United Firefighters' Union of Australia v Metropolitan Fire Brigades Board

[1997] FCA 1338

FEDERAL COURT OF AUSTRALIA

Industrial Law - application for penalty for breach of an Award - construction of word “district” in clause of the Award.

Industrial Relations Act 1988, s 178
Metropolitan Fire Brigades Act 1958 (Vic) s 3, s 4, s 25

UNITED FIREFIGHTERS’ UNION OF AUSTRALIA V METROPOLITAN FIRE BRIGADES BOARD
No. VI 1197 of 1996

NORTHROP J
MELBOURNE
2 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI NO. 1197  of   1996

BETWEEN:	UNITED FIREFIGHTERS' UNION OF AUSTRALIA APPLICANT
AND:	METROPOLITAN FIRE BRIGADES BOARD RESPONDENT
COURT:		NORTHROP J
DATE OF ORDER:		2 DECEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI No. 1197 of 1996

BETWEEN:	UNITED FIREFIGHTERS' UNION OF AUSTRALIA APPLICANT
AND:	METROPOLITAN FIRE BRIGADES BOARD RESPONDENT

COURT:	NORTHROP J
PLACE:	MELBOURNE
DATE:	2 DECEMBER 1997

REASONS FOR JUDGMENT

Shakespeare provides a clue to the solution of the question raised in this application.  With reference to Romeo’s family name, Juliet proclaims:-

“What’s in a name ? that which we call a rose/By any name would smell as sweet.”

Act II.ii.43.

In this application, by adaptation, it can be said with reference to the name “district”, “What’s in a name ? that which we call a district/By any other name would remain ‘a portion of territory marked off or defined for some special administration or official purpose’ ”.

This meaning of the word “district” is taken from the Shorter Oxford English Dictionary.  Examples are given in the Dictionary; “e.g. a police, postal or registration d. etc.”.  A further example can be added; “a fire district”.

The question raised in this application concerns the proper construction and application of the word “district” in a clause of an Award.  The difference of opinion arose when the name of portions of territory marked off or defined for administrative or official purposes were varied and re-described as zones.  The question is whether the terms of the clause of the award apply with respect to the new zones.

The Metropolitan Fire Brigades Board (“the Board”) is constituted a body corporate by s 6 of the Metropolitan Fire Brigades Act 1958 (Vic) (“the Act”). The essential function of the Board is described in s 25 of the Act as follows:-

“25.The duty of taking superintending and enforcing all necessary steps for the prevention and extinguishment of fires and for the protection of life and property in case of fire, and the general control of all stations and of all fire brigades shall, subject to the provisions of this Act, so far as regards the metropolitan district and any vessel berthed adjacent to any land which by virtue of section 4(2) is part of the metropolitan district be vested in the Board.”

It is helpful to refer to the meanings given by the Act to some of the words and phrases contained in s 25. The definitions are contained in s 3. The word “brigade” is defined as including all fire brigades whether permanent or volunteer. The words “permanent fire brigade” are defined to mean any association formed for the purpose of extinguishing fire and consisting of persons whose whole time is devoted to duties connected with that object and who receive a fixed remuneration for their services. A “volunteer fire brigade” is defined to mean any association of persons formed for the same purpose but the carrying out of the purpose is not the sole or principal calling or the means of livelihood of the persons or a majority of them. The “metropolitan district” is defined to mean the metropolitan fire district constituted by or under the Act.

Section 4(1) of the Act describes that portion of the territory of the State of Victoria marked off or defined for the special purpose of the Act as follows:-

“4. (1)For the proper and efficient carrying out of the provisions of this Act there shall be a metropolitan fire district consisting of the municipal districts or parts thereof set forth in the Second Schedule to this Act.”

In this section, the word “district” is to be understood to have its normal meaning.

For present purposes it is not necessary to refer to the many functions of the Board. The Board has the power to appoint officers and employees whether or not officers or members of the Metropolitan Fire Brigade. Under s 33A the Board, subject to an award, is to determine salaries and wages of officers and employees. The Act designates specific officers and specifies their powers and obligations. Reference need not be made to the many matters contained in that section of the Act under the heading “General Provisions”.

