[2019] FWC 6632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters’ Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2019/2472)

COMMISSIONER WILSON

MELBOURNE, 26 SEPTEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Jurisdiction; scope of dispute resolution procedure; application to circumstance either under an agreement which has ceased to operate or current agreement. Questions for determination; whether agreement requires consideration of “acting” service in determination of a paypoint after substantive appointment; whether discretion may be exercised on same subject.

[1] This decision concerns a dispute alleged by the United Firefighters’ Union of Australia (UFU) to have arisen under enterprise agreements applicable to employment within the Metropolitan Fire and Emergency Services Board (MFB). The dispute is brought to the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act). The precise nature of the alleged dispute involves employees whose substantive rank was as a Senior Station Officer and who acted for some period of time in the Commander classification after which they were appointed to the substantive position of Commander. The Commander classification provides several pay points, “on commencement”, “after 12 months” and “after 24 months”. The UFU characterises the dispute as being about what happens “when an employee who has been acting up into the Commander classification is appointed to the substantive rank of Commander. In those circumstances, must, or should, the MFB continue to recognise the service of that employee as an acting Commander for the purpose of the Commander pay points?”. 1

[2] The dispute presently before the Commission is in two parts.

[3] First is an alleged dispute originally initiated under the now superseded Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 2 (2010 Agreement), with that dispute being in relation to the circumstances of two particular employees, now substantively employed as Commanders, Rick Gili and Shane Rhodes. The first dispute was originally before the Commission in a separate matter, being C2017/6506, which was discontinued in April 2019 with its content being subsumed within the second part of the dispute, which has been advanced under matter number C2019/2472. The second part of the dispute before the Commission is an alleged dispute in relation to the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 20163 (2016 Agreement). This second part of the dispute is advanced in relation to Commanders engaged under the 2016 Agreement generally.

[4] Mr Jim McKenna, of Counsel, instructed by Davies Lawyers appeared for the UFU and Mr Marc Felman, of Counsel, instructed by Herbert Smith Freehills appeared for the MFB. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[5] Witness statements were provided by Richard Gili and Shane Rhodes in support of the application made on their behalf by the UFU. Shane Leversha, the MFB’s Human Resources Director, provided a witness statement in support of the MFB’s case. None of the witnesses were required for cross examination.

BACKGROUND

[6] Richard Gili and Shane Rhodes are employed by the MFB as Commanders with their employment presently covered by the 2016 Agreement. Both Messrs Gili and Rhodes have been substantively employed as a Commander since 14 December 2012. 4 Each of Mr Gili and Mr Rhodes spent some time working as acting Commanders before their substantive appointments. They say that service should be taken into account in setting their rate of pay when they were substantively appointed as Commanders. The circumstances of their transition to substantive engagement as a Commander is that each worked in three contiguous stages: a time as an acting Commander; training and the duties of Commander; and then appointment to the substantive position of Commander.

[7] In summary, the circumstances of each is:

• Richard Gili

• After being promoted to Senior Station Officer on 14 July 2000, 5, he acted as a Commander between August and December 2001;6 December 2007 and January 20087 and August 2010 and October 2012.8

• He commenced an 11 week Commander Development Program on 1 October 2012 and was substantively appointed on 14 December 2012; 9

• During the time he undertook the Commander training course he was paid at the Senior Station Officer rate. 10

• Shane Rhodes

• After being promoted to Senior Station Officer in December 2003, 11, he acted as a Commander between September 2010 and January 201112 and January 2011 and October 2012.13

He commenced an 11 week Commander Development Program on 1 October 2012 and was substantively appointed on 14 December 2012; 14

During the time he undertook the Commander training course he was paid at the Senior Station Officer rate. 15

[8] The reason the dispute is brought is that the wages structure for the Commander classification provides for a wage structure that takes into account time served in the classification. Clause 133 of the 2016 Agreement provides a wage rates table which includes three pay points for the Commander classification; on commencement; after 12 months and after 24 months. The table does not explicitly differentiate between employees acting up or in a substantive position.

[9] Once each person was assigned to the substantive Commander classification each employee was paid at the bottom of the range.

[10] The UFU argue that when an employee who has been acting up into the Commander classification is appointed to the substantive rank the MFB then must or should continue to recognise the person’s service as an acting Commander for the purpose of the Commander pay points. 16 The union further argues that the language of the wages clause, distinguishes between the circumstance in which an employee holds a substantive rank and when they are merely employed within the rank. In particular:

“… A firefighter will be "employed in" the classification of Commander when they are an Acting Commander, notwithstanding that that they have not been appointed to that substantive rank. This is consistent with an Acting Commander carrying out his or her work in accordance with the Commander Job Description at Schedule 5 to the 2016 Agreement.

By way of example, Richard Gili was employed in the position of Acting Commander - Operational Communications between August 2010 and October 2012.8 In August 2010 Shane Rhodes commenced the position of Acting Commander - Western District Infrastructure. He subsequently continued as the Acting Commander assigned to the Western District Major Hazard Facility project. Both men were employed in the classification of Commander in fulfilling those roles.” (references omitted) 17

[11] It is argued that the time spent as an acting Commander “must therefore be recognised for the purpose of their appropriate pay point. The fact that they may [then] be appointed to the substantive rank of Commander does nothing to change this”. 18

[12] While not arguing there is a jurisdictional objection to the dispute itself, the MFB argue that the Commission does not have jurisdiction from the 2016 Agreement to determine the dispute. In addition to advancing that there is no jurisdiction for the Commission to determine the dispute it is further argued that the claim should not succeed for reason of the proper construction of the 2016 Agreement. 19

[13] In relation to the matter of jurisdiction it is argued by the MFB this is a matter advanced under the 2016 Agreement, but which ultimately seeks a determination, in part at least, under the provisions of the 2010 Agreement which is now expired and no longer in operation. 20 More particularly, the 2016 Agreement dispute resolution procedure does not empower such a dispute to be raised.21

[14] There are two relevant classifications under both the 2010 and 2016 Agreements, namely Commander and Senior Station Officer (the rank immediately below Commander), with length of service determined by the amount of time one has within one’s substantive rank. 22 The MFB submits that giving effect to the plain words of Clause 96.1 of the 2010 Agreement in its surrounding context requires a conclusion that “any period of acting up in the role of Commander is not counted for the purposes of determining the appropriate Commander pay point”23

