United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire Brigade

[2016] FWC 1346

[2016] FWC 1346

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 T/A Metropolitan Fire Brigade
(C2014/7704)

COMMISSIONER WILSON MELBOURNE, 2 MARCH 2016

Alleged dispute regarding term of an enterprise agreement. New alternative RDO arrangement (9 day fortnight). Meaning of the term.

Introduction

[1] An application for the Fair Work Commission to deal with an alleged dispute was made in November 2014 by the United Firefighters' Union of Australia (the UFU), alleging that the Metropolitan Fire and Emergency Services Board (MFB) has not properly applied the terms of the Metropolitan Fire And Emergency Services Board Corporate & Technical Employees Agreement 2013 1 (the Corporate & Technical Employees Agreement).

[2] The matter was the subject of conciliation during 2015, and later an application by the UFU for the Commission to determine the dispute under the provisions of s.739 of the Fair Work Act 2009 (the Act).

[3] The alleged dispute is in connection with decisions made by the MFB about whether particular employees may be permitted to work a 9 day fortnight.

[4] For the reasons set out in this decision, I find that the Commission has jurisdiction to hear and determine the dispute under the terms of the Corporate & Technical Employees Agreement and that I am not satisfied the MFB is not correctly applying the terms of that Agreement.

Background to the dispute

[5] The Corporate & Technical Employees Agreement was approved to operate from 25 December 2013 with a nominal expiry date of 20 December 2015.

[6] When it was approved, the agreement included a new term providing that full-time employees were to work a 38 hour week on the basis of a 19 day month, or, by agreement with the MFB, an 18 day month (or, as it is more commonly referred to, a 9 day fortnight). The clause provides the following;

“55 HOURS OF WORK

55.1 Ordinary hours

(a) The ordinary hours of work of a full-time employee are:

(i) 38 hours per week;

(ii) between the hours of 7.30 a.m. and 6.00 p.m;

(iii) worked over a five day week in a seven day cycle.

(b) With a minimum of half an hour unpaid break for lunch, to be taken between midday and 2.00 p.m.

(c) Within the spread of hours specified in (a) variable start and finish times may be negotiated between the employee and employer to take account of work requirements and personal circumstances.

(d) A paid morning and afternoon tea break of ten minutes each will be allowed.

55.2 Rostered days off

(a) Employees in agreement with the MFB may elect to work their ordinary weekly hours averaged over a nineteen day month

(b) By agreement with the MFB under this agreement employees may work a new alternative Rostered Day Off (RDO) arrangement of an eighteen day month. The new RDO arrangement shall:

(i) Only be initiated where the request for such arrangement is sought by an employee(s).

(ii) Provide an effective arrangement of hours of work within the normal 38 hour week to maintain/improve productivity/service levels and provide an improved work-life balance.

(iii) Be subject to agreement with the MFB.

(iv) Not diminish or disadvantage the employee in relation to existing terms and conditions of employment under this agreement.

(c) The new alternative RDO will be subject to ongoing review. Following consultation with the affected employees where the MFB can demonstrate that a new alternative RDO arrangement has caused a reduction in productivity or service levels, that formed the basis of the MFB approval pursuant to clause 55.2(b)(iii) then the hours of work arrangements that applied prior to the introduction of the new arrangement will apply. To avoid doubt, this clause does not prevent employees raising grievances through the dispute resolution clause in relation to this clause.

(d) With reasonable notice, an employee may opt out of an RDO arrangement at any time following the review date. In such circumstances clause 55.2(i) will apply.

(e) In addition individual employees may seek the new alternative RDO arrangement to assist with individual health matters and carers responsibilities (including caring for his/her child under the age of 5) on a case by case basis and for an agreed period of time. Agreement will not be unreasonably withheld.

(f) The parties agree that no party will make a claim for or review of a 9 day fortnight at a scope broader than a workgroup (such as departments or discrete groups of employees).