For many years, for administrative purposes the Board has sub-divided the metropolitan fire district into smaller areas.  For present purposes, each of these sub-divided areas has been described by different words, sometimes a sector, sometimes a district and sometimes a zone.  At all times, a number of stations, often referred to in common language as fire stations, were and are set up and maintained by the Board in each of these sub-divided areas.  Officers of the Board, normally, are attached to a particular station.  Because of rostering arrangements, officers may be required to serve at a station other than what has been called the “home station” of that officer or the station to which the officer (or employee) is currently rostered.  From time to time an employee may be required to perform duties at a station other than the home station or the station to which the employee was currently rostered.  The industrial awards regulating the conditions of employment between the Board and its employees contained a special clause headed “Expenses” containing provisions for the payment of expenses to employees in specified circumstances.

This application arises out of cl 6 of the Victorian Firefighting Industry Employees Interim Award 1993 (Cwth), (“the Award”).  This was a first Award in this area and for present purposes incorporated parts of the State award previously in operation.  The Award was made by the Australian Industrial Relations Commission pursuant to the provisions of the Australian Industrial Relations Act 1988 (Cwth).  The Award came into operation from the beginning of the first pay period commencing on or after 25 November 1993.  The Award is expressed to be binding upon the United Firefighters Union of Australia (“the Union”), and the Board with respect to its employees employed in any of the classifications set out in the Award.  Clause 25 of the Award is long and detailed.  It is headed “25.    EXPENSES”.  The issue concerns cl 25(c).  However it is desirable to set out cl 25(a), (b) and (c) but using the words in operation at the relevant time:-

“  25 - EXPENSES

(a)When an employee is ordered from one station to another and as a result it is reasonable for him/her to change his/her place of residence, the employer shall pay the expenses of removal reasonably incurred, except if the removal is ordered by way of punishment.

(b)When an employee is detailed for duty to a station other than that to which the employee is currently rostered, such employee shall, except in the case of an emergency, receive two (2) weeks notice of such duty.  An employee, in the event of not receiving two (2) weeks notice of such duty, and such duty has not been designated an emergency, shall, in addition to his/her wages be paid:

(i)All fares necessarily incurred by him/her in excess of those ordinarily incurred between his/her residence and the station to which the employee is currently rostered; and

(ii)A daily allowance equal to one hour’s wage at overtime rates; and

(iii)If the duty station is further from the employee’s residence than the station to which that employee is currently rostered, an allowance of 15 minutes each way at ordinary rates for each six kilometres or part thereof measured by radius, which separates his/her currently rostered station and duty station.

(c)When an employee is detailed for duty to a station other than a station within his/her district or an annexed station under the rostering arrangements in place from time to time, such employee shall, in addition to his/her wages, receive the payments prescribed in subclause (b) of this clause.”

In November 1993, and for a number of years before that, the Board had, for administrative purposes, divided the metropolitan fire district into a number of smaller areas described as districts. In each district, the Board had set up an administrative structure of officers and employees designed to enable it to perform its duties and obligations under the Act. The Board had identified five districts described as the Northern District, the Central District, the Western District, the Eastern District and the Southern District. These districts were described by words (metes and bounds) but a coloured map showing the boundaries of each district and the situation of each station within each district was in evidence before the Court. This map was of great assistance to the Court.

At the time the Award came into operation, the corresponding provision was contained in cl 6, paragraph (c) of the State award.  It was in the same form as cl 25(c) of the Award except the latter referred to “his/her” instead of “his”, see Fire Brigades Operational Staff Award (Vic), No.3 of 1987.  Before that, award No.4 of 1985 applied.  There, cl 6(b) referred to a “station other than a station within his home sector” and cl 6(c) referred to an employee, “while on duty at his own home station” being required to attend another station.  The award No.1 of 1982, had made reference to “his home station” only, no reference being made to “sector” or “district”.

In 1993, the Board introduced a number of operational and administrative changes to the structures of the Board with respect to the metropolitan fire district.  The Board sub-divided the metropolitan fire district into four areas which it described as zones.  The four zones were identified as the Southern Zone, the Central Zone, the Northern Zone and the Western Zone.  The Board introduced a new administrative structure with respect to each zone.  Part of the former Eastern District was included in what was previously the Central District and another part was included in what was previously the Northern District.  The remaining part of what was previously the Eastern District was joined with what was previously the Southern District to become the Southern Zone.  What was previously the Central District when added to the part transferred from what was previously the Eastern District, became the Central Zone.  Likewise, the new Northern Zone was constituted by what was previously the Northern District together with part of the previous Eastern District.  The old Western District became the Western Zone.

The zones were described by metes and bounds but at the hearing a coloured map showing the boundaries of each zone and the situation of each station within each zone was in evidence before the Court.  This map, likewise, was of great assistance to the Court.