[15] The MFB notes that the Act itself prevents an agreement from having ongoing operation once superseded by another:

“… Section 58(2) relevantly provides that if an enterprise agreement applies to an employee in relation to particular employment and another enterprise agreement that covers the employee in relation to the same employment comes into operation, then, if the earlier agreement has passed its nominal expiry date, the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again. Similarly, s.54(3) of the FW Act provides that an enterprise agreement that has ceased to operate can never operate again. These provisions of the FW Act evince a clear statutory intention that once the 2016 Agreement came into operation, the 2010 Agreement would simply have no work to do in determining the rights and obligations of both the MFB and its employees covered by the 2016 Agreement in their employment relationship.” 24

[16] The MFB’s position regarding the lack of jurisdiction from within the 2016 Agreement for determination of the dispute relies on the interaction of Clause 28, the Dispute Resolution procedure with Clause 8, (Relationship to Previous Agreements) and Clause 28 (Savings). In short, MFB submit that while Clause 21.1.3 enables disputes to be brought about “all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement” is “relatively broad” its breadth is constrained by the other two clauses. First, Clause 8.1 does not give an intention to “revive” clauses in the 2010 Agreement, and second, the preservation of established rights in Clause 28 does not extend so far as to expressly save existing disputes about the Commander pay points. 25 The two matters together mean there are limits upon the operation of Clause 21; in the absence of a revival or savings of prior disputes, those which may be brought under the 2016 Agreement are disputes which are connected only with rights conferred by the 2016 Agreement.

QUESTIONS FOR DETERMINATION

[17] Because of the MFB’s jurisdictional objection, there is an overarching question requiring determination – of whether the Commission has the jurisdiction to determine any of the questions posed by the UFU.

[18] Beyond the subject of jurisdiction, the matters requiring determination are set out in the following manner within the UFU submissions: 26

2010 Agreement Dispute

Question 1 - Is the MFB required to recognise the periods Commander Rhodes and Commander Gili spent acting up to the role of Commander, prior to their appointment to the substantive rank of Commander, pursuant to cl 96. 1 of the 2010 Agreement?

Question 2- In the alternate to question 1, is the MFB permitted to recognise the periods Commander Rhodes and Commander Gili spent acting up to the role of Commander, prior to their appointment to the substantive rank of Commander, pursuant to cl 96.1 of the 2010 Agreement?

Question 3 - If the answer to question 2 is "yes'; should the MFB recognise the periods Commander Rhodes and Commander Gili spent acting up to the role of Commander, prior to their appointment to the substantive rank of Commander, pursuant to cl 96. 1 of the 2010 Agreement?

2016 Agreement Dispute

Question 4 - Is the MFB required to recognise any period a firefighter spends as an Acting Commander, undertaken immediately prior to the commencement of the Commander Course for the purpose of the Commander pay points under cl 133. 1 of the 2016 Agreement when that firefighter is promoted to the substantive rank of Commander?

Question 5 - In the alternate to question 4, is the MFB permitted to recognise any period a firefighter spends as an Acting Commander, immediately prior to the commencement of the Commander Course for the purpose of the Commander pay points under cl 133.1 of the 2016 Agreement when that firefighter is promoted to the substantive rank of Commander?

Question 6 - If the answer to question 5 is 'yes'; should the MFB recognise any period a firefighter spends as an Acting Commander, immediately prior to the commencement of the Commander Course for the purpose of the Commander pay points under cl 133.1 of the 2016 Agreement when that firefighter is promoted to the substantive rank of Commander?

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[19] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 27 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.28

[20] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 29 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”30

[21] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 31 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.32 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.33 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.34 However, the relief sought may cast light on the true nature of the dispute in some cases.35

[22] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 36 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.37

[23] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 38 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 39

[24] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 40

CONSIDERATION

Jurisdiction

[25] As set out above, the MFB contend the dispute as presently notified is unable to be determined by the Commission, since the 2016 Agreement does not confer jurisdiction on the Commission to resolve the dispute. After traversing the grounds that the Commission’s jurisdiction “to conduct an arbitration pursuant to the dispute resolution clause in an enterprise agreement depends on the relevant legislative provisions (in this case, s.739 of the FW Act) and the specific terms of the dispute resolution procedure in the enterprise agreement itself (in this case, Clause 19.1 of the 2010 Agreement)”, 41 the MFB more specifically argues that the rights conferred by the 2010 Agreement have expired with that Agreement being replaced by the 2016 Agreement.42

[26] The MFB argues that the correct construction of the 2016 Agreement does not allow the dispute to be raised and progressed. After noting that Clause 21 is a “relatively broad” dispute term, the MFB argues that the clause is constrained by two other clauses, 8 and 28:

“This is so for the following reasons:

(a) to permit the Commission to make a determination about the operation of the 2010 Agreement would have the effect of reviving that agreement (and, indeed, potentially all earlier industrial instruments in force during the employment of an MFB employee the subject of any dispute). In these circumstances, any intention in the 2016 Agreement to effectively override the statutory consequence of superseded agreements needed to be made clear in either clause 21 or clause 28 of the 2016 Agreement. Neither clause does this;

(b) clause 8.1 of the 2016 Agreement manifests an objective intention of the parties to the agreement that clause 21.1 was not intended to revive the operation of any clauses in the 2010 Agreement (or any other earlier enterprise agreements) after the 2016 Agreement came into operation;

(c) in the circumstances where clause 8.1 of the 2016 Agreement provides that the Agreement supersedes all of the provisions in the 2010 Agreement, a determination that the MFB must now recognise the service of Acting Commanders for the purposes of the 2010 Agreement would lead the Commission into making an order that is inconsistent with clause 8.1, in contravention of s.739(5) of the FW Act. This inconsistency would arise because the Commission is effectively being asked to make a decision about the MFB’s obligations under the 2010 Agreement in circumstances where clause 8.1 provides that that agreement has been replaced. Clause 21 of the 2016 Agreement should not be given an interpretation that could permit this outcome; and