(g) Employees working an RDO arrangement will be subject to a roster for days off in each working cycle.

(h) Regarding the new alternative RDO arrangement, the parties agree to review and, if agreed, implement contemporary practices during the life of the agreement to avoid potential associated employee fatigue.

(i) Where a new alternative RDO arrangement is sought by employee(s) their existing arrangement of hours will apply if agreement cannot be reached on the 18 day month.

(j) Where an employee(s) is concerned that the MFB has withheld agreement to an RDO arrangement request, in a manner inconsistent with this clause, the employee -may utilise the dispute resolution process under this agreement.

(k) All RDO arrangements shall consist of hours of work which comply with the Ordinary Hours of Work in clause 55.1.

(l) RDO's will continue to be accrued until taken. RDO's must be taken within 6 months or paid out at the ordinary rate of pay.

(m) The MFB cannot require an employee to enter into an RDO arrangement.

(n) Employees who are currently working under previous hours of work arrangements (e.g. previous 9 day fortnight arrangements) will continue under such arrangements during the life of this agreement unless they choose otherwise.”

[7] The matters in dispute between the UFU and the MFB go to whether or not the MFB has followed the requirements set out in clause 55.2(b). To that end, the UFU has proposed a Draft Order to be made by the Commission in the following terms;

“The Fair Work Commission orders as follows:

1. Applications for 9 day fortnight / 18 day month arrangements lodged under the MFESB Corporate and Technical Employees Agreement 2013 that have been lodged previously or will be lodged in the future shall be reassessed or assessed by the MFB to ensure that they comply with their obligation under clause 55.2(b)ii of that agreement to provide employees an effective arrangement of hours within the normal 38 hour week to maintain/improve productivity service/service levels and provide an improved work.

2. Application shall be assessed fairly and in good faith, which, in this instance means that the applications should be approved where there is no negative impact to the employer in terms of negative productivity and there is a benefit to the employer.

3. Applications provided in evidence that have been established to have no negative impact on productivity or service levels shall be approved provided that material circumstances in relation to the applications have not changed.”

[8] The UFU’s contentions include that the MFB has not honoured the term of the Corporate & Technical Employees Agreement because it took a certain view about the test in clause 55.2(b)(ii) that requests to work a 9 day fortnight, in order to be approved, “provide an effective arrangement of hours of work within the normal 38 hour week to maintain/improve productivity/service levels and provide an improved work-life balance”. The UFU argues that the MFB’s application of this test is not consistent with the language of the agreement.

[9] For the purposes of consistency, and ease of reading, these requests will be referred to in this decision as requests for a “New Alternative RDO Arrangement”.

[10] Since the agreement was approved in December 2013, and by the time of the hearing, 80 individuals had made applications to work a 9 day fortnight, with 25 making second applications and 4 people making third applications. 2 Evidence from one of the MFB witnesses, Danielle Byrnes, Executive Director, People and Culture, referred to 7 applications having been approved by the MFB.3

[11] Section 739 of the Act provides for the Commission to deal with a dispute if a term such as clause 55 requires or allows such dealing. Subsection 739(6) requires that the Commission may only deal with a dispute on application by a party to the dispute, which threshold is met by the UFU’s application. In addition, s.739(3) requires that the FWC not exercise any powers limited by the Dispute Resolution Procedure; and s.739(4) provides the FWC may arbitrate the dispute in accordance with the term if the parties agreed that such may be done. Subsection 739(5) provides the FWC must not make a decision that is inconsistent either with the Act or with the Corporate & Technical Employees Agreement.

[12] Clause 16 of the Corporate and Technical Employees Agreement provides that the procedure set out therein will apply to certain disputes as follows;

“16 DISPUTE RESOLUTION

16.1 The following dispute resolution procedure will apply to any dispute about a matter arising under this Agreement or a dispute about any matter for which express provision is made in this agreement, or a dispute about any matter pertaining to the employment relationship in respect of those to whom the Agreement applies, or a dispute in relation to the National Employment Standards with exception to matters raised in accordance with Schedule 5 where determination of the committee is final.”

