United Firefighters' Union of Australia v Transfield Services

[2015] FWC 2813

[2015] FWC 2813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters’ Union of Australia
v
Transfield Services
(C2014/3147)

COMMISSIONER WILSON MELBOURNE, 23 APRIL 2015

Application for the Fair Work Commission to deal with a dispute; interpretation of the agreement; whether a range incident allowance is payable.

[1] The United Firefighters’ Union – Victorian Branch (UFU) has made an application to the Fair Work Commission (FWC) to deal with a dispute in accordance with a dispute settlement procedure contained within the Transfield Services GSS (Vic) and United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2011 1 (the 2011 Agreement). The Agreement has application to the employment of persons by Transfield Services (Aust) Pty Ltd. at HMAS Cerberus, the Puckapunyal Military Base, and the RAAF Base, East Sale and other sites within Victoria.

[2] The 2011 Agreement provides the following for the resolution of disputes arising between the parties;

“2.2 DISPUTE RESOLUTION

There shall be effective means of consultation between the employer, its employee(s) and the Union on all matters pertaining to the employment relationship, all matters arising under this agreement or under the National Employment Standards and the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance.

2.2.2 Step 1 The dispute or grievance shall be submitted by the employee representative and/or employee(s) to the employee’s immediate supervisor.

2.2.3 Step 2 If not settled at Step 1, the matter shall be submitted to the Senior Station Officer, Station Officer or GSS Site Manager as appropriate.

2.2.4 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.

2.2.5 Steps 1 - 3 Must be concluded within a period of ten business days.

2.2.6 Step 4 If the matter is not settled at Step 3, the dispute or grievance shall be formally submitted in writing to the officer responsible for Industrial Relations, setting out details of the dispute or grievance and, where appropriate, with supporting documentation. Such officer shall convene a meeting of the parties within a period of one (1) week of receipt of such submissions and endeavour to reach a satisfactory settlement.

2.2.7 Step 5 If the matter is not settled following progressions through the disputes procedure it may be referred by the Union or the Transfield Services to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.

2.2.8 While the above procedures are being followed , including the resolution of any dispute by FWA pursuant to Step 5, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No Party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause. Where a dispute on a bona fide health and safety issue exists, work shall continue as usual unless an employee has a reasonable concern about an imminent risk to his or her health.

2.2.9 Notwithstanding anything contained in this clause, the parties shall be free to exercise their rights if the dispute is not finalised without delay.

2.2.10 A decision of FWA under this clause may be appealed. A dispute is not resolved until any such Appeal is determined.”

[3] Section 739 of the Fair Work Act 2009 (the Act) provides for the FWC to deal with a dispute if a term such as clause 2 requires or allows such dealing. Subsection 739(6) requires that the FWC 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 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 2011 Agreement.

[4] The evidence and submissions in this matter consists only of a short submission by the UFU, together with the initiating application of the Union. Transfield Services were given an opportunity to file material, but did not do so. In addition to the material that was filed by the parties, I take into account the content of an Agreed Statement of Facts, which was drafted by me and put to the parties for their comment and amendment before finalisation.

[5] The dispute relates to the correct payment of an allowance contained within clause 4.7.9 of the 2011 Agreement, which provides for the payment of an allowance in certain circumstances to firefighters called upon to respond to events at the Puckapunyal Military Base. Clause 4.7.9 is within clause 4.7, which comprehensively sets out the allowances payable under the Agreement. In all, 10 allowances are referred to in the subclauses of 4.7. The relevant parts of clause 4.7 and clause 4.7.9 provide the following;

“4.7 ALLOWANCES

All allowances under this clause shall increase by the same percentage, and date of effect, as increases in the wage for a Qualified Firefighter, namely 3.0% in 2012, and 1.6582% in 2013, calculated to the nearest one (1) cent. Allowances are summarised in Appendix E – Table of Allowances.”

4.7.1 - 4.7.8 - omitted

“4.7.9 Range Incident Allowance

A Firefighter who responds to a Range incident within the Puckapunyal Military Area shall be entitled to an allowance of $80.00 per incident.”

4.7.10 - omitted

[6] Clause 4.7 is in turn a part of clause 4, entitled “Rates of Pay and Related Matters”. It is not argued that any part of clause 4 other than the first paragraph and clause 4.7 has relevance to this matter. The other matters dealt with in clause 4 include career paths and opportunities (clause 4.1); wages (4.2); higher duties (4.3); accident pay (4.4); modified alternative duties (4.5); and uniform and equipment (4.6).

[7] It is noted that because of the provision of the first paragraph of clause 4.7, which provides for periodic increases to allowances provided for under the 2011 Agreement, the quantum of the allowance payable to an eligible firefighter is now greater than the amount referred to in the above clause. Clause 4.7 also refers to allowances being “summarised in Appendix E - Table of Allowances”.

[8] Appendix E sets out the following;

APPENDIX E

TABLE OF ALLOWANCES

Allowance	Current	FIRST P/P ON OR AFTER 1 NOV 11	First p/p on or after 1 Nov 12	First p/p on or after 1 Nov 13
Meal Allowance cl 4.7.1 (i)	$12.93	$13.40	$13.80	$14.03
Spoilt Meal Allowance cl 4.7.1 (a)	N/A	$14.98 per incident	$15.43 per incident	$15.69 per incident
Travelling Allowance cl 4.7.2 (ii) and (iii)	$0.71 cents per kilometre	$0.74 cents per kilometre	$0.76 cents per kilometre	$0.77 cents per kilometre
First Aid Allowance cl 4.7.5	$13.80	$14.30	$14.73	$14.98
Watchroom Allowance cl 4.7.6	$0.55 cents per hour	$0.65 cents per hour	$0.67 cents per hour	$0.68 cents per hour
SSO and SO (Day Shift) Availability Allowance per week cl 4.7.8	SO: $76.33 SSO: $83.00	SO: $79.08 SSO: $85.99	SO: $81.45 SSO: $86.57	SO: $82.80 SSO: $88.00
Heavy Rescue Allowance cl 4.7.9	N/A	$80.00 per incident	$82.40 per incident	$83.77 per incident
Aviation Qualification Allowance cl.4.7.10	N/A	$20.00 per week	$20.60 per week	$20.94 per week
Allowance for a Recall that is before and continuous with the normal commencement of a rostered shift with at least 24 hours notice. cl. 6.5.1. (iii) (a)	N/A	$50.00	$51.50	$52.35
Allowance for a Recall that is not before and continuous with the normal commencement of a rostered shift with at least 24 hours notice. cl. 6.5.1. (iii) b)	N/A	$75.00	$77.25	$78.53
Qualifications Allowances cl.4.7.3	Note: The allowances below only apply to Firefighters who commenced employment prior to 1 October 2009 which was the date of variation of the 2005 agreement.
IFE Grad’ Certificate or Fire Technology Certificate	$11.41	11.82	$12.17	$12.38
IFE Grad’ Certificate and Fire Technology Certificate	$17.61	$18.25	$18.79	$19.10
IFE Membership and Grad’ Certificate	$21.84	$22.63	$23.31	$23.69

[9] There are differences between the language employed in the allowances referred to in the paragraph titles used in clause 4.7 and those used in the first column of Appendix E. For example;

• Clause 4.7.1 refers to “meal allowances” in the plural, whereas appendix E refers to a single Allowance;

• Clause 4.7.2 refers to “travelling allowances and expenses”; whereas appendix E refers only to a “Travelling Allowance”;

• Clause 4.7.4, which refers to reimbursement of driving licence fees is not contained within Appendix E; which is most likely explained by the fact that there is not an allowance rate specified by the clause;

• Similarly clause 4.7.7, which deals with allowances and expenses associated with attendance at training facilities, without providing for a monetary allowance is also not referred to in Appendix E;

• The allowance referred to in clause 4.7.8 as an “Availability Allowance” is referred to in Appendix C as “SSO and SO (shift) availability allowance”.

[10] In addition to these variations, the name of the allowance connected with clause 4.7.9 is not a “Range Incident Allowance”, but is instead referred to in Appendix E as a “Heavy Rescue Allowance”.

[11] It is noted that, in addition to dealing with the allowances provided for in clause 4.7, Appendix E also provides allowance rates for two allowances contained in clause 6.5.1.

[12] The 2011 Agreement commenced its operation on 19 December 2012 and has a nominal expiry date of 31 October 2014. It replaces an earlier agreement, the Transfield Services GSS (Vic) and United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue Certified Agreement 2005 (the 2005 Agreement). 2 The 2005 Agreement in turn replaced the Transfield Services GSS (Vic) and United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue, Certified Agreement 2002 (the 2002 Agreement).3

[13] The following matters of fact have been agreed by the parties and I consider it appropriate to take them into account in my decision in this matter;

• The 2011 Agreement covers the employment of approximately 25 firefighters employed by Transfield Services at the Puckapunyal Military Base.

• References in the 2011 Agreement to the Puckapunyal Military Base (see cl.1.3.1) or to the Puckapunyal Military Area (see cl.4.7.9) are to the same thing.

• The Puckapunyal firefighters are primarily responsible for responding to structural fires and rescue operations. They come into the Range operations area to deal with personnel trapped in vehicles. The responsibility for responding to wildfires (bushfires) on the Range is the responsibility of the Range Operators and seasonal, wildfire-qualified firefighters engaged under an agreement with the AWU.

• The Defence Force fire’s artillery and other weaponry within the Range, and drive heavy machinery throughout the Range. These activities can be at any time of the year. Both the activities themselves, as well as the associated machinery and activities of Defence Force and other personnel can lead to fires or dangerous situations. In addition, the Puckapunyal Military Base is surrounded by bush and farmland, and fires that start outside of the base can move within the base, or otherwise become a risk to its operations. The Puckapunyal firefighters are called upon to provide fire fighting services in respect of either of these fire risks.

• The operation of heavy and other machinery within the Puckapunyal Military Base carries with it the risk of injury to Defence Force and other personnel. The Puckapunyal firefighters may be called upon to provide first responder services in relation to any incidents associated with the operation of such machinery within the operational part of the base.

• The Puckapunyal Military Base is organised as a small township, or cantonment, which is separated from the operational area by secure fencing and other security arrangements. The operational area is generally referred to as “the Range”

• The firefighters employed under the 2011 Agreement work from a fire station within the cantonment. They access the operational area upon the direction of, or with the permission of, a control station operated by the Defence Forces.

• Some entries of firefighters to the Range are planned, and others are not. In the year to June 2014, there were about 40 or so entries by firefighters onto the Range of which 32 were unplanned events. Nine of the unplanned entries involved attendance of casualties.

• A Range Incident Allowance is provided for in clause 4.7.9 of the 2011 Agreement The allowance was not provided for in either the 2005 or 2002 Agreements.

• While the parties recall the negotiations leading to the 2011 Agreement, and discussed the subject of the allowance, documents are not available that explain the different terminology relating to the allowance used in clause 4.7.9 and Appendix E. Likewise, documents are not available that show the purpose of the allowance or the intentions of the parties about the allowance.

[14] In the recent matter of The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 4, the Full Bench considered the principles associated with the interpretation of enterprise agreements and in the course of its decision set out the following guidance after careful consideration of the authorities laid out not only by the Commission and its predecessors, but also by the Courts;

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

1. The AI Act [Acts Interpretation Act 1901] 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.” 5

[15] Resolution of this dispute requires an interpretation of the 2011 Agreement. As already identified, there is an inconsistency in the two references to the relevant allowance;

• Clause 4.7.9 refers to the allowances as a “Range Incident Allowance” and indicates it will apply to response “to a Range incident within the Puckapunyal Military Area”.

• In Appendix E it is referred to as a “Heavy Rescue Allowance”.

[16] I am satisfied that this inconsistency means the terms of the 2011 Agreement that deal with the contested allowance do not have a plain meaning and instead the terms are ambiguous.

[17] Were clause 4.7.9 to be the only reference to the allowance in the Agreement, it would mean the allowance applied to the seemingly broad category of situations involving any response to a Range incident. The use of the indefinite article in the phrase “responds to a Range incident” implies that the verb “responds” is for responses to any range incident and not merely certain types of incident.

[18] On its own, such provision as the phrasing in clause 4.7.9 would imply the circumstance of firefighters responding to an event whether planned or not, with the concept of “response” implying something more than merely patrolling the Range, or proactively attending something within the Range.

[19] That view is reinforced by the phrasing within clause 4.7.9 of “response to a Range incident”. The use of the noun “incident” implies an event of some kind and its dictionary definition includes “an occurrence or event” or “something that occurs casually in connection with something else”. Likewise, the verb “responds” is defined relevantly as “to answer; give a reply in words” or “to make a return by some action as if in answer”. 6

[20] Notwithstanding these observations, the reference in Appendix E to the allowance being for a “Heavy Rescue Allowance” is a point of ambiguity.

