal Opportunity in employment and its actions in this regard will be governed by the spirit and the intent of the relevant Federal and State legislation. ESTA is also committed to increasing the skill and competency levels of all Employees and to providing equal opportunity for promotion and access to career path progression.
8.2 ESTA will not tolerate discriminatory behaviour, harassment or bullying and appropriate action will be taken if they are found to occur. Comprehensive policies and procedures are in place and will be maintained to address these issues and provide appropriate protection for Employees.
[15] The UFU submitted that the expression ‘equal opportunity’ used in the second sentence was not to be read as confined to anti-discrimination concepts but rather was to be given a broad interpretation based on the ordinary meaning of the words used. We are inclined against that interpretation, having regard to the following matters:
(1) The heading to clause 8, ‘Equal Employment Opportunity/Harassment’, suggests that the subject matter of the clause is concerned with anti-discrimination.
(2) The context provided by the first sentence of clause 8.1 and the entirety of clause 8.2 are strong indicators that the provision as a whole is concerned with anti-discrimination.
(3) It is a principle of interpretation of legal instruments that, unless the context dictates otherwise, where the same expression is used a number of times, it is presumed that it bears the same meaning. 12 The position here would seem to us to be a fortiori where the expression ‘equal opportunity’ is used in successive sentences within a single provision. We do not consider that the fact that the expression is capitalised in the first sentence but not in the sentence signals an intention that it bear different meanings.
[16] Even if we were to accept the UFU’s broad interpretation of the second sentence of clause 8.1, we do not consider that the appeal has established any denial of an ‘equal opportunity’ for promotion and access to career path progression via training for the fire dispatcher role. The UFU did not direct us to any evidence adduced before the Commissioner which established that any employee currently working a ‘4-on 5-off’ roster was, because of his or her personal circumstances, actually prevented from applying for training for a fire dispatcher role with a ‘4-on, 4-off’ roster. That an employee might have a personal preference not to work a ‘4-on, 4-off’ roster is not, we consider, sufficient to establish that the employee does not have an equal opportunity to apply for a position that requires such a roster.
[17] Accordingly we agree with the Commissioner’s conclusion that clause 8.1 does not, in the circumstances, constitute a bar to ESTA offering fire dispatcher training on the basis of the condition of acceptance of a ‘4-on, 4-off’ roster.
[18] The UFU’s fourth to seventh grounds of appeal contend that the Commissioner erred by concluding that ESTA had not contravened clauses 20.3 and 20.4 of the Agreement. These clauses read as follows:
20. Employee Development
. . .
20.3 Employees are entitled to undertake training to qualify or progress towards qualifying for advancement to a higher classification covered by this Agreement, subject to training resource capacity, ESTA's assessment of the Employee's suitability (i.e. their current performance would need to be satisfactory and they would need to meet prescribed entry level requirements) and the Employee's availability. An Employee's temporary unavailability, because of operational or other reasons, will only impact on the timing of the training. Such training will occur in paid time and at ESTA's expense.
20.4 Selection for training will be on an equitable basis, subject to the provisions of sub clause 20.3 above…
[19] It is clear that the entitlement to training conferred by the clause (however characterised) is subject to, relevantly, the employee’s suitability, which includes that the employee ‘would need to meet prescribed entry level requirements’. Read in context, it appears to us that this refers to the employer’s requirements to enter the position to which the relevant training relates. Although neither party in the appeal embraced this proposition, we were not taken to anything in the Agreement which would deny this interpretation of the words used. It is not in dispute that it was ESTA’s requirement that the fire dispatcher roles to which the relevant training related be worked on the basis of a ‘4-on, 4-off’ roster. Accordingly we consider that this was an entry level requirement for the fire dispatcher position, and any employee who was not prepared to work a ‘4-on, 4-off’ roster in that position could not be considered ‘suitable’. This rendered the entitlement to the training inapplicable.
[20] In addition, and in any event, clause 20.4 makes it clear that the entitlement to training in clause 20.3 may be subject to an equitable selection process. This necessarily implies that, notwithstanding the apparent entitlement conferred by clause 20.3, ESTA may select suitable candidates for training positions where there is a limitation on the availability of such positions, providing it does so equitably. We have already noted that the process adopted by ESTA in selecting who could take up training for fire dispatcher positions did not deny anyone an equal opportunity for access to such training, and for the same reasons we consider that the process was equitable. A selection on the basis of an employee’s readiness to comply with a reasonable operational requirement for the position was, we consider, plainly equitable, and nothing has been put to us by the UFU to persuade us that there was any inequity involved in the application of the ‘4-on, 4-off’ roster requirement.
[21] We therefore agree with the Commissioner’s conclusion that ESTA’s offer of fire dispatcher training on the basis of the ‘4-on, 4-off roster’ requirement was not contrary to clause 20.3 or 20.4 of the Agreement.
[22] The UFU made reference in its submission to clauses 8.1, 20.3 and 20.4 having to be read as subject to clause 27.5. Clause 27.5 requires majority agreement on the part of employees for any ‘substantial variation to shift rosters’. At paragraph [88] of the Decision, the Commissioner concluded that clause 27.5 did not impede the offer of training by ESTA on the basis earlier described, and in doing so referred to her earlier findings that there was no standard roster across the workforce and that the fire dispatcher positions on offer were those which ESTA required to be filled for operational reasons. It was not a ground of the UFU’s appeal that this conclusion or the findings supporting it were in error, and consequently we do not consider that clause 27.5 is relevant to the determination of this appeal. We further note that there is a separate dispute matter before the Commission concerning the larger issue as to whether ESTA’s steps over some years to require new and vacant positions to operate on a ‘4-on, 4-off’ roster contravenes clause 27.5. In that circumstance we do not propose to venture any view of our own in relation to clause 27.5.
[23] For the reasons given, permission to appeal is refused.
VICE PRESIDENT
Appearances:
E. White, of counsel for the United Firefighters’ Union of Australia
B. Avallone, of counsel for the Emergency Services Telecommunications Authority t/a ESTA 000
Hearing details:
2018.
Melbourne:
24 August.
1 [2018] FWC 4351
2 AE418496
3 Decision at [30]
4 Decision at [91]
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] - [46]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
8 [2010] FWAFB 5343, 197 IR 266 at [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 Pawel v AIRC [1999] FCA 1660
12 Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470, 211 IR 1 at [380]
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