[13] The remainder of the Dispute Resolution clause includes a process by which disputes are to be discussed between the parties. Clause 16.3(f) allows for disputes to be elevated to the Fair Work Commission, and provides;

“(f) Step 5 - If the matter is not settled following progression through the disputes procedure it may be referred by the Employee, the union or the employer (who are party to the dispute) to the Fair Work Commission (FWC). FWC may utilise all its powers in conciliation and if not resolved arbitration to settle the dispute as set out in the Fair Work Act 2009 (as amended).”

[14] I am satisfied that the alleged dispute notified by the UFU is about a matter arising under the Corporate & Technical Employees Agreement and that there is jurisdiction for the Commission to determine it.

Construction of the Agreement

[15] Interpretation of enterprise agreements requires construction of the words of the instrument, with the Full Bench in AMIEU v Golden Cockerel Pty Ltd 4 (Golden Cockerel), setting out the principles for such 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;

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act 5 does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

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

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

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

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

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

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

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

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

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

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

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.

Submissions and evidence

[16] The UFU submitted the following;

• The clause provides no process for approval; 6



• In March 2014, the MFB issued a guidance note outlining a process for requests under the clause, as well as setting out criteria for their approval; 7



• “Application forms state that the process for approval of 9 day fortnight applications is that Executive or operational managers are required to determine whether or not rostered day off arrangements can be adequately accommodated within their departments. Managers are then required to provide recommendations regarding whether or not applications should be approved. Applications for nine day fortnight arrangements are then either approved or rejected by the relevant Executive director”; 8



• “During the first half of 2014 a number of employees reported concerns that applications were not being fairly considered. Employees were particularly concerned that applications were rejected at Executive Director level despite being supported by operational managers who considered that approval of such arrangements would not negatively affect productivity or service levels”; 9



• In endeavouring to resolve the dispute, the “UFU has put forward a view that all applications must be considered in good faith and that applications should be granted where granting the applications will not lead to a demonstrable reduction in productivity or service levels. The MFB did not agree to grant the requests where it could be not be demonstrated that doing so would impact negatively upon or productivity or that they had any obligation to consider requests in fairly or in good faith.” 10

[17] In support of its case, the UFU brought forward evidence from three of its members, all of whom had their requests to access a New Alternative RDO Arrangement refused;

• Theo Ligris, an employee in the Accounts Payable department;



• Vicki Pyliotis, who works in the Information and Communication department; and



• Steva O’Hanlon, who works in the Contracts and Procurement department.

[18] Each of the UFU witnesses put forward, to varying degrees, their view that the MFB had not sufficiently considered their circumstances, or that they could continue to be as productive as was needed if they moved to a New Alternative RDO Arrangement.

Consideration

[19] I turn now to the proper construction of the Corporate & Technical Employees Agreement, and in doing so will refer to and follow the Golden Cockerel principles.

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

[20] It has not been contended that the Acts Interpretation Act 1901 should apply, and I have not had regard to its provisions in my decision.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

[21] The matter in dispute is within Clause 55.2(b) which I consider has a plain meaning and does not contain an ambiguity. In forming that view, I have had regard to the entirety of clause 55, as well as the remainder of the Corporate & Technical Employees Agreement and the evidence that is before me.

[22] Clause 55.1 sets out several different rights and obligations for the respective parties;

• There is to be a 38 hour week, worked over a five day week in a seven day cycle. The 38 hours are to be worked within a span of 7.30am to 6.00pm;



• Variable start and finish times may be individually negotiated, provided those times are within the aforementioned span of hours; and



• There is to be a minimum unpaid meal break to be taken within a specified time range; and there are to be paid morning and afternoon tea breaks of 10 minutes each.

