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

[2014] FWC 3860

[2014] FWC 3860

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Metropolitan Fire & Emergency Services Board
(C2013/7760)

COMMISSIONER WILSON MELBOURNE, 11 JUNE 2014

Application to deal with a dispute: whether penalties payable for late notification of shift change.

[1] This decision concerns an application by the United Firefighters’ Union of Australia (UFU) for the Fair Work Commission to deal with a dispute arising under an enterprise agreement. The dispute is with the Metropolitan Fire and Emergency Services Board (MFB) and relates to provisions of the Metropolitan Fire and Emergency Services Board and United Firefighters’ Union Operational Staff Agreement 2010 1 (the Agreement).

[2] The dispute arises since an employee, Mr Sergio Agricola, was notified of changes to his shift arrangements in a way that he says in all the circumstances does not sufficiently comply with the Agreement’s requirements to notify changes to shift arrangements. It is said that because of this, Mr Agricola is therefore entitled to additional penalties.

[3] The question for determination in the arbitration of this dispute is as follows (for purposes of reference referred to as the Dispute Question);

Do the words “on shift” in clause 82.5 of the Agreement require the MFB to personally notify an employee of transfer at a time when that employee is actually at work?

[4] For the reasons set out below, I answer the question in the negative.

Referral of dispute

[5] The Fair Work Act 2009 (the Act) provides for the Fair Work Commission to deal with disputes in certain circumstances, and in particular where a term of an agreement requires or allows the Commission to deal with a dispute. 2 In accordance with s.739, the Commission must only deal with a dispute upon application of a party to the dispute (s.739(6)) and must not exercise any powers limited by the term (s.739(3)). The Commission may arbitrate if, in accordance with the term, the parties have agreed to do so (s.739(4)) however in doing so must not make a decision that is inconsistent either with the Act or a fair work instrument applying to the parties (in this case an enterprise agreement) (s.739(5)).

[6] The UFU has made an application for the Commission to deal with a dispute and the parties, in accordance with the term of the Agreement, have agreed the Commission may arbitrate. Sub-clause 19.2 of the Agreement sets out a comprehensive procedure for the resolution of disputes between the parties and provides in sub-clause 19.2.6 for unresolved disputes to be referred to the Commission for conciliation or arbitration. The procedure provides as follows;

“19.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:

19.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.

19.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.

19.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.

19.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.

19.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.

19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.”

[7] I am satisfied that this procedure has been followed and that the Commission’s jurisdiction in relation to s.739 has been properly invoked.

Background to dispute

[8] On Thursday, 11 April 2013 Mr Sergio Agricola was working at the Northcote Fire Station. His shift finished at 8 AM, after which he was to take four rostered days off work. He was next rostered to work on Monday, 15 April 2013. Some hours after he finished his shift on 11 April 2013, at 3:16 PM, Mr Agricola was sent an email with the title “roster transfer notification” advising that he was to change from the Northcote Fire Station to the Pascoe Vale Fire Station for the roster period 3 May 2013 to 30 May 2013.

[9] Ordinarily this notification would be sufficient so far as the shift change notification procedures of the Agreement are concerned and would be enough notice to avoid penalties payable for transfers at short notice. Transfers between fire stations which give 14 or more days’ notice of the change do not incur a penalty for the employee concerned; however the Agreement provides that notifications made with less than 14 clear days notice incur a penalty.

[10] In Mr Agricola’s situation the complication arose in that after leaving the fire station on 11 April he was called to attend jury service starting on Monday, 15 April 2013 and did not complete that service until Wednesday, 24 April 2013. With the exception of a single shift that he worked on 21 April, he returned to fire fighting duties with the MFB on the night shift of Thursday 25 April. It was in the course of that shift that Mr Agricola checked his emails and learned that he had been reassigned from the Northcote Fire Station to the Pascoe Vale Fire Station for the roster period commencing 3 May 2013. In effect, a shift change notification given on 25 April 2013, if that is what it was, would be eight days notification prior to the commencement of the shift on 3 May 2013.

[11] A notification of a change to shift arrangements of only eight clear days would plainly be fewer than the 14 clear days provided for in the Agreement, thus potentially opening up an entitlement to payment of additional penalties.

