United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board

[2020] FWC 1710

[2020] FWC 1710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2019/5397)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 APRIL 2020

Application to deal with a dispute in accordance with the dispute settlement procedure in an agreement – use of engagement on a fixed term basis – whether for permitted purpose under the agreement – whether extension of engagement on a fixed term basis consistent with provisions permitting such engagement – effect on rate of pay for period of paid parental leave under the agreement

Introduction and Background

[1] The United Firefighters’ Union of Australia (UFU) applied under s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute with Metropolitan Fire and Emergency Services Board (MFB) in relation to whether the MFB, in engaging Ms Barbara Tabone on a fixed term basis, did so in circumstances not permitted by clause 24.4(b) of the Metropolitan Fire and Emergency Services Board Corporate and Technical Employees Agreement 2017 (Agreement). 1 The Agreement is currently in operation and covers Ms Tabone and the UFU.

[2] The factual background matters relating to the dispute are largely uncontroversial.

[3] Ms Tabone is a member of the UFU. 2 She is employed by the MFB in its Operation Training Department located in the Victorian Emergency Management Training Centre in Craigeburn.3 She commenced employment as an Electronic Publishing Officer (Level 4) (EPO Role) under the Agreement on 14 August 2017 and that is her substantive position.4

[4] Ms Tabone is currently on parental leave which commenced on 2 September 2019 and she is due to return to work from that leave on 31 August 2020. 5

[5] Between 14 May 2018 and 28 February 2019, following an internal advertisement, Ms Tabone was employed under a fixed term contract in the role of Senior Development Officer (Level 5) (SDO Role). 6 After commencing in the SDO Role, Ms Tabone’s vacant substantive EPO role was advertised internally and externally and was filled by an external applicant on a fixed term basis.7 In around February 2019, approaching the expiration of her initial fixed term contract in the SDO Role, Ms Tabone was offered and accepted a further fixed term contract for a period of six months to continue in the SDO Role,8 with the second six month period commencing on 1 March 2019.

[6] In early April 2019 Ms Tabone gave notice to MFB of her pregnancy and her intention to take parental leave. 9 On 1 August 2019 Ms Tabone formally applied for parental leave for the period commencing on 2 September 2019 and returning on 31 August 2020.10 Ms Tabone’s last day at work was 30 August 2019 and her parental leave commenced on 2 September 2019.11

Issues in dispute

[7] Clause 73.8(b) of the Agreement makes provision for 14 weeks paid parental leave. Ms Tabone was paid for this period at the rate applicable to a Level 4 classified employee under the Agreement, that is, the rate applicable to her substantive EPO role. Payment for the period at this rate rather at the Level 5 rate commensurate with the SDO Role which she held prior to commencing parental leave, is at the heart of the dispute.

[8] The UFU advances that several questions arise in relation to the dispute. These are as follows:

1. Was Ms Tabone’s fixed term employment in the SDO Role used for a permitted purpose pursuant to clause 24.4 of the Agreement?

2. Prior to offering Ms Tabone a second fixed term contract in the SDO Role, did the MFB review the SDO Role and circumstances to ensure that any further fixed term appointment was consistent with the provisions of clause 24.4(b) of the Agreement, as required by clause 24.4(c) of the Agreement?

3. Did the MFB engage Ms Tabone on a fixed term contract to perform the SDO Role in a manner proscribed by clause 23 of the Agreement?

4. Was Ms Tabone's pregnancy a substantive or operative reason not to continue her in the SDO Role?

5. What is the applicable rate of pay for Ms Tabone's paid parental leave, pursuant to clause 73.8 of the Agreement?

6. What, if any, relief should follow from the resolution of the preceding issues?

[9] The MFB raises a jurisdictional objection to the determination of the fourth question. 12 That question is no longer pressed by the UFU although it does not accept the basis of that objection.13

[10] The resolution of the remaining questions posed by the UFU in this dispute turn in part on the proper construction of the Agreement. The principles applicable to the proper construction of an enterprise agreement were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 14 The summary of the applicable principles set out in Golden Cockerel was modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited15to take account of the discussion by the Full Bench of the extent to which evidence of prior negotiations and positions adopted in negotiations might be called in to aid a construction in light of the statutory scheme under which an enterprise agreement is made and the fact that it is made when a majority of relevant employees vote to approve the agreement.

[11] The applicable principles are not in contest and need not be rehearsed at length here. In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant.

[12] I turn next to consider the remaining questions.

Was Ms Tabone’s fixed term employment in the SDO Role used for a permitted purpose pursuant to clause 24.4 of the Agreement?

[13] The UFU contends that Ms Tabone’s appointment to the SDO Role is not consistent with any of the circumstances permissible under clause 24.4(b) of the Agreement. The MFB contends that clause 24.4(b)(ii) provides for a common industrial situation or circumstance, namely, where workloads are in a state of flux. It says this occurred in the Operation Training Department in the present case. It says that meeting unexpected increased workloads for a period of no more than 12 months is a circumstance which, the parties intended, was one permitting the use of fixed-term employment to ensure that there is flexibility in work arrangements. It says that clause 24.4(c) read with clause 24.4(b)(ii), enables the use of a second or subsequent fixed-term contract of less than 12 months duration, provided that the workloads are of a kind which justifies using such arrangement.

[14] It is uncontroversial that the reference to “employees engaged on a fixed term basis” in the Agreement, is intended to embrace both employees who are engaged on a fixed term contract - one that is not terminable before the expiration of the term other than in cases justifying summary termination - and those who are engaged on a maximum term contract - where the right to terminate the contract on notice before the expiration of the term is maintained.

[15] Clause 24 of the Agreement deals with the subject of employment categories. By sub-clause 24.1(a) employees under the Agreement will be employed in one of four categories – full-time employees, regular part-time employees, casual employees or employees engaged on a fixed term basis (both part-time and full-time hours).