The wording of cl 25(c) remained the same after this reorganisation was implemented.  In particular, the word “district” remained.  The award was not amended to replace that word with the word “zone” until after this application had been issued.  The order for the variation was made on 6 December 1996 but came into effect on 14 March 1996.

Mr Keith Lyons is an employee of the Board.  He is a member of the Union.  At all material times, the Board was required to pay to him expenses under cl 25(c) of the Award.  Between 5 April 1994 and 2 May 1995, Mr Lyons was on 8 occasions detailed for duty to a station other than a station within his district.  On each of those occasions the station to which Mr Lyons was detailed for duty was a station within his zone.  The Board did not pay Mr Lyons the amount of the expenses calculated in conformity with cl 25(c) of the Award.

By application issued on 1 March 1996, the Union made this application under s 178 of the Industrial Relations Act seeking the imposition of a penalty on the Board for a breach of the Award in not paying those expenses to Mr Lyons.  Consequential orders were sought.  The application involved the meaning to be given to the word “district” in cl 25(c).

The issue between the parties is narrow.  The Union contends that in cl 25(c) the word “district” means the actual districts in existence at the time the Award came into operation.  The union contended that in cl 25(c) the word “district” had a technical meaning in the industry.  As a result the word “district” meant each of the Northern District, Central District, Western District, Eastern District and Southern District.  Implicit in this contention is the assertion that irrespective of whether the boundaries of each of those districts were changed, or the names of the areas of each of those districts were changed, the word “district” had an immutable meaning and cl 25(c) must be applied accordingly.  Unless the Award was varied to give effect to changes to the areas even if still called districts, the provisions continued to apply to the old “districts”.

The Board contended that the old “districts” were abolished by it for administrative and operational purposes and replaced by four zones.  This may have occurred in a two step process but on any view since 13 December 1993 the metropolitan fire district has ceased to be divided into four districts and has been divided into four zones as described earlier in these reasons.  It is not necessary to consider the details of how the changes were done.  There is no suggestion that the changes were made other than for genuine administrative and operational advantages.

The Board claims, and it is not disputed, that since 5 April 1995 Mr Lyons has not been detailed for duty to and has not worked at a station to which he was not rostered which was not within his zone or annexed to his zone.  Although not in issue, the Board seems to concede that after 13 December 1993, the word “district” in cl 25(c) of the Award should be read as “zone”.

The Union sought to rely on many authorities relating to the method of construing awards and as to the meaning to be given to the words zone.  The Union sought to rely upon much material relating to extrinsic material that it was said could assist in the construction of cl 25.  The Court ruled against the admissibility of that material.    There was no sufficient evidence to suggest the word “district” had any meaning other than its normal meaning.  It is interesting to note that neither party referred to any dictionary meaning of the word “district”.  Reference has been made earlier in these reasons to the meaning ascribed to the word “district” by the Shorter Oxford English Dictionary.  In the Macquarie Dictionary the meaning is given as “an area of land delineated for some administrative or other purpose”.

The Court concludes that in cl 25(c) the word “district” is to be given its normal meaning of an area of land delineated for some administrative purpose. By Act of Parliament, the Board is directed to perform a function with respect to an area of land described as the metropolitan fire district. In order to carry out its functions and for administrative and operational purposes it has subdivided the metropolitan fire district into smaller areas each with its own administrative structures. It doesn’t matter what name is given to each of these areas, whether district, zone or even sector. What is important is the fact of the administration structure within each area. Logically it would be expected that the word “district” would be used with respect to each of these sub-divided areas. This would be in conformity with the word “district” in the Act. This can be illustrated. If an employee of the Board is directed to a station in an area, whether a “district” or “zone” other than the normal “district” or “zone”, that employee becomes part of a different administrative structure. That employee comes within a different line of command. This may not be a reason for the entitlement to the payment of an additional expense, but it does highlight the fact that it is the structures of the Board which are important. Further, it is noted that many stations within a district (or a zone) are much closer in distance to a station in an adjoining district (or zone) than other stations within the same district or zone. The areas within which the administrative and operational structures operate is the essential feature in ascertaining the area of a district (or a zone).

“A rose by any name would smell as sweet”.

The application is dismissed.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop

Associate:

Dated:            2 December 1997

Counsel for the Applicant:	Mr E White
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr L Kaufman
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	21 October 1997, 20 November 1997
Date of Judgment:	2 December 1997