[23] Clause 55.2 appears on its face to provide three important mutual rights and obligations;

• By their election, employees may work a 19 day month (clause 55.2(a)). That election is conditioned by several, but not all of the remaining sub-clauses in clause 55.2, namely sub-clauses (d), (g), (i), (j), (k), (l), (m) and (n).



• Through the mechanism that is the subject of this dispute, there is “a new alternative Rostered Day Off (RDO) arrangement” of an 18 day month or 9 day fortnight arrangement which may be worked. That new alternative is created by clause 55.2(b), and is conditioned by each of the remaining sub-clauses in clause 55.2, namely 55.2(b) – (n), both inclusive.



• There is a mechanism to review the New Alternative RDO Arrangement. The product of that review may, in the circumstances specified within clause 55.2(c), be a reversion to the work arrangements that applied prior to the introduction of the New Alternative RDO Arrangement.

[24] The question relevant to determination of this matter is the circumstance in which the MFB should accede to a request to work a New Alternative RDO Arrangement. The answer to that broad question is to be found within the actual provisions of clause 55.2.

[25] Firstly, before the MFB turns to consider a request for a New Alternative RDO Arrangement, it must be satisfied that “the request for such arrangement is sought by an employee(s)” (55.2(b)(i)).

[26] Once a request has been made, the MFB should consider it and may agree.

[27] Not only does the preamble to clause 55.2(b) say that the arrangement is “[b]y agreement with the MFB”, clause 55.2(b)(iii) is explicit that the new arrangement shall “[b]e subject to agreement with the MFB”. In context it is the “new alternative Rostered Day Off (RDO) arrangement” that is the subject of the predicate term “[b]y agreement with the MFB” at the start of the preamble.

[28] The clause mandates, through the use of the word “shall”, that a request for a new RDO arrangement be considered through the lens of two perspectives, potentially shared;

• The first is that the totality of the arrangement will be “effective”, which term is not defined, “within the normal 38 hour week to maintain/improve productivity/service levels and provide an improved work-life balance” (55.2(ii)); and



• The second that the request does “[n]ot diminish or disadvantage the employee in relation to existing terms and conditions of employment under this agreement” (55.2(iv)).

[29] The clause does not prescribe how requests are to be submitted or agreement reached with the MFB. There are a myriad of possibilities in that regard about an acceptable process. That the MFB has chosen to use the method it has is, at one level, unremarkable. However, in its decision making, it has an obligation to be satisfied that the requirements in clauses 55.2(b) (ii) and (iv) are met. While unlikely, it could conceivably be faced with an application which disadvantaged an employee, or which did not provide an improved work-life balance for the employee and in such case MFB agreement to the request would not meet the mandate of the clause.

[30] More likely, and appertaining directly to the MFB’s interests in considering New Alternative RDO Arrangement requests, such a request would not comply with the clause if it did not “maintain/improve productivity/service levels”, being plainly of interest to the MFB, as well as providing “an improved work-life balance”, but this time from the perspective of the MFB as much as the employee. Reasonably the MFB would not desire to approve a 9 day fortnight that did not have those features.

[31] Conceivably then, and consistent with the drafting of the clause, the MFB has an obligation to consider such matters in its decision-making. The provisions do not require that there be demonstrated decision-making in this regard, although there may well be good reasons, including such as being in a position to answer disputes such as this one, for that to occur.

[32] The UFU argued a requirement for the MFB to consider requests for a New Alternative RDO Arrangement in good faith and to give fair consideration to any request 11, and that such requirements should be implied into the construction of the clause. In support of the proposition the UFU relied upon the decision of the Federal Court in AMWU v Skilled Engineering12 in which it was held “a term may be implied if it is necessary for the reasonable or effective operation of the contract in the circumstances of the case”.13

[33] The MFB argued that the provisions of the clause in dispute, clause 55(2)(b), refer to the New Alternative RDO Arrangement being “by agreement with the MFB”, which stands in contrast with words in one of the other clauses that conditioned the general application of the provision, namely Clause 55(2)(e). That clause allows employees with particular health matters or carers responsibility to seek a New Alternative RDO Arrangement, for an agreed period of time, that is, not indefinitely. 14 In contrast to the provision within clause 55(2)(b) that an arrangement be “by agreement with the MFB”, an arrangement under clause 55(2)(e) is also with the MFB’s agreement, however, in such cases, “[a]greement will not be unreasonably withheld”.