(d) at the time of making the 2016 Agreement, there was already a dispute lodged by the UFU about the obligation of the MFB to recognise the service of Commanders Rhodes and Gili as Acting Commanders for the purposes of the Commander pay points under the 2010 Agreement. While the parties to the 2016 Agreement agreed to preserve various matters in clause 28, they did not expressly purport to save any existing disputes about the Commander pay points in the 2010 Agreement, nor disputes about the operation of the 2010 Agreement generally.” 43 (reference omitted)

[27] Such argument though significantly understates the language of the Dispute Resolution term, at Clause 21, as well as significantly overstating the language of Clauses 8 and 28. The manner in which the subject matter of the dispute is presently before the Commission means its continuation is not blocked because the 2010 Agreement has ceased to operate. 44 Instead of being a dispute raised and progressed under the 2010 Agreement, this is one raised under the 2016 Agreement, and is to be contrasted with a situation in which the dispute is under a now replaced agreement.45 Determination of whether the disputes as lodged may progress depends on the construction of the 2016 Agreement’s dispute resolution clause itself and the nature of the dispute before the Commission.46 A narrowly constructed dispute resolution clause, such as one limited to disputes about the application of the agreement or the NES, will mean that disputes raised under an agreement about the term of the former agreement will not survive.47

[28] In relation to a not dissimilar provision in the CFA Operational Staff Agreement 2010 48 the Full Court confirmed the breadth of the clause holding that “[i]n order to determine whether a particular matter is covered by the dispute resolution procedure one has merely to ask whether the matter pertains to the employment relationship”.49 Clause 15.1.2 of that agreement is in identical terms to the provisions in the agreements in dispute in this matter. That is, a dispute may be raised about “… all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement …”

[29] According to the MFB, Clause 8 of the 2016 Agreement confines Clause 21 with the former’s objective intention being to not revive the operation of any clauses in the 2010 Agreement. That objective intention, it is argued, comes from a clause which states that the 2016 Agreement “supersedes all the provisions in” the 2010 Agreement and the 2010 ACFO Agreement. 50

[30] Clause 28 saves certain provisions of employees by ensuring that the 2016 Agreement does not “operate to cause an employee to suffer a reduction” in nominated matters or to ensure that certain accrued entitlements “will not be affected by the making of this agreement”. By employing the language it does, it is argued that Clause 28 preserves only certain defined matters and “[w]hile the parties to the 2016 Agreement agreed to preserve various matters in Clause 28, they did not expressly purport to save any existing disputes about the Commander pay points in the 2010 Agreement, nor disputes about the operation of the 2010 Agreement generally”. 51 It is unnecessary in the context of the findings made in this decision to determine whether Mr Rhodes and Mr Gili’s claims about recognition of acting service for the purposes of the Commander pay points are “accrued entitlements”. In any event the question has not been the subject of sufficient argument for me such as would allow a proper application of accepted principles to the matter.52

[31] Notwithstanding the MFB’s contentions about the combined effect of Clauses 8, 21 and 28, those arguments extend only to the possibility that matters within Clause 8 and 28 reign in the otherwise “relatively broad” effect of Clause 21.1.3. The MFB’s argument that Clause 8 reduces the provision in Clause 21 that the process applies to “all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement” to something other than the plain language of the phrase depends on acceptance that a supersession statement means that a right accrued pursuant to a predecessor agreement does not continue past the day on which the 2016 Agreement commenced operation, being 18 February 2019, and, no matter how contentious the dispute may be, no dispute can be raised about it. Clause 8 though does not say that. Instead it says merely that this Agreement “supersedes all the provisions in” the 2010 Agreement.

[32] The Macquarie Dictionary provides four definitions for the verb “supersede”:

“1. to replace in power, authority, effectiveness, acceptance, use, etc., as by another person or thing.

2. to set aside, as void, useless, or obsolete, now usually in favour of something mentioned.

3. to displace in office or promotion by another.

4. to succeed to the position, function, office, etc., of; supplant” 53

[33] Each of the definitions is apt in consideration of the meaning of the word as it is used in Clause 8. Each is consistent with the proposition that the 2010 Agreement now stands over, replaces or succeeds the former. There is, though, a tension unresolved by these definitions between a document which is a continuum of earlier ones, even though it succeeds or replaces the former document and a document which takes the employment in an entirely different direction, perhaps contrary to the rights and obligations established by the former document. Consideration of the form and content of the 2016 Agreement shows that rather than repudiating the past, or disconnecting from it, the Agreement strongly connects with and expects to continue things established in earlier agreements.

[34] The dispute term, to the effect that disputes may be raised about “… all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement …” is not just “relatively broad”, it is breathtakingly broad.

[35] It does not just allow disputes to be raised about some matters pertaining to the employment relationship, or merely those with a temporal connection with the 2016 Agreement. Rather it allows disputes to be raised about all matters pertaining to the employment relationship. The disputes must be connected with the employment relationship, which in the case of some employees of the MFB will be the accumulated history of 20 or 30 years employment. Whether it is feasible or reasonable to raise a dispute about all of these things is not the subject of this decision; however, the drafters of the Agreement plainly intended a wide scope for the term. Given that the 2016 Agreement was made well after the Full Court’s decision in UFU v Country Fire Authority in 2015 it is unlikely the drafters were unaware that the benchmark for construction of the dispute term had been held to be that “[i]n order to determine whether a particular matter is covered by the dispute resolution procedure one has merely to ask whether the matter pertains to the employment relationship”.

[36] There is certainly no evidence to the effect that the parties to the 2016 Agreement intended the term to have a narrow application. If the term was to be construed as meaning “… all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement provided the matter arises after the date on which this agreement commenced operation …” then those would be the words expected to be used in the Agreement.

[37] Consideration of these matters leads to a finding that the proper construction of Clause 8 is to be read as providing that the 2016 Agreement displaces or succeeds the 2010 Agreement and that the rights of the parties are to now be found within 2016 Agreement. Pointedly there is nothing within Clause 21 or elsewhere that would allow a blanket finding that disputes about events occurring or decisions made before 19 February 2019 are not disputes within the scope of Clause 21.

[38] In three sentences, Clause 28 “saves” or preserves certain things. Nominated reductions in benefits may not occur as “a result of translation of training qualifications”; “all accrued entitlements” will not be affected by the making of the agreement; and an existing employee’s participation in a selection process or who has previously been appointed to a position is not to suffer a detriment.