[16] Subclause 24.4 of the Agreement deals with fixed term employees and provides:

“ (a) A fixed term employee is one who is engaged on a fixed term basis.

(b) The use of fixed term employment will be limited to:

(i) replacement of employees proceeding on approved leave where that leave is for a minimum of two (2) months;

(ii) meeting unexpected increased workloads for a period no more than twelve (12) months;

(iii) undertaking a specified task which is funded for a specified period;

(iv) filling a vacancy resulting from an Employee undertaking a temporary assignment or secondment;

(v) temporarily filling a vacancy up to six (6) months where, following an appropriate selection process, a suitable ongoing employee is not available; or

(vi) filling a vacant role whilst a review of the area is undertaken, provided that such appointment does not exceed a period of twelve (12) months.

(c) Prior to offering a second or subsequent fixed-term contract, the MFB will review the actual role and circumstances to ensure that any further fixed-term appointment is consistent with the provisions of 24.4(b).

(d) If an employee engaged on an ongoing basis applies for a fixed term position and the MFB decides to appoint that employee to the position, the appointment will not affect the employee’s ongoing employment.

(e) For the avoidance of doubt, disputes regarding this clause will be dealt with in accordance with clause 16.”

[17] Sub-clause 24.4(b) of the Agreement clearly limits the circumstance in which the MFB may, under the Agreement, engage an employee on a fixed term basis as contemplated by sub-clause 24.1(a)(iv). Such an engagement is not permitted except if one of the circumstances described in sub-clause 24.4(b) exists at or around the time of the engagement.

[18] As earlier noted, the MFB maintains that the engagement was justified as the Operation Training Department’s use of the fixed term engagement was meeting unexpected increased workloads and the engagement was for a period no more than 12 months (sub-clause 24.4(b)(ii)).

[19] It seems to me that for the circumstances permitting the engagement of an employee on a fixed term basis under sub-clause 24.4(b)(ii) to be enlivened, two things must be present. First, there must be “increased workloads”. Secondly, the increased workloads must be “unexpected”. That is, the increased workloads were not expected or regarded as likely to happen. Thus, increases in workloads which result from decisions to increase or to change activities undertaken by the MFB, or increases in workloads which are anticipated or planned would not fall within sub-clause 24.4(b)(ii) because such increased workloads are not unexpected.

[20] Whether the MFB’s appointment of Ms Tabone to the SDO Role in the Operation Training Department on a fixed term basis was to meet unexpected increased workloads is a question of fact to be determined on the evidence.

[21] The advertisement on 11 April 2018 for a fixed term appointment of a Senior Development Officer until 28 February 2019 16 does not in terms disclose the reason necessitating the appointment on a fixed term basis.

[22] Mr Kevin Brown, who is the Acting Deputy Chief Officer (ADCO) of the MFB gave evidence that in April 2018 there was an increase in the workload within the Operation Training Department, largely due to the need to align all of the policies, reviewing and updating of training materials and the Victorian Recruit Firefighter Program. 17 The latter, he said, resulted in an increased workload because there was a greater number of recruit training courses and promotional courses which were being undertaken.18 He said that these increases in workload had not been foreseen and they needed to be addressed.19 However, he later describes “reviewing and updating of training materials” as “ordinary work performed by the team”.20

[23] It is difficult to accept, and I do not accept, that the increase in workload described by ADCO Brown resulting from the “need” to align all of the policies, review and update training materials, and the decision to undertake more recruitment training courses was “unforeseen”. The statement is, respectfully, self-serving and not based in fact. ADCO Brown does not explain how the need to undertake the additional activities was “unforeseen”. He does not describe the nature of any event or increase in demand which was unexpected that resulted in the need to undertake the additional activities described by him in his evidence. His bald statement that “these increases in workload had not been foreseen” is not supported by fact or circumstance which would lend support to the assertion. The bald statement, unsupported by any causal explanation, is not evidence of the fact.

[24] Mr Luke Anania, who is employed by the MFB as a HR Business Partner, also gave evidence. Mr Anania was not employed by the MFB when Ms Tabone was engaged for the first period on a fixed term basis. Ms Tabone commence that period on 14 May 2018, while Mr Anania commenced his employment on or around 3 September 2018. 21 Mr Anania accepted that as he was not employed by MFB at the time of Ms Tabone’s engagement on a fixed term basis, other MFB employees, in particular Commander Harris and Assistant Chief Fire Officer Curtain, were better placed than he to give evidence about the engagement and the staffing requirements in the Operation Training Department at that time.22

[25] Ms Tabone gave evidence that when she commenced employment at the MFB there were also two SDO roles in the Training and Development Team. One was filled by Ms Minerva Mitri, a permanent full-time employee. The other was filled by Mr Kevin Ottrey who also worked full-time, but Ms Tabone understood that Mr Ottrey was engaged on a fixed term basis. Mr Ottrey finished his employment with MFB in about April 2018 after approximately 18 months in the SDO Role. 23 Ms Tabone was not cross-examined about this evidence and the MFB did not call any evidence to contradict or to clarify Ms Tabone’s understanding of Mr Ottrey’s employment.

[26] At the very least, whatever might have been the basis of Mr Ottrey’s employment, he was employed in an SDO Role and he ceased employment in that role in about April 2018. ADCO Brown said in his evidence that:

“In early April 2018, Commander Harris and ACFO Curtin discussed with me their view that the Department needed the assistance of a second Senior Development Officer role to assist in managing the workload. This was to be in addition to the existing permanent SDO position (occupied by Minerva Mitri).