[34] The proposition is then developed by the MFB that the overall construction of the whole agreement and the relevant clause does not give rise to a construction of the clause in a manner that would imply terms good faith into clause 55(2)(b). 15 I accept that proposition.

[35] The face of the clause is clear and this is not a matter in which a term needs to be implied in order for the reasonable or effective operation of the agreement.

[36] In this matter, the operation of the dispute clause is not rendered unreasonable or ineffective without a term being implied.

[37] The evidence is that after the Corporate & Technical Employees Agreement was approved, the MFB prepared a guidance note setting out how requests were to be made, the information which was required to be provided by employees in the course of making the request, and the tests that would be applied by the MFB in considering such a request. At the same time the MFB put in place an application process, which included a form requiring the employee to articulate matters pertaining to their request.

[38] The MFB’s Guidance Note indicates certain matters about how decisions will be made on requests for New Alternative RDO Arrangements. In particular, it advises the following;

“Conditions for Approval

Executive or operational managers are responsible for determining their service levels and resourcing profile based on organisational needs and must determine whether RDO's can be adequately accommodated within their department. Where operational requirements permit, eligible corporate employees may work either an 18 or 19 day month provided that:

• work continues to be performed in an efficient and effective manner
• arrangements reflect the productive requirements of the workgroup and department which is determined and influenced by the nature of the work performed, type of contact with customers and the services provided
• there is no diminution of participating employees’ responsibilities
• arrangements are distributed equitably across employees workloads
• the appropriate standard of management and supervision is maintained.” 16

[39] When completing the Rostered Days Off Application Form, an employee is required to answer the following specific questions, in addition to providing certain personal and other details;

• Outline their current and proposed working arrangements for the workgroup;



• Identify their proposed work schedule;



• Describe the consultation that has taken place with the workgroup about the proposal;



• Outline the business benefits and the workgroup benefits of the applicant’s proposal;



• Outline the benefits of the proposal to the applicant and the impact of the proposed work arrangement on the delivery of the applicant’s position objectives;



• Describe how the workgroup will manage its workload, productive outputs, key performance indicators and customer service levels, with the available resources. 17

[40] Both the Guidance Note and the Rostered Days Off Application Form are consistent with the decision tests that are referred to within the clause itself.

[41] While the Guidance Note refers to executive and regional directors making a decision to approve the request, the process which actually operated has this decision-making within the MFB Executive. In the overall context of this matter there is nothing within the disputed clause that would either require or prohibit any particular decision-making process.

[42] The evidence of Ms Byrnes and Russell Eddington, Executive Director, Corporate Services, is that requests were received and evaluated by the MFB Executive. Some were approved, although most were not, including for the reason that the MFB was not sufficiently satisfied that the proposed arrangement would maintain/improve productivity/service levels. Some of these refusals include circumstances where the relevant line or executive manager recommended approval of the request. Those cases included those of the employees giving evidence in the matter, namely Ms O’Hanlon; 18 Ms Pyliotis;19 and Mr Ligris.20

[43] In itself, and within the plain meaning of the disputed clause, the possibility that a more senior manager or an executive committee does not approve a recommendation of another manager is not a consideration for this decision.

[44] Instead the matter for consideration is whether the MFB reached its decision in accordance with the term of the clause. Ms Byrnes’ evidence on the subject of assessment of requests includes that the MFB Executive formed a sub-committee for the purpose of giving detailed consideration to each application. Her evidence then includes the following;

“30. When the subcommittee met, each application received in the previous period was discussed in turn by the group and read through section by section to determine the quality of evidence provided.