[39] It is unnecessary to resolve the question of whether Messrs Gili or Rhodes either had an “accrued entitlement” or were “participating in a selection process for promotion” for the reason that the clause is – in the context of the Dispute Resolution procedure – likely unnecessary. What is preserved by Clause 28 are the things set out within it. Those acts of preservation – even if it can be inferred that these are the only previously operative rights or entitlements preserved by the clause (which, it must be said, is doubtful) of themselves do not displace what should otherwise be the plain reading of Clause 21.1.3.

[40] That clause very plainly gives rise to a right for a dispute to be raised and progressed on the basis that it is a matter “pertaining to the employment relationship, whether or not express provision for any such matter is made” in the Agreement. All that is required is “to ask whether the matter pertains to the employment relationship”. Neither Clause 8 nor Clause 28 limit the operation of the term within Clause 21. It is, indeed, “relatively broad”. Accordingly, the jurisdictional question must be answered in the affirmative:

Q: Does the Commission have jurisdiction to determine any of the questions posed by the UFU?

A: Yes.

2010 Agreement Dispute – Questions for Determination 1, 2 and 3

[41] Mr Leversha, the MFB’s Human Resources Director, gave undisputed evidence that a person undertaking the Commander course is paid at their Senior Station Officer classification regardless of whether they were acting up in the rank of Commander immediately prior to commencing the course or not. Mr Leversha’s evidence is that employees “continue to hold the rank of, and are paid at, the Senior Station Officer classification until such time as they are promoted to a vacant Commander position at the conclusion of the Commander Course”. 54

[42] A proper construction of the Questions for Determination posed by the UFU requires a consideration of whether a distinction may be drawn between a person acting up in a position and one who holds the rank substantively. It also requires consideration of when and how a person is appointed to the position.

[43] It is to be noted that relevant parts of the 2016 Agreement differ from the 2010 Agreement in important respects.

[44] The UFU submit, in relation to the wages table in Clause 96.1 of the 2010 Agreement that “the reference to "12 months" and "24 months" must be read as including the performance of work in the position or role of a Commander, including work as an acting Commander, performed immediately prior to promotion to the substantive rank of Commander”. 55 Ascertainment of such reading requires a construction of the term beginning with the ordinary meaning of the words, read in context.56 The MFB do not see an especial purpose in this phrasing and submitted that the words “simply mean an officer on the commencement of their appointment in the classification of a Commander. Similarly, the words “Commander after 12/24 months” simply mean an officer who has been appointed to the classification of a Commander and has been in that role for at least 12 months or 24 months.”57

[45] The union contends that when the 2010 Agreement deals with “Commander” in each of Clauses 69.1.11, 71 and Schedule 5, establishing a position of Commander as well as providing a job description/role objective, it is observable that “[n]either the rank of Commander, nor the job description/role objective recognise any distinction between a Commander "on commencement", "after 12 months" or "after 24 months".” 58 The MFB though take note of the employment in the 2010 Agreement of different terminology regarding how one comes to be in a particular classification:

“The use of the words “appointed” in cl.69.1.11, and “commencement” in cl.96.1, are critical, and instructive. An SSO must be “appointed” as a Commander. An acting Commander is not “appointed” as a Commander. There is only one substantive position of Commander contemplated by the 2010 Agreement, and that is set out at cl.71 and defined in cl.69.1.11. There is no position of “Acting Commander”. Rather, there is a process under which an SSO may “act up” into the next most senior classification, which happens to be, for that classification of an SSO, the Commander role (cl.70.8.2 and cl.98.3). Critically, the employee acting up to the higher classification retains their substantive role (cl.70.8.3). That is, they are not an appointed Officer to the role of Commander and simply do not fulfil the definition of a Commander in cl.69.1.11 until they are appointed (following the completion of the Commander Course). Any period acting up as Commander occurs prior to their “commencement” in the substantive role.” 59

[46] The MFB consider that the UFU’s construction would effectively insert additional words into the wages table in Clause 96.1 such that the first row of Commander wages would read:

““Commander on commencement including any period acting up in the role of Commander”. These words do not appear in cl.96.1. The parties could easily have inserted words into cl.96.1 to expressly provide for any period of acting up to be included in determining the Commander pay point – they simply did not do so.” 60 (underlining in original)

[47] The UFU also refers to how the term “Commander” is used within the 2010 Agreement contending that it not only refers to the rank of the person concerned but also the role or position of the Commander:

“34. It is accepted that cl 69.1.11 defines a Commander to be person appointed to the substantive rank of Commander. However, the term "Commander" is also used in the Operational Agreement to refer to the role or position of Commander (including an Acting Commander), rather than the rank.

35. Notably, Schedule 2 relating to "Minimum Crewing" forms part of the Operational Agreement pursuant to cl 36. Clause 1 of Schedule 2 provides a requirement that the "Central, Western, Northern, and Southern Zone shall each have a Commander on Duty and on shift as per the minimum crewing chart (attached}". There, the reference to "Commander" includes Acting Commanders. So much is clear from the following sentence which provides that "However no more than two SSOs may be acted up into Commander positions at no more than two of the above four Commander locations at any time."

36. Likewise, the entitlements for Commanders set out in sub-cll 71.2 and 71.3 pertain to both Acting Commanders and those appointed to the Commander rank in accordance with cl 7.8.3.1.

37. Clause 82.1.3 provides for a operational position of a centralized dedicated rostering officer. That position is specified as being available only to a person "who holds the minimum classification of Commander". The reference to the "classification of Commander" suggests it is available only to a person who has been appointed to the substantive rank of Commander. However, even this is not without doubt in circumstances where this position was filled by Mr Rhodes whilst an Acting Commander.” 61

[48] Reference is also made to the wage rate relativities established for the Commander position and its three pay points. The UFU notes in support of its arguments that the relativities were established through a bargaining process unconnected with stricter considerations of work value:

“38. Context for the meaning of the contested phrases may also be obtained from within cl 96.1. Through a bargaining process, the parties to the Operational Agreement have identified a "Commander on commencement" to have a relativity of 151.6% vis a vis a Qualified Firefighter. Likewise, a "Commander after 12 months" has a relativity of 160.4% and a "Commander after 24 months" a relativity of 169.19%. These three pay points do not reflect different work requirements or "work values" in the sense referred to in the "Work Value Changes Principal" (see for example Safety Net Review- Wages, June 2005 (2005) 142 IR 1 at 125, principal 6 "Work Value Changes"). That is, all Commanders and Acting Commanders perform the role of a Commander, no matter how long they have been in the role. The particular requirements of the role do not increase with the passage of time. However, by identifying different relativities based on the period of time acting as a Commander, the parties have recognised that value of the work performed by a Commander increases over time. That is, value and correlating remuneration for a Commander increases at 12 and 24 month increments as the employee obtains greater experience in the role.