[21] The use of the words “heavy rescue” in the table in Appendix E implies that payment of the allowance is only for responses to incidents involving rescues from heavy equipment. Potentially, the use of the words “heavy rescue” mean the allowance is not for payment on all occasions of response by firefighters to a Range incident, but merely for those involving “heavy rescue”, meaning presumably that payment is only for those incidents in which people required rescue from accidents involving heavy equipment – for example tanks, trucks or earthmovers and the like. Presumably, the limitation of the allowance to “heavy rescue” incidents means it would not be payable on occasion of other types of incident. For example, if the allowance was only payable in such circumstances of heavy rescue, it would not be payable for attendance onto the Range to put out a fire otherwise unconnected with a rescue from heavy equipment.

[22] Such implication sits at odds with the words within clause 4.7.9 that “[a] Firefighter who responds to a Range incident within the Puckapunyal Military Area shall be entitled to an allowance of $80.00 per incident.” Those words are within a well-phrased, self-contained sentence, which stands in contrast to the words in the table in Appendix E, which say, so far as is relevant, only that the “Heavy Rescue Allowance cl 4.7.9” is “$80.00 per incident”, subject to periodic adjustment. None of the material before me in this matter amounts to admissible evidence of surrounding circumstances that would assist in resolving the correct interpretation of the Agreement’s provisions.

[23] Such consistency as exists between the text of the two clauses allows that in either case, the allowance was payable only in relation to an incident, which is a distinguishing circumstance from it being payable for any reason connected with entry by firefighters onto the range. If this is the case, the allowance is distinguishable from a general allowance payable because of the circumstances experienced on the Range and is instead payable only in the specific circumstances of responding to an incident.

[24] Consideration of the 2011 Agreement as a whole leads to two propositions about the context and purpose of the Agreement’s terms as they relate to the disputed allowance;

• Firstly, that the purpose of clause 4 and especially clause 4.7, is to set out a comprehensive range of payments firefighters are entitled to, together with an elaboration of the conditions when particular payments are to be paid or not;

• Secondly, that the purpose of Appendix E is to tabulate the quantum of the allowances that are applicable at any given point throughout the life of the Agreement.

[25] As examples of the first proposition, clause 4.7.3 (Qualifications Allowance) specifies that holders of certain qualifications receive additional payments, but then specifies the payments will not apply to employees who commenced employment after “the date of variation of this agreement” which presumably means the date of the approval of the 2011 Agreement. As a further example, clause 4.7.4 (Driving Licence Fee Reimbursement) specifies reimbursement of driving licence fees with the conditioning that the payment is only when the employee is required to drive the employer’s vehicles and is not payable if employment commenced after 1 October 2009.

[26] In relation to the second proposition, Appendix E, largely contains a table of payment rates applicable for the duration of the Agreement, indexing the allowance amounts at certain agreed points by an agreed factor. The Appendix appears not to set out independent operative provisions that would condition payment of the relevant amounts.

[27] As a result, and after taking into account the context of the 2011 Agreement as a whole, and the allowance provisions in particular, I consider it unlikely that the parties intended the response to which the allowance related is limited only to responses by firefighters to heavy rescue incidents. There is nothing within clauses 4.7 or 4.7.9 that would give rise to that interpretation. As a result, I consider the use of the words “heavy rescue” in Appendix E as merely inconsistent with the words in clause 4.7.9, and that the words in that clause are to be preferred to the extent of the inconsistency between the two clauses.

[28] It follows then that the correct application of clause 4.7.9 is as follows;

1. The allowance is payable on those occasions a firefighter responds to an incident in the Puckapunyal Military Range.

2. Further, it follows that responding to an incident is a circumstance which is more than a firefighter conducting a preventative visit or routine entry to the Range. Instead, “[a] Firefighter who responds to a Range incident” is one who attends following a direction or request that can be expected to be documented and officially given. For the avoidance of doubt, this encompasses those situations where a firefighter draws an incident to the attention of the control station and is then directed to attend the incident.

[29]The Parties are directed to confer on the above findings. If the Applicant considers it necessary for an Order to be issued in the matter, it is to consult with the Respondent about the terms of a suitable draft Order, and to then submit the draft to the Commission within 14 days of the date of this Decision.

COMMISSIONER

 1   AE898769

 2   see AG846214; note that the 2005 Agreement was varied and its operative period extended in April 2009.

 3   see AG827972.

 4   [2014] FWCFB 7447

 5   Ibid, at [41]

 6   Macquarie Dictionary, 5th edition, 2009, Sydney, p.845 and p.1049

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