31 The subcommittee reported back to the Executive Team that a few of the applications appeared to have merit if they were further developed, however the Executive Team was still rightly concerned about whether the groups or individuals had truly demonstrated the ability to maintain or improve productivity. Several of the applications were further explained and developed by their individual ELT member.

32 From September 2014 the subcommittee was replaced by a further improved process where any Executive Director contemplating an approval was to bring their application to the full ELT. That process has continued to this day.

The nature of the applications received

33 A large percentage of the applications had insufficient information to enable them to be approved. They did not adequately address productivity for the whole of workgroup or its outcomes or how KPIs would be met.

34 Further, the overwhelming majority of the applications did not provide sufficient detail regarding the maintenance or improvement of productivity and/or service levels. The applications did not demonstrate that service and productivity levels would not deteriorate.” 21

[45] In her oral evidence, Ms Byrnes expressed disappointment about the quality of the submissions received and in particular that the statements made were not sufficient;

“Nowhere near sufficient and for the - as a member of the subcommittee I personally reviewed all the applications that were received up to the point of the final subcommittee and so as a subcommittee I think it's fair to say that we generally felt disappointed by the quality and the quantity of information that was actually missing. Given that we had clearly outlined that it was a high standard, that we'd put all these fields together in the application form, it was clear that the employee needed to address every element of the criteria, in some cases there was - fields were completely missing, it appeared that employees in some cases weren't taking the application seriously, and that was disappointing to us particularly because under the new enterprise agreement we had introduced for the first time a performance management regime known as the pay point progression assessment.” 22

[46] The UFU contends that the phrase “maintain/improve productivity/service” levels is to be read such that the slash is seen as the word “or”; that is, the phrase is to be read as “maintain or improve productivity or service levels”. 23

[47] While the MFB accepts that proposition, it argued that;

“14 The MFB accepts that the arrangement proposed under clause 55.2 must either maintain or improve productivity or service. However, what any arrangement cannot do is maintain productivity but not maintain service or vice versa. It must maintain both, although it need not improve both. It is the submission of the MFB that the words are to operate to guard against a reduction of productivity/service in line with the objectives of the Agreement.

15 It is the evidence of the MFB that the proper construction of ‘productivity/service levels’ is productivity or service levels. This reflects the industry understanding that some positions’ KPIs are more appropriately measured in terms of productivity and others in terms of service levels.” 24

[48] In context, this is a submission that the proposed arrangement is to maintain or improve productivity or service levels, without reducing either.

[49] Such construction is consistent with the plain meaning of the clause and properly reflects the diversity of situations about which the MFB would be called upon to make decisions about requests for New Alternative RDO Arrangements. Likewise the plain meaning of the provision would be to not support requirements which diminished either or both productivity or service levels.

[50] That being said, the proposition that both productivity or service levels be maintained or improved is one that is conjunctive with the request providing an improved work-life balance.

[51] The evidence is that the MFB tested both matters. 25

[52] Evidence about the test as to the maintenance or improvement of productivity or service levels is that it looked not just at the assertions by an employee that the work normally completed within existing hours arrangements could still be done under the proposed new arrangement, but to evaluate it against the overall service level commitments of the person’s relevant team or work group

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

[53] The surrounding circumstances to which I was taken include material and statements from the MFB about the process of bargaining. 26 Necessarily this is a subjective analysis of what happened, and to the extent that it is relevant to the question of whether the disputed new alternative rostered day off arrangement provision contains an ambiguity, has not been taken into account by me in the making this decision.

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

[54] Since I consider the disputed New Alternative RDO Arrangement provision has a plain meaning, no evidence of surrounding circumstances has been taken into account by me in this decision.

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

[55] The language of the disputed New Alternative RDO Arrangement provision is not ambiguous or susceptible to more than one meaning, so evidence of the surrounding circumstances has not been admitted.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

a. 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;
b. notorious facts of which knowledge is to be presumed;
c. evidence of matters in common contemplation and constituting a common assumption.

[56] There is not presently evidence before me of the above nature and so none has been taken into account.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

a. the text of the agreement viewed as a whole;
b. the disputed provision’s place and arrangement in the agreement;
c. the legislative context under which the agreement was made and in which it operates.

[57] My decision turns on the language of the Corporate & Technical Employees Agreement, having regard to its content and purpose.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

[58] I have not had regard to the subjective intentions or expectations of the parties.

10. 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.

[59] I have not undertaken any rewriting of the Agreement in making my decision in this matter. Instead, I have interpreted the Agreement produced by the parties and which contained the agreed term found in clause 55.2(b).

[60] As a result of the foregoing, I find as follows;

• The disputed New Alternative RDO Arrangement provision within clause 55.2(b) has a plain meaning, which is that requests for such arrangements will be approved when the MFB agrees with that agreement being contingent upon satisfaction by both parties on the pre-requisites referred to in the clause, namely;



• By their election, employees may work a 19 day month (clause 55.2(a)). That election is conditioned by several, but not all of the remaining sub-clauses in clause 55.2, namely sub-clauses (d), (g), (i), (j), (k), (l), (m) and (n).



• Through the mechanism that is the subject of this dispute, there is “a new alternative Rostered Day Off (RDO) arrangement” of an 18 day month or 9 day fortnight arrangement which may be worked. That new alternative is created by clause 55.2(b), and is conditioned by each of the remaining sub-clauses in clause 55.2, namely 55.2(b) – (n), both inclusive.



• There is a mechanism to review the New Alternative RDO Arrangement. The product of that review may, in the circumstances specified within clause 55.2(c), be a reversion to the work arrangements that applied prior to the introduction of the New Alternative RDO Arrangement.

And;

• That the proposed arrangement is to maintain or improve productivity or service levels, without reducing either.

[61] Since I am satisfied the MFB is currently implementing the obligations of the clause, there will be no Order issued by me as a consequence of this decision, save to dismiss the UFU’s application.

COMMISSIONER

Appearances:

Mr J Murphy for the United Firefighters’ Union of Australia

Mr J Tuck (Corrs Chambers Westgarth) for the Metropolitan Fire Brigade

Hearing details:

2015.

Melbourne:

14, 22 December

 1   AE405930.

 2   Transcript PN 420.

 3   Ibid PN 396.

 4   [2014] FWCFB 7447.

 5   the Acts Interpretation Act 1901 (Cth)

 6   Exhibit A1, UFU Outline of Submissions, [22].

 7 Ibid [5].

 8 Ibid [6].

 9 Ibid [7].

 10 Ibid [11].

 11 Ibid [27].

 12 [2003] FCA 260.

 13   Exhibit A1 [25], citing AMWU v Skilled Engineering, at [25].

 14 Exhibit R3, MFB Outline of Submissions, [10]-[11].

 15   Ibid [12]-[13].

 16   Exhibit A1 Attachment 1.

 17   Exhibit R2, Witness Statement of Lisa Byrnes, Attachment LDB-4.

 18   Exhibit A3, Witness Statement of Steve O’Hanlon, [19].

 19   Exhibit A4, Witness Statement of Vicky Pyliotis, [3].

 20 Exhibit A1 [52].

 21   Exhibit R2 [30]-[34].

 22   Transcript PN 411.

 23 Exhibit A1 [33].

 24   Exhibit R3 [14]-[15].

 25   For example, see Transcript PN 411–412.

 26   See for example; Exhibit R1 [11]–[26]; Exhibit R2 [13]–[15]; Exhibit R3 [17]–[18]; Transcript PN 269-284.

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