39. The differences in the relativities between a Commander "on commencement", "after 12 months" and "after 24 Months" are significant. As at the maximum pay rate identified in the Operational Agreement there is a difference of $120.93 per week between a "Commander on commencement" and a "Commander after 12 months". There is a commensurate difference of $120.67 per week between a "Commander after 12 months" and a "Commander after 24 months". This pay disparity is comparable to the difference between a Station Officer and a Senior Station Officer (being $137.21 per week).” 62

[49] The union also contends that the 2010 Agreement needs construction in the context of a change made in the 2016 Agreement, in which it is now clear “that the parties have placed a significant value on experience”:

“There can be no doubt that the parties have placed a significant value on the experience an employee obtains working in as a Commander. Consistent with cl 70.8.3, the MFB now recognises that an employee acting up into a Commander role will be entitled to those incremental increases to his or her enterprise rate.” 63

[50] While it is contended by the UFU that the 2016 Agreement now places a “significant value on experience”, what that value is, and when it is or is not activated remains in dispute. The MFB argue that the change only clarified the right to progress through pay points whilst one is an acting Commander. 64 The change in the text of the 2016 Agreement is the insertion of a term providing for “incremental progression within the higher rank”.65

[51] After consideration of the operative provisions it is apparent from the 2010 Agreement that there is a clear distinction between a person substantively appointed to a role and a person who is only acting in the role.

[52] Clause 70.8.1 states an objective of improving opportunities for career development as well as providing a mechanism to enable that objective. The person acting up maintains their substantive rank (Cl.70.8.3) with the limited exceptions being that they receive all remuneration entitlements and conditions flowing from the higher rank (Cl.70.8.3.1).

[53] It is also be noted that the higher duties Clause 98 provides that an officer may act in place of a person of the next higher rank (Cl.98.3) and in doing so they “shall be paid at the rate of the officer of the next higher rank” (Cl.98.4) with the payment for higher duties to be “paid for the entire period of higher duties performed” (Cl.98.6).

[54] It is further noted that while “acting up” is defined by the 2016 Agreement, “higher duties” is not. Acting up in positions is as defined by the terms of Clause 70.8.2 being “when an employee acts in the next most senior classification to their current classification, under the terms and conditions of this clause”.

[55] The 2010 Agreement provides that a “Commander” is “an appointed officer from the rank of SSO with a minimum of one (1) year operational experience in the rank of SSO and a minimum of one (1) year experience as an Officer in a day duty department.” (69.1.11).

[56] Clause 70.4 deals with the subject of “Officers promotional courses” providing that “All employees other than Commanders who complete a promotional course shall be promoted to the relevant rank immediately upon graduation”. It is potentially relevant to consider the term of that clause against the evidence given by Mr Laversha to the effect that after completion of the Commander course, promotion to the rank of Commander will be subject to a vacant position being available, with it being the case that since the establishment of the Commander rank every person who has completed the course has been promoted to the rank of Commander. 66

[57] The focus of the UFU submissions has been significantly upon Clause 96.1, being part of Clause 96 (wages). That clause merely says, “the rates to which employees are entitled (enterprise rates) at the relevant dates are:”, with it then being stipulated as follows (so far as is relevant):

WAGES PER WEEK

Classifications and Increments	Relativity	Current Weekly Wage	1 November 2015	1 May 2016	1 November 2016	1 May 2017	1 May 2018	1 May 2019
5%	5%	1.5%	1.5%	3%	3%

…

Commander on commencement

151.60%

2,082.1

2,186.28

2,295.59

2,330.03

2,364.98

2,435.93

2,509.00

Commander after 12 months

160.40%

2,203.1

2,313.26

2,428.92

2,465.35

2,502.33

2,577.40

2,654.72

Commander after 24

months

169.19%

2,323.7

2,439.96

2,561.96

2,600.39

2,639.39

2,718.57

2,800.13

[58] Although it is understandable why the UFU would focus upon the wages clause for this matter, the language of the clause is so clipped as to be unhelpful in determination of the dispute presently before the Commission. There is simply nothing within the clause which would resolve the matter of whether service prior to formal or substantive appointment to a rank is to be taken into account in assessing the wage rate a particular Commander may be entitled to. No other part of the 2010 Agreement assists in the matter either.

[59] Instead the dispute needs to be resolved on the basis of what is stated within the other clauses mentioned. The totality of the 2010 Agreement indicates there is a sharp distinction between classifications and ranks. One attains a rank after completion of a formal process and not otherwise. A person acting up continues to hold their substantive classification with only limited exceptions (with those exceptions going to the matters of remuneration, entitlements and conditions). A person acting up is to wear the insignia of the higher rank, except for helmet identification, so as to avoid confusion (Cl.70.8.14) and unless otherwise agreed between the parties someone acting up is not to be recalled “into the classification which they are acting up into” (Cl.70.8.15), with the reference to being recalled presumably meaning “recalled to duty” – for example see cl.80.2 and 108.2.2.

[60] These matters in combination lead to the proposition that a person who is acting up is engaged in a fiction of sorts in which they present to the world mostly as a Commander, but not completely, for example, with the lack of helmet identification. They will perform some, but not all the duties of the position and will be remunerated on a better basis than their substantive position. These variations from substantive status and substantive appointment are likely important not only to the person acting up, but those around them, and are consistent with a situation in which the person acting up is temporarily provided with extended duties and is better paid for their efforts, as well as being given the opportunity to show their mettle and build their claims for substantive appointment to the higher level, while not being actually at that higher level.