Commander Harris and ACFO Curtin recommended that the new SDO Role be a fixed term contract, as it was unclear whether there would be a continuing need for the role. I agreed with them that a fixed term role of less than 12 months was necessary as it was needed to meet the work requirements in the Department during that period. As I have indicated above, the workloads were increasing as a result of the greater number of recruit training courses and promotional courses which were being undertaken, as well as reviewing and updating of training materials including the Victorian Recruit Firefighter Program. These increases in workload had not been foreseen and they needed to be addressed.

On the basis of the recommendation of Commander Harris and ACFO Curtin, and my understanding as at May 2018 that the workload in the Department was increasing beyond what we had expected, I approved the creation of a fixed term SDO Role . . .” 24

[27] Although ADCO Brown responded to several of the matters raised in Ms Tabone’s evidence, he did not respond to or contradict her evidence about Mr Ottrey’s employment and its cessation. 25 His evidence about workload, need and uncertainty is to be assessed in that light. Similarly, Mr Anania responded to several matters raised in Ms Tabone’s evidence but did not respond to or contradict her evidence above.26 As a HR Business Partner, Mr Anania had ready access to MFB personnel files which would have disclosed the basis and duration of Mr Ottrey’s employment. It is evident that he looked at the “paperwork and records” concerning Mr Ottrey’s employment.27 Indeed, Mr Anania’s evidence was that he accepted Ms Tabone’s evidence about Mr Ottrey’s employment.28

[28] One gets the sense from the evidence led by the MFB that there is an attempt at historical revisionism or to reverse engineer the circumstances surrounding Ms Tabone’s engagement on a fixed term basis so as to bring them within the permissible bounds of sub-clause 24.4(b) of the Agreement. This is perhaps no more aptly demonstrated than by ADCO Brown’s evidence when compared to the explanation given to Ms Tabone’s UFU representative by Ms Janette Pearce, the MFB’s Director, Workplace Relations and Ethical Standards Unit. In an email of 28 August 2019 Ms Pearce set out the following explanation:

“As advised in previous correspondence, it remains MFB’s position that the role is a temporary fixed-term position. The role has been advertised and filled as a temporary role in accordance with clause 24.4 (iii) to undertake ‘a specified task which is funded for a specified period’.

During our discussions on Monday, the UFU advised that it was your position, at least in part, supported by your belief that the role was that it had been a temporary ongoing role for some time. We understood this to include a period of time prior to Barbara’s 2018 fixed term appointment. Further to this point, we understood from our discussions that Barbara had replaced a previous incumbent when they retired. We have sought further information in regard to this new information, and we are instructed that this information is not correct.

From our review of the circumstances of this matter, it appears that Barbara held a fixed term appointment at the same time as the other employee for the initial fixed term appointment. This means that in addition to the permanent established position of Senior Development Officer, there were an additional two Senior Development Officers engaged on a fixed term basis during the period of 24 May 2018 and 28 February 2019.

It therefore remains MFB’s position that the role is a temporary fixed term position for a specified task and we do not agree with the UFU’s view that the role is a permanent ongoing position.” 29

[29] Ms Pearce was not called to give evidence and no explanation is given for the different justification for Ms Tabone’s engagement on a fixed term basis set out in the email compared to that which is advanced by the MFB in this case. Mr Anania said that he was surprised when he read Ms Pearce’s email attached to the statement of Ms Tabone 30 but he was not “privy to the discussions or the information of the dispute”.31 He also said that he was not aware that the provision identified in Ms Pearce’s email as justifying engagement on a fixed term basis was being relied on until the commencement of these proceedings.32 Ms Pearce’s email had been filed and served by the UFU, as an attachment to Ms Tabone’s witness statement, well before the commencement of the proceeding. The MFB could have taken steps to correct it or to explain why Ms Pearce was wrong or that she had otherwise misunderstood the reason for the engagement. That it did not do so merely reinforces my impression of MFB’s evidence earlier stated.

[30] It seems to me on the evidence that in or about April 2018 there was a departure of an existing fixed term SDO (Mr Ottrey) leaving only one part time SDO (Ms Mitri). This created a workload issue. The matters affecting workload in the Operation Training Department identified by ADCO Brown, do not for the reasons earlier set out, disclose unexpected increased workloads. It was not suggested that Mr Ottrey’s departure in April 2018 was unexpected, nor could it be given his engagement on a fixed term basis.

[31] In the circumstance I do not consider Ms Tabone’s appointment commencing on 14 May 2018 to the SDO Role on a fixed term basis meets any of the permissible circumstances under which the MFB may appoint employees on a fixed term basis identified in sub-clause 24.4(b) of the Agreement. Ms Tabone’s appointment on a fixed term basis, while no doubt responsive to workload, was not to meet “unexpected” increases to workload. It also is plain, notwithstanding Ms Pearce’s email, that Ms Tabone’s engagement on a fixed term basis appointment was not for the purpose of undertaking a specified task which is funded for a specified period. The MFB does not contend otherwise.

[32] I consider that Ms Tabone was undertaking the SDO Role on a fixed term basis to meet an ongoing and not unexpected workload need in the Operation Training Department. There is no suggestion that Ms Tabone’s appointment to the SDO Role on a fixed term basis was permitted for any other reason found in sub-clause 24.4(b) of the Agreement other than that asserted by the MFB in its evidence. That evidence does not make good the assertion.

[33] It follows that the answer to the question is “no”.

Prior to offering Ms Tabone a second fixed term contract in the SDO Role, did the MFB review the SDO Role and circumstances to ensure that any further fixed term appointment was consistent with the provisions of clause 24.4(b) of the Agreement, as required by clause 24.4(c) of the Agreement?

[34] It is uncontroversial that Ms Tabone’s six month fixed term engagement ended on 28 February 2019 and that she was offered and accepted a further six month fixed term engagement commencing on 1 March 2019.