[12] The Agreement deals with the requirement to give proper notice to firefighters of changes to their shift arrangements in clauses 42.7.1 and 82.5, which provide the following;

“42.7. Expenses

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

42.7.1.1. All fares necessarily incurred by him or her in excess of those ordinarily incurred between his or her residence and the location to which the employee is currently rostered; and

42.7.1.2. A daily allowance paid equal to one hour’s wages at overtime rates; and

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

“82.5. Transfers of employees within zones

Transfers of employees within zones are to be undertaken to minimise the movement of employees, both in terms of the number of times moved, and the number of stations an employee is moved to. Transfers will be undertaken in accordance with the Rostering arrangements prescribed below.

* Employees to be transferred will be personally notified on shift with 14 clear days notice other than where an employee is proceeding on Annual Leave when 2 two clear days notice will be provided. Personal notification includes email and the personal email address has been installed and employees are trained in its use.

* Employees will not be transferred more than seven times, during the current three year Rostering cycle without incurring penalties. Each three year roster cycle stands alone.

* An employee will not be notified of a rostered transfer whilst on recreational leave.

82.5.1. What constitutes a move (Transfer)

* When an employee is transferred from his/her current station to another station counts as a move.

* Temporary secondments to any day work positions, counts as a move.

* Returning from any temporary secondment from any day work positions, counts as a move.

82.5.2. What does not constitute a move (Transfer)

* If an employee is transferred to a station or day work position that they have applied for and been granted, this transfer does not count as a move.

* If an employee is transferred to another station because of a mutual change, this is not counted as a move.

* If an employee returns from annual leave to the last station he/she was rostered to prior to annual leave, this does not count as a move.

* An employee who is placed on Operational Support and is transferred to another work place, this does not count as a move.

* Where penalties are paid due to late notification (non-emergency) or part roster change, the move back to the normal rostered station is not counted as a move.

Note:

The rostering committee will determine what is a move or not a move as per disciplinary action.”

[13] While each sub-clause is significantly more comprehensive than the extracts referred to above, the parties agree that these are the relevant parts of the clauses concerned.

[14] While sub-clause 42.7.1 sets out the point of principle that an employee “shall, except in the case of an emergency, receive two weeks notice” of the requirement to work in “a location other than that which the employee is currently rostered”, it is sub-clause 82.5 which provides greater elaboration of how this point of principle is to be put into practice. In particular the first bullet point to sub-clause 82.5.1 provides that transferring employees “will be personally notified on shift with 14 clear days notice other than where an employee is proceeding on Annual Leave when 2 two clear days notice will be provided”. The same bullet point allows the notification to be through the use of email in certain circumstances.

[15] In application to Mr Agricola, sub-clause 42.7 provides that in the event that insufficient notice has been provided, he would be entitled to fares necessarily incurred by him travelling to the Pascoe Vale fire station, if those are in excess of those he would ordinarily incur between his home and the Northcote fire station; a daily allowance; and additional travelling time in the event the Pascoe Vale fire station is further away from his home than the Northcote fire station.

Consideration

[16] In order to answer the dispute question posed above, it is necessary to form a view about the construction to be applied to the clauses referred to above. This task involves construction of a section agreed by the parties and contained within an Agreement approved by the Commission. The principles for the construction of enterprise agreements are well settled and permit the context of the Agreement to be taken into account.

[17] In this regard, the UFU submit that the interpretive task is to be guided by the principles of contract and the language chosen by those who made the Agreement must be interpreted in its context. 3 The UFU submits about the interpretation of the Agreement that construction of the Agreement is guided by the principles of contract with the High Court adopting and applying an “objective theory of contract”, and the union submits there is a need to attribute to the parties “an objective intention distilled from the language in which they have chosen to make their bargain”4. The union connects this reasoning with the need to construe an agreement within its industrial context as set out in the decision of Flick J in CFMEU v Ulan Coal in which it was said;

“Clause 12 of the present Agreement is, like clauses in other industrial instruments, to be "understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [2], per Gleeson CJ and McHugh J. Such a provision is "to be read in context" and having regard to "the text and operation of the Agreement as a whole and by reference to other particular provisions made by it": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [30], per Gummow, Hayne and Heydon JJ.” 5

[18] In reply, the MFB argued about the approach to the construction of enterprise agreements;