[61] The first of the Questions for Determination is framed as whether the MFB is required to recognise acting service for the purposes of the substantive appointment. On the basis of the foregoing analysis that question must be answered in the negative. There is plainly no obligation within the 2010 Agreement upon the MFB to recognise the service for establishing a person’s pay point.

[62] The second and third of the Questions for Determination are framed as alternatives to the first. Question 2 asks whether the MFB, instead of being required to recognise the service is permitted to do so. The third of the questions asks whether, if the MFB is permitted to recognise acting service, should it do so?

[63] As part of its case in relation to question 2 the UFU points to an acknowledgement on the part of the MFB that it has in the past commenced ACFO employees at a higher pay point following a period of acting up, 67 but noting that a justification was put forward by the MFB to the UFU rejecting the possibility for Commander employees. In doing so, the UFU reports the MFB as distinguishing the operative effect of the ACFO Agreement from the 2010 Agreement:

“It says that Schedule 1 of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 (ACFO Agreement) is distinguishable from the cl 96 of the Operational Agreement. Specifically, it says that the reference in the ACFO Agreement to progression to a higher pay point occurring "no later than" the specified times (12 or 24 months) creates a discretion. It suggests that under the Operational Agreement, no such discretion arises.” 68

[64] These assertions are a reference to communications to the UFU about the subject in November 2017. After noting to the union that it was the MFB’s clear view that there “is no historical custom of paying Commanders above the base pay point when promoted to that rank”, the correspondence turns to the situation with ACFO employees:

“As noted in the meeting on 23 October, there have been instances in the past of commencing Assistant Chief Fire Officers (ACFOs) at a higher pay point following a period of acting up. The circumstances surrounding these payments are distinguishable from the current dispute for the following reasons:

1. ACFOs are covered by a different industrial instrument, namely the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010 (the ACFO Agreement).

2. Schedule 1 of the ACFO Agreement provides for Annual Wages across three pay points. Progression through these pay points is left to the discretion of MFB, save for the fact that progression must occur "no later than" the specified times (12 or 24 months).

3. This is distinguishable from the corresponding clause, clause 96, in the Operational Agreement, which limits the discretion MFB has in progressing through Commander pay points. Specifically, the agreement only allows for progression "After 12 (or 24) months".

4 The distinction in these clauses clearly operates to afford M FB discretion in ACFO pay point progression, whilst limiting it in respect of Commanders. ACFO progression must happen at some time before the specified times. whilst Commander progression must happen after the specified times

5. Unlike ACFOs, Commanders cannot be substantively appointed to the rank, unless they are accepted on, and complete, the requisite training course.

6. In effect, this means that acting ACFOs may be appointed to the rank substantively, without any break in continuity in recognition of their skills and experience. Conversely, Commanders are not deemed to have the requisite skill or experience. until they complete the Commanders course.” 69

[65] The UFU then argues:

“53. The distinction between Schedule 1 of the ACFO Agreement and cl 96 of the operational agreement is without any relevant difference. The MFB is required to progress ACFO's to the higher pay point at 12 and 24 months. If it fails to do so it will be in breach of the ACFO Agreement and s 50 of the FW Act. Likewise, the MFB is required to progress Commanders to higher pay points after 12 and 24 months. Again, failure to do so will amount to a breach of the Agreement and a contravention of s 50 of the FW Act.

54. It is submitted that the MFB can (and, for the reasons discussed below should) recognise the periods Commander Rhodes and Commander Gili spent acting up to the role of Commander, prior to their appointment to the substantive rank of Commander, for the purpose of cl 96.1 of the Operational Agreement.” 70

[66] In relation to Question 3 the UFU merely submits:

“55. The MFB has enjoyed the increased value that Messrs Gili and Rhodes have brought to their work as Commanders by reason of their experience acting up into that role. That is a value which the parties have recognised and quantified by the increased relativities for Commanders "after 12 months" and "after 24 months".

56. The MFB should therefore recognise the value of that service performed by Messrs Gili and Rhodes.” 71

[67] The MFB’s response to these contentions are that what has been put forward by the UFU amounts to an extra claim, contrary to clause 23 of the 2010 Agreement which provides that there “shall be no extra claims by either party”. 72 If the Commission were to decide in favour of the UFU that would be a modification of the way that the 2010 Agreement was intended to apply, which would be an inconsistent decision for the purposes of s.739(5) of the Act.73 As such, a decision that Clause 96 did not require recognition of service, coupled with a decision that the MFB may or should exercise a discretion would itself be inconsistent with Clause 96 and would modify the operation of the clause, with such a modification being prevented by s.739(5). As a result, the Commission cannot decide questions 2 and 3 in favour of the UFU.74

[68] The argument before the Commission on the matters within questions 2 and 3 has been basic and there is insufficient evidence before me to conclusively determine them. I doubt that the contention that a claim that an employer should exercise some measure of discretion rises to the level of it being an inconsistency under either s.739(5), let alone with any part of the 2010 Agreement, at least in the context in which it arises in this dispute. I have been directed to nothing within the 2010 Agreement which would prevent the MFB from recognising acting service for the purposes of wages table and indeed there appears to be nothing within the Agreement itself that would prevent the MFB from determining it will provide benefits greatly in excess of that stipulated in the Agreement because of some discretion it chooses to exercise. There has been no comprehensive analysis given to me about discretions capable of being exercised (or not) under the Agreement, the Fair Work Act2009 (Cth) or the legislation creating the MFB. There has only been a cursory analysis provided on the subject thus far. For that reason, bearing in mind the high-end complexity associated with this Agreement, as well as the parties’ propensity for litigation about its content, one should heed the wise aphorism about rushing in where angels fear to tread. Accordingly, Questions for Determination 2 and 3 are not answered.