[35] Ms Tabone’s evidence about the circumstances of the second engagement was as follows:

“In February 2019 I was approaching end of my fixed term contract. Around that time I spoke to Commander Lyons and said that I would like to continue in the Senior Development Officer role. I believe I also raised this desire with ACFO Mick Swift. ACFO Swift later verbally confirmed that my fixed term contract was to be extended for a further 6 months. I was not provided any documentation or paperwork about this extension. My payslips continued to reflect the Senior Development Officer Level 5 pay rate. Some months later I spoke by telephone to Luke Anania from MFB HR who confirmed that the extension of my contract was recorded in MFB’s HR system.

On 1 March 2019 I spoke to ACFO Mick Swift in his office and he confirmed the extension of my contract. In that conversation ACFO Swift stated that the intention was to push for approval of the FTE within that six months. The reference to “FTE” related to “Full Time Equivalent”, that is, my Senior Development Officer role becoming a permanent role. ACFO Swift also told me that the decision was above him. Based on that discussion, I had an expectation that the Senior Development Officer role would become permanent sometime within the following 6 months.

Around this time the MFB again advertised externally for a six month fixed term contract to cover the role Electronic Publishing Officer . . .” 33

[36] Ms Tabone’s evidence does not disclose any ‘review’ and the UFU submits that it does not know what, if any, steps the MFB took to comply with sub-clause 24.4(c) of the Agreement. 34

[37] ADCO Brown also gave evidence about the circumstances. He said the following:

“In or around November 2018 ACFO Trent Curtin moved to another department within the MFB and ACFO Michael Swift commenced in ACFO Curtin’s position of Director Operational Training. This position was previously known as Director Training and Development, but the name changed around about the time that ACFO Swift commenced in the role.

After he commenced in the Director Operational Training role, ACFO Swift considered the staffing needs of the Department in light of the workload which existed at the time.

I met with ACFO Swift in about February 2019 regarding Ms Tabone’s fixed term contract in the SDO Role. At that time the contract was about to expire.

ACFO Swift recommended to me that the MFB offer Ms Tabone a further fixed term contract for six months while the assessment was being made as to whether the SDO Role was required on an ongoing basis. If the role was to be needed on an ongoing basis, it was possible that it could be made into a permanent role like Minerva Mitri’s SDO role, however as at February 2019 there was no certainty about whether it was possible to make the role permanent. (I explain further below the limited number of permanent FTE positions presently available at the MFB, in the context of the forthcoming establishment of Fire Rescue Victoria (FRV)).

In February 2019, it was ACFO Swift’s and my opinion that work in the Department would continue to increase, however it was unclear how long this increase in workload would continue for. It was therefore necessary to maintain a second SDO role for the next six months, hence the offer of the second contract to Ms Tabone.

At that time, in addition to the ordinary work performed by the team in reviewing and preparing training and course materials, the team was changing the training manuals and participating in an extensive audit as part of the re-certification of the MFB’s RTO status, which occurs once every five years. The RTO audit involved a significant amount of work on the part of Ms Fadia Mitri, which in turn had the effect of Ms Fadia Mitri’s other usual work flowing down to other team members in the Department. The Department needed an employee with qualifications at the MFB Level 5/SDO level, who could operate independently, to assist Ms Fadia Mitri with the performance of her work and who could support the leadership of the Department and afford them respite during this RTO audit period.

The increased workload was also due to the impending commencement of Fire Rescue Victoria (FRV). At the beginning of 2019, legislation was passed by the Victorian Parliament to create FRV. FRV will bring together the MFB and elements of the CFA to create a new fire service. FRV is expected to commence next year, with a view to being operative for the 2020/2021 fire season - although there will be a transitional period for the 18 months after the commencement of FRV during which there will be a gradual transfer of some operations and functions currently performed by the CFA.

On the basis of the workload as it stood in February 2019 and the immediate impact of that workload on the Department, in particular the immediate impact of the RTO audit, ACFO Swift recommended to me that Ms Tabone’s contract be extended.

Notwithstanding the uncertainty as to ongoing workflow and therefore the ongoing need for the SDO Role, due to the workload at the time we agreed that Ms Tabone’s contract would be extended for a further six months.

I later met with Luke Anania, HR Business Partner, as part of our usual HR catch ups. Mr Anania asked me what I intended to do with Ms Tabone’s fixed term contract. I informed Mr Anania that ACFO Swift and I had agreed to offer Ms Tabone a further six month contract and instructed him to action this.” 35

[38] ACFO Swift’s evidence was that:

“In or around late February 2019 I met with DCO Brown regarding Ms Barbara Tabone’s fixed term contract in the Senior Development Officer Role (SDO Role).

I explained to DCO Brown that the Department was very busy and that I expected that the workload was going to increase with the incorporation of the continued CFA training requirements, the upcoming recruit courses and in particular, the work associated with the re-accreditation of the MFB’s RTO status, which was ongoing in February 2019 (and which was ultimately completed in April 2019).

The re-accreditation of the MFB’s RTO status is conducted by way of an audit by the Victorian Registration and Qualifications Authority and occurs once every five years. This audit was a significant amount of work for the team to ensure that the MFB’s training materials met the Australian Quality Training Standards.

I explained to DCO Brown that firstly we needed to focus on employing someone in Ms Tabone’s substantive Electronic Publishing Officer Role (EPO Role) on a fixed term of six months. Once this was completed, in time I wanted to create an additional Senior Development Officer role on an ongoing basis to deal with the workload of the Department.

I recommended to DCO Brown that we offer Ms Tabone a further six months in the SDO Role as I knew that we definitely had enough work for the next six months, and during that time we could assess the resourcing and workload requirements of the Department, which would be impacted by whether or not we could successfully recruit someone to fill Ms Tabone’s EPO Role.

I explained to DCO Brown that my thought process was that once we worked through the next six months, then hopefully we could create a permanent ongoing SDO Role toward the end of 2019.

DCO Brown agreed to offer Ms Tabone a further fixed term contract of six months in the SDO Role.

After my meeting with DCO Brown in or around early March 2019, I met with Ms Tabone and indicated to her that she would be offered a further six month contract in the SDO Role. I indicated to Ms Tabone that I was hoping that during that six month period I would be able to push for a further FTE and create an additional permanent SDO Role . . .” 36

[39] Mr Anania also gave evidence about the circumstances surrounding the second appointment. His evidence was as follows:

“During February 2019 I had a number of telephone discussions with ACFO Swift regarding the resourcing of the Department. In these discussions, ACFO Swift expressed that the Department was extremely busy.

In one of these telephone conversations in or around the week beginning 25 February 2019, but before 28 February 2019, I raised with ACFO Swift the fact that Ms Tabone's fixed term contract in the SDO Role was coming to an end on 28 February 2019. I asked ACFO Swift what his intention was with respect to the SDO Role and whether the Department had a continued requirement for that work.

ACFO Swift advised me that he thought it was appropriate to extend Ms Tabone's contract in the SDO Role because of the high volume of work coming in. ACFO Swift indicated to me that he had an urgent need for staff because there was so much work to be done. At this time, there was an increased number of courses scheduled to be undertaken at VMTEC, which resulted in increased work for the team. In addition, it was widely anticipated that the FRV legislation would imminently pass Parliament, and this would inevitably impact on the team's workload significantly as it would require the amalgamation of CFA and MFB training resources and staff.

In the week beginning 25 February 2019 I met with DCO Brown. I have usual catch ups with DCO Brown to keep him updated on matters in his portfolio. In my meeting with DCO Brown that week, we had a conversation to the following effect:

"Me: There is a lot going on out at training. Barbara's fixed term contract ends on 28 February. What do you want to do? Mick has asked me to speak to you and they want to extend the contract.

DCO Brown: Yes, we need to extend. I know how much pressure they are under, I've been in contact with Mick about it. Let's offer Barbara another six months, as we should know more about FRV by then.

Me: Ok, I'll prepare the necessary paperwork. We will need to back-fill Barbara's substantive position. Is this OK?

DCO Brown: Yes, let's do this also."

From our conversation I understood the reason that DCO Brown wanted to offer Ms Tabone a contract for only six months to be because at the time, it was anticipated (although it was not certain) that FRV legislation would pass through the State Parliament. If the legislation did pass, it would result in an increased workload in the Department to coordinate all of the training, as well as the amalgamation of staff between the CFA and MFB. These changes would necessitate a substantive review of staffing needs in the Department. That said, even if the legislation didn't pass, there was an increased workload in the Department which would have warranted additional support.” 37

[40] It seems on the evidence that ACFO Swift’s consideration of “the staffing needs of the Department in light of the workload which existed at the time”, which led to the second engagement, amounted to little more than the conclusion there was a current workload justifying it. He was plainly also of the view that a permanent position was justified having regard to the workload. As is evident from the above ACFO Swift wanted, once someone had been appointed in Ms Tabone’s substantive EPO Role on a fixed term basis, in time, “to create an additional Senior Development Officer role on an ongoing basis to deal with the workload of the Department”. 38 ACFO Swift communicated to Mr Anania that it was appropriate to extend Ms Tabone’s appointment because “of the High volume of work coming in” and “there was so much to be done”.39 In addition, legislative changes then anticipated, but which now have been enacted, would “inevitably impact on the team’s workload significantly”.40

[41] It is apparent that both ADCO Brown and Mr Anania agreed with ACFO Swift’s assessment. 41

[42] Sub-clause 24.4(c) of the Agreement provides that “[P]rior to offering a second or subsequent fixed-term contract, the MFB will review the actual role and circumstances to ensure that any further fixed-term appointment is consistent with the provisions of 24.4(b)”.

[43] The obligation in sub-clause 24.4(c) of the Agreement is substantive. In my view, it is not discharged by informal consideration about whether to offer a second or further fixed-term engagement. It is also not discharged by, formally or otherwise, considering the wrong matters. As should be evident from the text of sub-clause 24.4(c), the obligation imposed is for the MFB to “review the actual role and the circumstances”. Used as a noun “review” means a formal assessment of something with the intention of instituting change if necessary. As a verb it means to assess (something) formally with the intention of instituting change if necessary.

[44] The review must happen “prior to offering a second or subsequent fixed-term contract” and must “ensure that any further fixed term appointment is consistent with the provisions of clause 24.4(b). In this case that required ensuring that the further fixed term appointment offered to Ms Tabone is consistent with “meeting unexpected increased workloads for a period no more than twelve (12) months”. Although it is conceivable that a second or subsequent appointment could be justified on grounds other than that which permitted the first appointment, in this case no other justification is proffered. 42

[45] The use of the word “ensure” in sub-clause 24.4(c) of the Agreement means the review MFB undertook before any second appointment was offered should have been directed to securing or guaranteeing or making sure or being certain that the offer to Ms Tabone was consistent with “meeting unexpected increased workloads for a period no more than twelve (12) months”. I agree with the UFU’s contention that MFB was obliged to reach a high level of satisfaction as to the role and the circumstances, to make sure that the engagement of Ms Tabone on a fixed term basis in the SDO Role was consistent with the provisions of sub-clause 24.4(b) and that this required it to review the actual role and circumstances. 43 On the evidence, such review as was conducted by ACFO Swift of the role and circumstances resulted in a conclusion that there was an ongoing, and not a temporary need for a full time SDO Role. Such a conclusion seems to me to be inconsistent with “meeting unexpected increased workloads for a period no more than twelve (12) months”

[46] In my view the evidence as disclosed above does not ascend to the heights required by sub-clause 24.4(c) of the Agreement. Moreover, as I have already indicated, that which the evidence discloses is an existing and ongoing need for an additional SDO Role in the Operation Training Department brought about by, inter alia, imminent legislative change and associated necessary preparatory work. It seems to me on the evidence, that but for the Board imposed prohibition on any increase in full-time equivalent positions, about which ADCO Brown gave evidence, 44 ACFO Swift would have recommended the permanent filling of the SDO Role. As ACFO Swift said in his evidence, the Board’s prohibition “meant that [he] could not implement [his] plan with respect to resourcing the Department and creating the permanent ongoing SDO Role”.45 This evidence also makes clear that the workload pressures and the need for an additional permanent SDO Role in the Operation Training Department was existing and ongoing. It had not unexpectantly increased.