“While there has been a historically liberal approach to the construction of the terms of an enterprise agreement, a liberal interpretation to the construction of enterprise agreements “may mean no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an [enterprise agreement] nor be astute to discern absurdity or illogicality or apparent inconsistencies.” 6

[19] The MFB’s submissions in response to the argument that the Commission’s task is to be guided by the principles of contract drew upon AMWU v Toyota Motor Corporation 7, in which DP Gostencnik discussed earlier decisions of the Federal Court on the subject. In that case, the Commission was asked to find that the current method of sick/carer’s leave accrual and credit is expressly or by implication, a term of the agreement8, with it being argued to the Commission that that whilst the Agreement did not expressly proscribe the method of sick/carer’s leave accrual and credit proposed by Toyota it equally did not provide for it9. In his decision, DP Gostencnik noted several decisions of the Federal Court on the subject of whether a term should be implied into a certified agreement;

• Finkelstein J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd 10 found that a review of cases suggested that while the general approach is to apply the principles of contract construction, but with a predisposition against the implication of a term11, it was possible to do so in the case being dealt with by him, finding that a term may be implied if it is necessary for the reasonable or effective operation of a contract in the circumstances of the case12;



• However, Siopis J in McAleer v the University of Western Australia (No 3) 13 observed it may be necessary to approach the Skilled Engineering decision with some caution14because of the earlier findings of the Full Federal Court in ACTEW Corp v Pangallo15 in which the Full Court held;




“Counsel for the respondent is correct in submitting that there are substantial differences between the current regime for certified agreements and that which applied pursuant to the 1988 Act. There is less discretion reposed in the Commission so far as certification is concerned; the emphasis is upon single businesses rather than industry or other groupings; there is the opportunity for those affected to vote; and agreements are not necessarily made in settlement of an industrial dispute. At the same time, there has been a significant change in the scope of awards, particularly as a result of s 89A of the Act, so that awards are likely to be less comprehensive and less prescriptive than previously. These developments, and the introduction of Australian workplace agreements (Pt VID), reflect a movement to more consensual industrial arrangements. It is likely that matters which may formerly have been dealt with by an award may now be dealt with either in a certified agreement or an Australian workplace agreement. That trend does not assist the respondent's argument in endeavouring to distinguish the decision in Byrne. A certified agreement now may be rather more like an award was at the time of that decision than it might be now. However, the trend towards consensual arrangements has not resulted in any fundamental change to the nature and effect of a certified agreement. The submission for the appellant that a certified agreement is solely a creature of statute having force by virtue of the statute remains correct. In a sense, the term ‘agreement’ is a misnomer because it will bind individuals whether or not they authorise it or are in favour of it. There is no scope for private law concepts of contract or equity in such circumstances.” 16

[20] The Commission’s general approach to the construction of agreements avoids a narrow pedantic approach to interpretation and ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 17 Although the task is not “to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written”18, it is proper to have regard to the context of the Agreement to form a decided view. The principles and approach to the construction of agreements were also usefully traversed by the Full Bench in Cape Australian Holdings Pty Ltd (T/A Total Corrosion Control Pty Ltd) v Construction, Forestry, Mining and Energy Union;19

“[7]As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:

“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[8]While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[9]The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[21] The UFU submits that, in order to discern the meaning of the words “on shift”, the words of the provision must be interpreted in their industrial context and within the framework of the document as a whole. 20 In this regard, the subclause is within one dealing with rostering and in a part dealing with conditions applying to firefighters and others, and;

“In this context, namely where the Agreement focuses on the rights and responsibilities applying to the employer/employee in the rostering of work, clause 82.5 must, it is submitted, be properly interpreted so as to impose an obligation on the MFB to personally notify an employee of transfer to another location at a time when that employee is actually at work, that is, when he or she is "on shift".” 21

[22] While regard must be paid to the context and purpose of the provision or expression being construed, the Full Bench has applied the principles set out above such that while the industrial context and purpose of the Agreement can be considered, the consideration is against the requirement that the process of interpretative analysis must focus, first and foremost, upon the language of the Agreement itself. 22 The Full Bench expresses the interpretative task as being to identify the common intention of the parties as they have expressed it in the terms of their Agreement rather than having regard to the parties respective subjective intentions and expectations of the parties as demonstrated by their “statements and actions” in negotiating the Agreement23.

[23] Mr Agricola’s evidence in these proceedings was that he received notification from the Juries Commissioner’s Office in the first week of April 2013 that he should call an automated telephone number on Friday 12 April to ascertain whether he had been selected for jury service commencing on 15 April 2013. In his oral evidence, he elaborated that at the start of the roster he informed his officer in charge to let him know he had been selected for jury service. The notification that he would be required for jury duty predated his receipt of the notification from the MFB about the change to his rostering arrangements.

[24] Overall there is very limited factual material before me and there is insufficient evidence from either party to be satisfied that the totality of circumstances faced both by Mr Agricola and the MFB may adequately be taken into account in making this decision.

[25] On Mr Agricola’s behalf there is insufficient evidence from him about precisely the first occasion that he knew about being required to attend for jury duty. While his evidence is that he received notification about the jury service in the first week of April, I am not confident that this was the very first notification that he received about the subject. Equally, there is no evidence of substance from Mr Agricola about what he did to draw to the MFB’s attention that he would be potentially away from firefighting duties for a period of some time, possibly even weeks. There is no evidence provided as to whom he reported his requirement to attend for jury duty or when or how he made those reports, if any. Whereas his witness statement indicates that he contacted his relevant supervisor, the A Platoon Officer In Charge, on 15 April and told him of his need to attend for jury service from around that date, it seems unlikely in a workplace with such formal rostering requirements as the MFB that there was never an earlier, perhaps formal, perhaps written, notification of the need to attend for jury duty for some time, possibly even weeks.

[26] On the MFB’s behalf, there is insufficient evidence from the organisation as to when it first learned about Mr Agricola’s likely requirement to attend for jury duty and how it learned of this fact. There is no evidence before me about what the rostering officer, or any other relevant person, knew of Mr Agricola’s impending jury service before he made the phone call to the A Platoon Officer In Charge on 15 April. There is no evidence about whether the Northcote Fire Station officer in charge knew that Mr Agricola was to be transferred; that he connected Mr Agricola’s absence with an impending transfer; or that he communicated Mr Agricola’s notifications of daily absence from 15 April either within the MFB hierarchy, to a rostering officer, or to the Pascoe Vale Fire Station. While it seems likely that an officer in charge would know about forthcoming staff movements, there just is no evidence on the subject.

[27] These points of fact are relevant in that they could explain what is to be made of the communication from the rostering officer to Mr Agricola in the email on 11 April 2013 and how that communication is to be viewed in the context of a complaint to the Commission that the MFB is not applying the Agreement in the way it is obliged.

[28] Mr Agricola’s case could be made stronger in the event that it was shown he had some weeks earlier formally notified the MFB of a likely absence for jury service. If that was the case it could be expected that the rostering officer was aware of an impending absence, or should have been aware of that likelihood, in which case a notification of changes to rostering arrangements at 3:16 PM on the day on which Mr Agricola finished the shift of 8 AM and was unlikely to return for some time because of an absence on jury service, might be viewed as unreasonable and not compliant with the terms of the Agreement.

[29] On the other hand, the possibility that the first the MFB formally knew of Mr Agricola’s absence on jury service was when he notified the A Platoon Officer In Charge on 15 April 2013, might be viewed as a non-compliant notification on his behalf.

[30] Because there is no evidence before me about an earlier notification by Mr Agricola to anyone other than his officer in charge about the likelihood of him being absent during April on jury service and since I have little or no evidence of him giving earlier or formal notice to the MFB about his likely absence, I find it was likely the MFB rostering staff simply did not know he was to be away.

[31] The fact that the parties have chosen not to elaborate the factual base of this matter causes the resolution of the dispute to necessarily be focused only on the facts admitted into the proceedings as well as on the text of the Agreement. The absence of comprehensive material on factors such as those referred to above limits possible reliance on evidence of surrounding circumstances in aid of construction as is advocated by the UFU. When it comes to considering the context of the Agreement, I have the admitted facts to work with, which include;

• In about the first week of April 2013 Mr Agricola received a letter from the Juries Commissioner’s office which advised him to call an automated phone number on Friday, 12 April 2013 to ascertain whether he had been selected for jury service commencing on Monday, 15 April 2013. Having been so notified, at the start of the roster Mr Agricola informed his officer in charge to let him know he had been selected for jury service;



• At 8 AM on Thursday 11 April 2013, Mr Agricola finished a night shift at the Northcote fire station and was not rostered to return to work until Monday, 15 April 2013;



• At 3:16 PM on Thursday, 11 April 2013 an email was sent to Mr Agricola advising of changes to his rostering arrangements which were to commence from 3 May 2013. At about 7 AM on Monday, 15 April 2013 Mr Agricola contacted the A Platoon Officer In Charge of the off coming night shift to advise him that he would be unable to attend a day shift that morning because he was required to attend jury service. Mr Agricola asked the officer to inform the officer in charge of his platoon about this situation. At about 8 AM on the same morning Mr Agricola checked with the officer in charge to see that he had received the message;



• On successive days on which he was rostered for duty Mr Agricola contacted the relevant officer in charge and advised that his jury service was continuing and that he would be unable to attend duty;



• On Sunday, 21 April 2013 Mr Agricola accepted a single shift period day shift at the Broadmeadows fire station, however did not check his emails on that day;



• He continued on jury service until Thursday 25 April, on which day he returned to night shift and at about 6:30 PM on 25 April he checked his emails to find that he had been assigned to transfer from Northcote to Pascoe Vale fire stations starting 3 May 2013;



• Mr Agricola was not informed of the transfer through any other means.

[32] Resolution of the Dispute Question requires an examination of how an employee is notified their shift arrangements have changed, with the question asking; do the words “on shift” in sub-clause 82.5 of the agreement require the MFB to personally notify an employee of transfer at a time when that employee is actually at work?

[33] The question pertains to the first bullet point of sub-clause 82.5, which provides so far as is relevant;

“... Transfers will be undertaken in accordance with the Rostering arrangements prescribed below.

* Employees to be transferred will be personally notified on shift with 14 clear days notice other than where an employee is proceeding on Annual Leave when 2 two clear days notice will be provided. Personal notification includes email and the personal email address has been installed and employees are trained in its use.”

[34] The context within which the meaning of the words “on shift” must be resolved, is firstly the phrase in which the words appear, which requires transferring employees to be “personally notified on shift with 14 clear days notice”. The wider context includes other parts of the same sub-clause as well as the whole of the Agreement. The context in which the words are employed is important to the correct construction of the sub-clause.

[35] An examination of the immediate context of the words “on shift” within sub-clause 82.5 provides several factors to be taken into consideration;

• Changes to shift arrangements are permissible, but must be within a framework that limits the number of occasions on which changes occur;



• As well as being entitled to have 14 days’ notice of a coming change, employees are entitled to receive personal notification of the change. The requirement for personal notification implies that general notification is not compliant (for example, this might be advice given through pinning a notice to a bulletin board; reading names out at a start-of-shift assembly; or posting a roster on an intranet page).



• Notification through an email service is permissible, provided the employee has access to and training about its use.



• While email notification is expressly permitted, other technology based forms of notification are not expressly prohibited.

[36] Personal notification implies notification that goes directly to the person affected and which is not for others to know about until the notification has been made. Why the sub-clause is drafted in this way, or how long it has been in this form, was not explained to the Commission. Personal notification could presumably be through a supervisor speaking with the person concerned or it could be through a memo left in a pigeon-hole. In this latter case, or variants like it, the transmitter of the notification is not physically present at the time as the receiver of the communication. Permitting personal notification on shift through the use of an email system is a modern version of leaving a memo in a pigeon-hole for the employee - the sender is probably not in the same building as the recipient, and likely not working on the same shift as the employee.

[37] Derived from the context of the sub-clause itself then is the construction that being “personally notified” means a notification only that is personal to the recipient. As with notification through a pigeon-hole system, so email notification amounts to being personally notified, since the notice is personal. The phrase plainly does not require a person-to-person communication. A personal notification can thus be provided on one day and read on another.

[38] The axiom of this construct is that for the personal notification to be “on shift”, the test of whether something is, or is not, “on shift” will be not when the notification was sent, but when it was received.

[39] Also within the context of sub-clause 82.5 are the two limited exceptions to the rules about transfers of employees within zones are made in respect of Annual Leave and “recreational leave” which term is used interchangeably within clause 58 (Recreation Leave) .

[40] The significance of the references in sub-clause 82.5 to annual leave or recreational leave is that the sub-clause modifies the amount of notice to be provided about changes to their shift roster, but makes no modification in the case of any other leave provided for by the Agreement.

[41] The modifications are firstly, in respect of an employee who is yet to go on annual leave, but is about to do so, may be personally notified on shift of their changed rostering arrangements with only two clear days notice, presumably being at least two full days before the employee commences on annual leave and in the eventuality of the changes commencing close to their return from leave.

[42] Secondly, the subclause provides that an employee may not be personally notified on shift of changed rostering arrangements whilst they are on recreational leave or annual leave. In a case such as this, the employee could not be personally notified of changed rostering arrangements until they returned from leave, and then the notification period would be 14 clear days from the date on which they returned, else the provisions of sub-clause 42.7 would apply.

[43] The subclause makes no explicit modification in relation to any other form of leave. Potentially therefore, the situation that arose in the factual circumstances of Mr Agricola will arise in the case of other forms of leave as well, which is relevant to the consideration of the wider context of the Agreement. A consideration of the wider context shows that it is entirely foreseeable that in the case of an employee accessing several of other forms of leave they may well also proceed on leave at short, or no, notice.

[44] The Agreement contains 15 clauses dealing with different types of leave, all within Part B of the Agreement, which deals with the conditions of employment for firefighters, station officers, senior station officers and commanders. The clauses dealing with leave are;

51. Personal Leave

52. Immediate Family or Household

53. Sick Leave

54. Carer's Leave

56. Special Sick Leave – Armed Forces/Compulsory Hospitalisation

57. Bereavement Leave

58. Recreation Leave

59. Long Service Leave

61. Industrial Training Leave

62. Study Leave

63. Defence Force Leave

64. Jury Service

65. Leave Without Pay

66. Pressing Necessity Leave

67. Parental Leave

[45] Evident within the context of these many different forms of leave is that absence at short notice may arise for any number of eventualities other than jury service. For example, it is foreseeable that short notice absence will arise because of a right to take Personal Leave (which appears to encompass Immediate Family or Household Leave, Sick Leave and Carer’s Leave), Special Sick Leave – Armed Forces/Compulsory Hospitalisation, Bereavement Leave, Leave Without Pay and Pressing Necessity Leave. It can be expected as well that employees and their families will be the ones who generally benefit by being able to take leave at short notice. On the other hand, co-workers or the employer will need to make changes in the workplace to deal with the employee’s absence which, to them, will mostly have arisen without notice or formal approval of the leave.

[46] Abstracted beyond jury service, the factual circumstances which should be taken into account in resolving the dispute between the parties are these;

• An employee finishes their shift, which is at the end of their “four day tour of duty” and is not rostered to be back at work until after their four rostered days off;



• On the same date that the employee finishes their shift, but after the time they leave the premises, the MFB rostering officer sends personal notification through an email advising of changes to future shift rostering arrangements. The notification is sent on the assumption that there is ample time after the employee returns from their rostered days off for all concerned to be satisfied the employee has been “personally notified on shift with 14 clear days notice” of the changes;



• In between the time of leaving the premises at the end of their shift and the start of the first shift after the ensuing four rostered days off, the employee seeks and is granted leave for any reason other than “Annual Leave” or “recreational leave”;



• After completing the period of leave, the employee returns to work, but after the originally rostered return to work date, and only sees the notified changed shift arrangements within a period of 14 days from the start of those changed arrangements.

[47] Consideration of these factual circumstances within the wider context of the Agreement, and especially its provision for the taking of leave shows Mr Agricola’s circumstances are unlikely to be rare or unusual. However, unique among all the different forms of leave, only annual leave, or recreational leave, is given special treatment in the rostering arrangements sub-clause.

[48] This context of a likely lack of rare or unusual circumstance connects with the other context of the Agreement - a document that regulates the working conditions and behaviours of a large number of geographically dispersed employees working over every hour of the year, and their employer.

[49] While the Agreement is plainly a long and comprehensive document, and has been developed over many years and versions, it has inconsistencies and inaccuracies - the example of the inconsistent nomenclature of “annual leave” and “recreation leave” is just one. Some things have been defined, while others have not; some notifications and approval processes have been codified, while others have not.

[50] For reasons best known to the parties, the ability to give shorter notification about changes to rostered shift arrangements around the time of taking annual leave has been addressed.

[51] Within the context of the Agreement as a whole, the fact that the same need has not been addressed for other forms of leave is unremarkable, and is unlikely to have a particular meaning. That is, the fact that the subject of notice of change to shift arrangements on or around other forms of leave has not been addressed is probably best explained as either there not having been a reason to address it, or that it is part of the mutual flexibility required on the part of both the employer and employee when it comes to seeking and being granted leave at short notice for any reason, including jury service.

[52] Just because subclause 85.2 does not say there can be shorter notices of changes to shift arrangements when those changes coincide with forms of leave other than annual leave is unlikely to lead to a finding that to be personally notified on shift means that such notification can only be received on days someone is actually at work.

[53] The forms of leave for which it is foreseeable there may be short notice absences do not forensically prescribe how notification is to be given by an employee to the MFB, or how approval is to be given. Instead, the relevant parts of the clauses have characteristics of informality and decision making based on objective tests. Sick Leave and Carers Leave may be taken if the employee has given notice of the need before their rostered shift, unless there is a good reason for not doing so, in which case notification by telephone must be given at the first opportunity 24; evidence of illness is not needed below a specified threshold of absence. Jury service requires notification to the MFB as soon as possible of the date upon which he or she is required to attend, and proof of attendance may be required.25 Special Sick Leave, Bereavement Leave, Leave Without Pay, and Pressing Necessity Leave do not specify any particular form of notice.

[54] The context of these clauses is of leave being available when it is needed and as soon as it is needed. The clauses appear to build on a foundation of mutuality of purpose and objective between an employer and employee; and in effect, a relationship of give and take. Employees will want to take leave at short notice and will want to do so without the formality of slow approval processes or burdensome evidence requirements.

[55] As part of this relationship, it is not unreasonable for an employee to ask for and obtain leave at short notice, with the consequential implication for the employer of disruption in the workplace in order to work around the employee's absence.  At the same time, it is also not unreasonable that there be an expectation on the part of the employer that the same employee will work with and respect the needs of the employer, such as to accept as valid a shift change notification given in good faith at a time when neither the employer or employee had any knowledge of the employee's impending absence or duration.

[56] Sub-clause 82.5 provides that an employee must be “personally notified on shift with 14 clear days notice” about changes to their shift arrangements, however neither the sub-clause or any other part of the Agreement define any part of that phrase. I am required to give a construction to the sub-clause that gives the words of the provision their plain or ordinary meaning, taking into account the context and purpose of the provision. The proper interpretation, and one that is consistent with the context of the Agreement is that notification is not constrained only to the occasions on which a person actually works. There is nothing within the words, or the Agreement itself that would require that, and the context of the other leave clauses and how leave is to be notified or decided upon, give support to such an interpretation.

[57] For these reasons, I answer the dispute question as follows;

Q: Do the words “on shift” in clause 82.5 of the Agreement require the MFB to personally notify an employee of transfer at a time when that employee is actually at work?

A: No.

[58] The dispute is determined accordingly and I do not consider it necessary to make orders.

COMMISSIONER

Appearances:

Ms A Forsyth, of Counsel, for the Applicant

Mr M Minucci for the Respondent

Hearing details:

2014.

Melbourne:

May, 2

 1   AE881005, see [2010] FWAA 7414

 2   See the Fair Work Act 2009, ss.738 and 739

 3   UFU Outline of Submissions, paras 7 - 8

 4   Ibid, paras 7 - 11

 5   Ibid, para 10; CFMEU v Ulan Coal Mines Ltd [2009] FCA 326, at [25]

 6   MFB Outline of Submissions, para 14, per City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]

 7   [2013] FWC 8237

 8   [2013] FWC 8237, at [13]

 9   Ibid, at [15]

 10 [2003] FCA 260

 11   Ibid, at [18]

 12   Ibid, at [25]

 13 [2008] FCA 1490

 14   Ibid, at [106]

 15 [2002] FCAFC 325, 127 FCR 1

 16   Ibid, p 17

 17   Kucks v CSR Limited, (1996) 66 IR 182, at 184.

 18   Ibid

 19   [2012] FWAFB 3994

 20   UFU Outline of Submissions, para 12

 21   Ibid, para 13 - 14

 22   Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths, [2013] FWCFB 2814, at [12]; with reference to Amcor Limited v CFMEU.

 23 Ibid, at [13].

 24   Clause 53.2, 54.2

 25   Clause 64.2

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