2016 Agreement Dispute – Questions for Determination 4, 5 and 6

[69] While noting that the 2016 Agreement wages clause, Clause 133 is in similar terms to Clause 96 of the 2010 Agreement, the union contends that there are several important differences and that other differences between the 2010 Agreement and the 2016 Agreement provide a “slightly different context” to the relevant clauses. 75 The union highlights three changes:

• The preamble to the wages table has changed. Instead of stating “The rates to which employees are entitled (enterprise rates) at the relevant dates are:”, it now reads “Each employee shall be employed in one of the following classifications and be entitled to the following rates (enterprise rates) at the relevant dates”. That difference is important since it switches the test to one of being “employed in” a classification:

“14. The reference in cl 133.1 to variations to an employee being "employed in one of the following classifications" is indicative of the term "Commander" being used in that clause to mean the role or position of Commander, rather than the substantive rank. The concept of being "employed in" a classification may be contrasted to being "appointed to" a classification or rank.7 A firefighter will be "employed in" the classification of Commander when they are an Acting Commander, notwithstanding that that they have not been appointed to that substantive rank. This is consistent with an Acting Commander carrying out his or her work in accordance with the Commander Job Description at Schedule 5 to the 2016 Agreement.

15. By way of example, Richard Gili was employed in the position of Acting Commander - Operational Communications between August 2010 and October 2012.8 In August 2010 Shane Rhodes commenced the position of Acting Commander - Western District Infrastructure. He subsequently continued as the Acting Commander assigned to the Western District Major Hazard Facility project.9 Both men were employed in the classification of Commander in fulfilling those roles.” 76

• There is a new heading in the first column of the wages table. While previously blank, the column is now headed “Classifications and Increments”. This is important for the purposes of construction since:

“Read in the context of being "employed in" a particular classification or increment, the heading "Classifications and increments" must be understood as referring to employment in the specified classifications, rather than appointment to a particular substantive classification. This new heading otherwise does nothing to effect the meaning of the clause.” 77

• Thirdly, the wages table now includes three wage rates for ACFO employees, being Assistant Chief Fire Officers. Whilst previously employed under a separate enterprise agreement, the 2016 Agreement incorporates their classifications, and

“18. The MFB has previously acknowledged that there have been instances of Assistant Chief Fire Officers commencing at a higher pay point following a period of acting up. The inclusion of three pay points for firefighters employed in ACFO is discussed below with respect to the discretion to recognise service as an Acting Commander.

19. The terms of the ACFO pay points also highlight the different approach taken by the drafters of the Agreement with respect to the recognition of prior employment in a particular classification. The second and third pay points for ACFOs are directed towards a period of 12 months or 24 months "after appointment". This may be contrasted with the language adopted for the Commander pay points, which simply refer to "Commander after 12/24 months".” 78

[70] The reference in the foregoing passage regarding discretion being exercised in relation to movement within ACFO pay points is contested, with the UFU reporting that the MFB “says that the reference in the ACFO Agreement to progression to a higher pay point occurring "no later than" the specified times ( 12 or 24 months) creates a discretion. It suggests that under the Operational Agreement, no such discretion arises”. 79 The UFU contests the existence of such a discretion under the ACFO Agreement, characterising the need for recognition of acting service as a requirement:

21.4. While the procedures and steps under this clause, and any appeal, are being followed or pursued work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

21.5. A dispute may be submitted, notified or referred under this clause by the UFU, an employee or the employer.

21.6. This dispute resolution process may be applied to disputes regarding matters of a health and safety nature, provided that a dispute may not be submitted by a party under this clause if that party already required a VWA Inspector to attend the workplace arising from the issue resolution procedure from clause 3 of schedule 1.

21.7. A decision of FWC under this clause may be appealed as of right to a Full Bench. Any decision of the FWC may be appealed. A dispute is not resolved until any such appeal is determined.

21.8. Employees may choose to be represented under this clause.

…

28. SAVINGS

The terms of this agreement shall not operate to cause an employee to suffer a reduction in ordinary hours of work, paid leave, long service leave or sick leave or other entitlements, or a disadvantage as a result of translation of training qualifications.

All accrued entitlements at the date of commencement of this agreement relating to matters such as sick leave, annual leave, long service leave, etc will not be affected by the making of this agreement.

An existing employee who at the time of approval of this agreement, is participating in a selection process for promotion or who has previously been appointed to a classification, shall not through the introduction of the definitions in this agreement, suffer any detriment.

…

29. NO EXTRA CLAIMS

29.1. There shall be no extra claims by any party.

…

133. WAGES

133.1. Each employee shall be employed in one of the following classifications and be entitled to the following rates (enterprise rates) at the relevant dates:

Classifications and Increments	Relativity	Current Weekly Wage	1 November 2015	1 May 2016	1 November 2016	1 May 2017	1 May 2018	1 May 2019
5%	5%	1.5%	1.5%	3%	3%

…

Commander on commencement	151.60%	2,082.1 7	2,186.28	2,295.59	2,330.03	2,364.98	2,435.93	2,509.00
Commander after 12 months	160.40%	2,203.1 0	2,313.26	2,428.92	2,465.35	2,502.33	2,577.40	2,654.72
Commander after 24 months	169.19%	2,323.7 7	2,439.96	2,561.96	2,600.39	2,639.39	2,718.57	2,800.13

133.2. Overtime

In all cases when calculating overtime the rate to be used will be 90.93% of the enterprise rate.

134. HIGHER DUTIES

134.1. To ensure the chain of command, where there is an employee absent, the MFB will fill the absence with an employee at the equivalent classification or where this Agreement allows, the MFB will act up an employee.

134.2. A Leading Firefighter may act in place of a Station Officer.

134.3. A Leading Firefighter may act as a Station Officer shall be paid at the rate of a Station Officer.

134.4. A Station Officer or above may act in place of an employee of the next higher rank.

134.5. A Station Officer or above, may act at the next higher rank, shall be paid at the rate of an employee of the next higher rank.

134.6. Employees in charge of an appliance and who must have command and control qualifications will be paid at least the Leading Firefighter Rate.

134.7. Any payment for higher duties shall be paid at the rate of the employee that they are acting up for, for the entire period of higher duties.

134.8. An employee who is performing higher duties before commencing a period of leave and performs higher duties after their leave shall be entitled to have their leave paid at the higher duties rate.

134.9. To avoid any doubt, in all circumstances where an employee is performing higher duties they shall receive all applicable conditions and entitlements applicable to the higher position. This includes but is not limited to incremental progression within the higher rank and in such a way as that the time to achieve the ranks next increment may be made up of more than 1 separate higher duty blocks.

134.10. Where an employee is acting into a Commander role, they shall receive use of a vehicle as though the employee held the substantive position.