[47] Consequently, the second appointment of Ms Tabone to the SDO Role on a fixed term basis was not consistent with meeting unexpected increased workloads or with any other permissible ground found in sub-clause 24.4(b) of the Agreement. Moreover, there was no proper review of the role and circumstances to ensure that the second appointment was consistent with a permitted purpose in sub-clause 24.4(b).

[48] For these reasons the answer to the question is “no”.

[49] Given my answer to the earlier question, I would add, for the avoidance of doubt, that if the second appointment is treated as a first appointment (because the May 2018 appointment was not permitted), on the basis of the evidence discussed above, the circumstances of the March 2019 appointment do not engage with any of the permitted grounds in sub-clause 24.4(b) of the Agreement, and so the appointment on a fixed term basis was not permitted.

Did the MFB use the SDO Role in a manner proscribed by clause 23 of the Agreement?

[50] Clause 23 of the Agreement is titled “Job Security” and relevant provides:

“23.1 The MFB confirms that it is committed to maximising work in-house, current and future permanent employment and maintaining staffing levels. The MFB will not use casual or fixed-term employees or external contractors or consultants (temporary labour) to perform work customarily performed by employees in a manner that erodes the job security, wages and conditions and career prospects of its employees.”

[51] The UFU contends that I should answer this question “yes”. In so doing, the UFU contends that taking into account the MFB’s “commitment” in the first sentence of subclause 23.1 of the Agreement to maximise current and future permanent employment, the “prohibition” in the second sentence on the use of “fixed term employees” includes permanent employees engaged to perform a fixed term role. It says that the reference to “work customarily performed by employees …” must be taken to be a reference to work customarily performed by employees engaged on permanent contracts. It says that is consistent with the language of the sentence. I accept the UFU’s construction.

[52] The MFB contends that clause 23 of the Agreement is in the nature of an aspirational clause, or a “motherhood” statement, which does not create any particular rights or obligations. 46 This submission is rejected. Whilst the first sentence on its own might be read as aspirational, that reading cannot be maintained once account is taken of the second sentence. That which the MFB commits to doing in the first sentence is given effect by the express promise in the second. The suggestion in the MFB’s submission that if the MFB were to use, for example, fixed-term employees to perform work customarily performed by employees in a manner that erodes the job security, wages and conditions and career prospects of its employees, there is no enforceable obligation that could be breached because the term is aspirational, is inconsistent with the words in the sub-clause 23.1 and does not survive the barest of scrutiny. The promise made in clause 23.1 is an enforceable term of the Agreement.

[53] I turn next to consider whether MFB used the SDO Role (by appointing Ms Tabone to it on a fixed term basis) in a manner proscribed by clause 23 of the Agreement.

[54] The UFU contends that by offering the SDO Role to Ms Tabone as a fixed term contract, the MFB acted inconsistently with clause 23.1 in the following respects:

•  using the SDO Role on fixed term contact eroded Ms Tabone’s job security in the broader sense, that is, Ms Tabone had no certainty or security about ongoing work with the consequence that:

◦  Ms Tabone’s wages and conditions were eroded to her previous Level 4 classification after 28 August 2019 because she had not been able to obtain permanent employment at Level 5; and

◦  her parental leave is to be paid at the rate of the lower EPO Role and she has no entitlement to return to the SDO Role upon the completion of her parental leave; and

•  the direct result of providing the SDO Role on a fixed term, rather than an on-going, basis was the use of temporary labour to back fill Ms Tabone’s EPO Role. Consequently:

◦  it remains Ms Tabone’s substantive role, and the MFB is unable to permanently fill the role; and

◦  the MFB looked to use, and did use, external fixed-term employees and external contractors to fill the EPO Role. In doing so:

•  it failed to maximise work in-house; and

•  eroded the job security, wages and conditions and career prospects of persons who might wish to apply for the EPO role.

[55] MFB contends that the evidence shows that it has complied with clause 23 in respect of Ms Tabone’s employment.

[56] Clause 23.1 is not concerned with the motive or reason for the use of one or more of the forms of engagement therein enumerated. Rather it is concerned with the nature of the use of the engagement – as is evident from the use of the noun “manner” - and its effect on the matters enumerated - as is evident from the use of the third person present verb “erodes”. In this context “manner” means the way in which a thing is done or happens. “Erodes” means to gradually wear away or destroy. The relevant question there for is whether the “manner” (way in which) it used Ms Tabone ‘s engagement on a fixed term basis, has an effect that “erodes” (gradually wear away or destroy) “the job security, wages and conditions and career prospects” of MFB’s employees.

[57] I also consider that the relevant erosion need not be of all the matters listed despite the use of the conjunction “and”, twice appearing in the second sentence of sub-clause 23.1. This is plainly a case where the proper construction of the provision leads to the conclusion that the use of the conjunction “and” in the context of the provision as a whole, may mean “and” or it may mean “or” depending on the circumstances. Put simply I consider the conjunction to mean “and/or”.

[58] ADCO Brown gave evidence about the MFB Board’s decision to prohibit increases in full-time equivalent positions. Of this he said:

“As part of FRV the Government made the commitment that no one from either the MFB or CFA was to lose their job. Due to the uncertainty around the amalgamation of resources of the CFA and MFB in creating FRV, in around early March 2019 the MFB Board gave the direction that there was not to be any increase in full time equivalent (FTE) positions at the MFB until further notice.

In or around May 2019 at a meeting of the Executive Leadership Team (ELT) (of which I am a member), the ELT considered the existing FTE positions that were vacant within the MFB. There were 12 vacant FTEs within the entire MFB. At the meeting, the ELT considered those FTEs and allocated them to departments where there was an immediate need for an FTE position.

While I was conscious of the workload within the Department, there were other departments of the MFB which were a higher priority. Further, as ACFO Swift hadn’t committed to me on a definite FTE at a particular level, I did not seek an additional FTE for the Department after the Board directed that it would not approve any increase to FTE. In any event, based on the priorities of the other departments and the limitations of resourcing across the MFB, I considered it highly unlikely that I would be successful in obtaining additional FTE for the Department.

As at the time of preparing this Statement, the Board of the MFB has not changed its position that there are to be no more FTE positions created. In my view, it is unlikely any more FTE positions will be created at least until after FRV has been established in or about mid-2020.” 47

[59] ADCO Brown was not challenged about this evidence and was not cross-examined. I accept this evidence. When taken together with ACFO Swift’s evidence that the Board’s prohibition “meant that [he] could not implement [his] plan with respect to resourcing the Department and creating the permanent ongoing SDO Role”, 48 and his assessment of staffing more generally, the following emerges and I find that:

•  at all relevant times there existed a workload-based need in the Operation Training Department for a permanent full-time SDO Role;

•  ACFO Swift wanted to appoint a person to a permanent full-time SDO Role which he assessed was needed;

•  the appointment of a person to a permanent full-time SDO Role would require the MFB to increase the number of full-time equivalent positions;

•  at all relevant times there was in operation a prohibition by decision of the MFB Board on increases to the number of full-time equivalent positions;

•  ADFO Brown assessed that any request to the MFB Board to increase the number of full-time equivalent positions to enable the appointment of a permanent full-time SDO Role in the Operation Training Department would not succeed.

[60] From the evidence I also infer that use of the second fixed term engagement of Ms Tabone was the “work around” providing relief to the ongoing workload needs of the Operation Training Department whilst not transgressing the MFB’s Board direction.

[61] Having regard to the evidence, I do not consider that the MFB used the second fixed term appointment “in a manner that erodes the job security, wages and conditions and career prospects” of MFB’s employees, including Ms Tabone. Given the MFB Board’s prohibition on increasing the number of full-time equivalent positions, the alternatives to meet workload requirements would have been to take no action thereby placing greater workload pressure on members of the Operation Training Department or to use external contractors or consultants to manage the additional workload. Thus, there would not be a Level 5 appointment and Ms Tabone would have reverted to her substantive Level 4 position. Such use of an external contractor or consultant would not, in the circumstances of the MFB’s Board direction, likely have contravened sub-clause 21.1. The direction seems to me plainly intended to ensure that full-time equivalent positions are not increased until the resourcing requirements arising from the establishment of Fire Rescue Victoria are known. If it were a permanent freeze, the position might be different.

[62] However, the failure of MFB to create a full-time equivalent SDO Role and electing instead to appoint Ms Tabone to an SDO Role on a fixed term basis, was to use a fixed term employee in a manner that eroded Ms Tabone’s career prospects, in the sense that it gradually wore away (although did not destroy) an opportunity for Ms Tabone to progress in her career by being appointed permanently to a higher classification. This gradual wearing away occurred by the use of the first fixed term appointment and by the subsequent prohibition on increases to the full-time equivalent positions within the MFB at the direction of the MFB Board. Though not intending this result when the first engagement occurred, noting that ACFO Swift wanted the second engagement to be a permanent appointment, it was the result, nonetheless.

[63] For the foregoing reasons the answer to the question is “yes”.

What is the applicable rate of pay for Ms Tabone's paid parental leave for the purpose of clause 73.8 of the Agreement?

[64] Parental leave entitlements are set out in clause 73 of the Agreement. Sub-clause 73.8 sets out an employee’s basic entitlement to parental leave under the Agreement. Relevantly the table appearing at sub-clause 73.8(b) sets out a combination of paid and unpaid parental leave for a maximum duration of 52 weeks for both primary and secondary caregivers depending on the caregiver’s period of service. In short compass, as an employee with more than 12 months service and the primary caregiver to her daughter, Ms Tabone is entitled to paid leave in the amount of 14 weeks in accordance with sub-clause 73.8(b). There is no dispute about this. The matter in dispute is the rate of pay which should attach to the 14 weeks paid leave.

[65] The Agreement does not define “paid leave” nor does it set out how payment is to be calculated.

[66] The UFU contends that, consistent with other forms of paid leave arising under the National Employment Standards, paid leave under sub-clause 73.8(b) of the Agreement is to be paid at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. The UFU cites for example ss.81(6), 90(1), 99, 106 and 111(2) of the Act to make good this point.

[67] Since commencing parental leave, Ms Tabone has been paid the base rate of pay for the EPO Role. The UFU says that by reason of the contentions at [35] – [39] and [40] of its written submissions, Ms Tabone’s ordinary rate of pay for the duration of her paid parental leave should be attaching to the Level 5 SDO Role. I reject the UFU’s contentions for the reasons that follow.

[68] I would observe first, that the UFU did not press the contentions at [35] – [39] of its written submissions in light of the jurisdictional objection taken by the MFB to my dealing with the question raised by the UFU to which those submissions were directed.

[69] Secondly, I do not consider that provisions in the National Employment Standards dealing with other forms of paid leave upon which the UFU relies, have any bearing upon the meaning of paid leave in a parental leave entitlement under an agreement. The National Employment Standards do not make provision for paid parental leave and the provisions cited to not concern parental leave

[70] Thirdly, it is uncontroversial that:

•  Ms Tabone commenced parental leave on 2 September 2019; 49

•  The second fixed term engagement commenced on 1 March 2019 for a period of six months; 50

•  The six month period ended at the conclusion of 30 August 2019;

•  As no further fixed term engagement was made, the consequence of the ending of the second fixed term engagement was that Ms Tabone reverted to her substantive position.

[71] From the above it seems to me that the parental leave thereafter taken was leave from the substantive position that Ms Tabone occupied, namely the EPO role in the Operation Training Department. That position is classified under the Agreement as Level 4. It follows that the appropriate rate of pay paid for the period of paid leave under subclause 73.8(b) is the rate of pay that attaches to the classification for the EPO role under the Agreement.

[72] For the foregoing reasons the answer to the question is “the rate for the EPO Role”.

Conclusion and Relief

[73] For the reasons given I answer the questions raised for determination as follows:

Question: Was Ms Tabone’s fixed term employment in the SDO Role used for a permitted purpose pursuant to clause 24.4 of the Agreement?

Answer: No

Question: Prior to offering Ms Tabone a second fixed term contract in the SDO Role, did the MFB review the SDO Role and circumstances to ensure that any further fixed term appointment was consistent with the provisions of clause 24.4(b) of the Agreement, as required by clause 24.4(c) of the Agreement?

Answer: No

Question: Did the MFB use the SDO Role in a manner proscribed by clause 23 of the Agreement?

Answer: Yes

Question: What is the applicable rate of pay for Ms Tabone's paid parental leave for the purpose of clause 73.8 of the Agreement?

Answer: The rate for the EPO Role

[74] Apart from answering the questions as I have, the final question posed by the UFU as to relief urged me to make a determination to the effect that Ms Tabone’s SDO Role be converted to a full-time, ongoing contract. I do not propose to make such a determination on discretionary grounds even if I considered that I had power to do so, though I doubt such a determination is within power. As I indicated earlier I consider the direction made by the Board of MFB to impose a prohibition on the creation of any additional full-time equivalent positions pending the coming into operation of Fire Rescue Victoria to be a sound one in the circumstances, and it is not appropriate in those circumstances to interfere with a sound management decision. The determination proposed would have that effect.

[75] I will however make this observation and recommendation. It seems to me plain on the evidence that the workload within the Operation Training Department requires an additional permanent full-time SDO Role. ACFO Swift recognises that this is so. It is unlikely that this will change upon the coming into operation of Fire Rescue Victoria. In those circumstances, I recommend the MFB accept the assessment of ACFO Swift as to the need for an additional permanent full-time SDO Role within the Operation Training Department, create such a role, and if she is willing, appoint Ms Tabone to that position. The consequences of coming into operation of Fire Rescue Victoria should now be clear. We are less than three months from the commencement date. I recommend that this appointment be made before 1 July 2020 as on that date, the MFB will not exist by reason of the legislative arrangements for Fire Rescue Victoria, which will come to exist, and will be Ms Tabone’s employer.

[76] The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

J McKenna, counsel for the Applicant
J Tracey, counsel for the Respondent

Hearing details:

2019
Melbourne
18 December

Written submissions:

Applicant, 1 November 2019
Respondent, 3 December 2019

Printed by authority of the Commonwealth Government Printer

<PR717938>

 1   AE425980

 2   Exhibit 1 at [5]

 3   Exhibit 1, Annexure BT-1

 4   Exhibit 1 at [1], [10]

 5   Exhibit 1 at [2]

 6   Exhibit 1 at [16]-[20]

 7   Exhibit 1 at [25]

 8   Exhibit 1 at [25]-[26]; Exhibit 2 at [17]-[22]

 9   Exhibit 1 at [32]

 10   Exhibit 1 at [36]

 11   Exhibit 1 at [44]-[45]

 12   Respondent's Outline of Submissions at [13]-[18]

 13   Transcript PN10

 14   [2014] FWCFB 7447

 15   [2017] FWCFB 3005

 16   Exhibit 1, Annexure BT – 2

 17   Exhibit 2 at [6]-[7]

 18   Ibid at [8]

 19   Ibid

 20   Exhibit 2 at [18]

 21   Exhibit 4 at [1]

 22   Transcript PN181-PN186

 23   Exhibit 1 at [14]

 24   Exhibit 2 at [7]-[9]

 25   Exhibit 2 at [27]

 26   Exhibit 4 at [38]

 27   Transcript PN167

 28   Transcript PN162 – PN167

 29   Exhibit 1, Annexure BT – 13

 30   Transcript PN145

 31   Transcript PN144

 32   Transcript PN146

 33   Exhibit 1 at [26]-[28]

 34   Submissions of Applicant at [24]

 35   Exhibit 2 at [13]-[22]

 36   Exhibit 3 at [8]-[15]

 37   Exhibit 4 at [21]-[25]

 38   Exhibit 3 at [11]

 39   Exhibit 4 at [23]

 40   Ibid

 41   Exhibit 4 at [24]-[25]; Exhibit 2 at [19]

 42   Respondent’s outline of submissions at [25]

 43   Submissions of Applicant at [26]

 44   Exhibit 2 at [23]-[26]

 45   Exhibit 3 at [16]

 46   Respondent’s outline of submissions at [28]

 47   Exhibit 2 at [23]-[26]

 48   Exhibit 3 at [16]

 49   Exhibit 1 at [45]

 50   Exhibit 1 at [27]