134.11. Where an employee is undertaking higher duties in a position which is paid at a rate of less than 10% more than their substantive position, the employee will be paid a 10% higher duties allowance for all time worked.

134.12. A Commander may act in place of an ACFO for a period of time. An employee who acts as an ACFO for any period shall be paid at the rate of the employee that they are acting up for, for the entire period of higher duties.

134.13. An ACFO may act in place of a DCFO for a period of time. An employee who acts as a DCFO will be paid at the rate of a DCFO for the entire period of higher duties.

134.14. An employee who is performing higher duties before commencing a period of leave and performs higher duties after their leave shall be entitled to have their leave paid at the higher duties rate.

134.15. An employee who has performed higher duties for longer than 1 month and who at the time of arranging leave were of the understanding that they would remain on higher duties immediately prior to the leave, shall be entitled to have their leave paid at the higher duties rate.

134.16. To avoid doubt, performing higher duties at any rank is entirely at the

election of the employee concerned.”

1 Exhibit UFU 2, Outline of Submissions (Merits), 17 May 2019, [2].

2 AE881005.

3 AE501845.

4 Exhibit MFB 4, Witness Statement of Shane Laversha, [68], [57]; Exhibit UFU 5, Witness Statement of Shane Rhodes, [9].

5 Exhibit UFU 4, Witness Statement of Richard Gili, [5].

6 Exhibit MFB 4, [60].

7 Ibid, [62].

8 See Exhibits UFU 4, [6], and MFB 4, [63]; Gili puts his last acting Commander period as having commenced in August 2010; Laversha puts it has having started on 6 December 2010. The discrepancy is not material to this decision.

9 MFB 4, [68]; Gili puts that his substantive appointment commenced both “a few days prior to the Commander Development program”, (UFU 4, [17]) and that he was promoted to the rank of Commander in December 2012 (UFU 4 [6]).

10 MFB 4, [67].

11 Exhibit MFB 4, [45].

12 Ibid, [49], Commander Rhodes puts the commencement of this period of acting up commencing 27 August 2010, (UFU 5, [6]) this discrepancy does not affect the substantive decision.

13 Ibid, [50], Commander Rhodes puts the finish date for this period of acting up as 21 September 2012 (UFU 5, [6]) again this discrepancy does not affect the substantive decision.

14 Exhibit MFB 4, [54], Commander Rhodes puts commencement of the course at 21 September 2012 (UFU 5, [9]), this discrepancy does not affect the substantive decision.

15 MFB 4, [55].

16 Exhibit UFU 2, [2].

17 Ibid, [14] – [15].

18 Ibid, [16].

19 Exhibit MFB 1, Outline of Submissions (Jurisdiction), 17 May 2019, [5].

20 Ibid, [8].

21 Ibid, [14].

22 Exhibit MFB 2, Outline of Submissions (Merits), 7 June 2019, [10].

23 Ibid, [10], [30].

24 Exhibit MFB 1, [15].

25 Ibid, [16].

26 Exhibit UFU 2, [7], [10].

27 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

28 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

29 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

30 SDA v Big W Discount Department Stores PR924554 at [23].

31 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

32 Ibid [47].

33 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

34 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

35 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

36 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

37 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

38 [2017] FWCFB 3005.

39 Ibid [114].

40 [2017] FWCFB 4537.

41 Exhibit MFB 1, [6], with reference to de Jonge v ABC[2010] FWAFB 4869 at [17], CEPU v Jemena Asset Management Pty Ltd[2015] FWC 1189 at [12] (Gostencnik DP) (Jemena Asset Management), CFMMEU v Oaky Creek Coal Pty Ltd[2018] FWC 7238 at [13] and [32] and CFMEU v North Goonyella Coal Mines Pty Ltd[2016] FWC 8360 at [22] (North Goonyella).

42 Ibid, [7].

43 Exhibit MFB 1, [16].

44 See for example, Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), (2004), AIRC FB (unreported) Print PR95274349.

45 Exhibit MFB 1, [8].

46 MFB 1, [9].

47 See, for example, CEPU v Jemena Asset Management Pty Ltd[2015] FWC 1189, [22] – [25]; Launders v Officeworks Pty Ltd[2015] FWC 5692 [49] – [52]; CFMEU v North Goonyella Coal Mines Pty Ltd[2016] FWC 8360, [70] – [78].

48 AE881690.

49 United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1, (2015) 247 IR 167, [246].

50 Exhibit MFB 1, [14].

51 Ibid, [16(d)].

52 See, for example, Attorney-General (Queensland) and Another v Australian Industrial Relations Commission and Others (2002) 213 CLR 485, (2002) 117 IR 52.

53 The Macquarie Dictionary Online, accessed 25 September 2019.

54 Exhibit MFB 4, [35] – [36].

55 Exhibit UFU 3, Outline of Submissions (Merits), 11 January 2019, [31].

56 Ibid, [32].

57 Exhibit MFB 2, [31].

58 Exhibit UFU 3, [33].

59 Ibid, [32].

60 Exhibit MFB 2, [33].

61 Exhibit UFU 3.

62 Ibid.

63 Ibid, [40].

64 Transcript, PN 556.

65 Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016, AE501845, Clause 134.9.

66 Exhibit MFB 4, [28], [32].

67 Exhibit UFU 3, [51].

68 Ibid, [52].

69 Exhibit UFU 5, Witness Statement of Shane Rhodes, Attachment SR 7.

70 UFU 3.

71 Ibid.

72 Exhibit MFB 2, [49].

73 Ibid, [46].

74 Ibid, [47].

75 Exhibit UFU 2, [11] – [12].

76 Ibid.

77 Ibid, [17].

78 Ibid.

79 Exhibit UFU 3, [52].

80 Ibid, [53].

81 Exhibit UFU 2, [20]

82 Exhibit MFB 2, [63].

83 Ibid, [64].

84 Ibid, [65].

85 Ibid, [66].

86 Ibid.

87 Ibid, [71].

88 Ibid, [73].

89 Exhibit MFB 2, [67].

90 Ibid.

91 Exhibit MFB 4, [23].

92 Ibid, [27].

93 Ibid, [29]

94 Ibid, [23].

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

[2019] FWC 6632

26 SEPTEMBER 2019

DECISION

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE