1
Fair Work Act 2009
s.604—Appeal of decision
United Firefighters’ Union of Australia
v
Country Fire Authority
(C2013/5359)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER RYAN SYDNEY, 6 NOVEMBER 2013
Appeal against decisions [[2012] FWA 8490], [[2012] FWA 9022], [[2012] FWA 9261] and
[[2013] FWC 4814] of Commissioner Roe at Melbourne on 3, 23, 29 October 2012 and 18
July 2013 respectively in matter number C2012/2410.
Introduction and Background
[1] This appeal concerns the extent to which the Country Fire Authority (CFA) may,
under the terms of the Country Fire Authority/United Firefighters Union of Australia
Operational Staff Enterprise Agreement 2010 (the Agreement), use instructors in operational
duties. Clause 99.16 of the Agreement provides:
“99.16. Operational Use of Instructors
99.16.1. The role of Instructors is the coordination, development/preparation and
delivery of training consistent with their agreed position description.
Instructors skills and experience may be utilised to mentor career staff or
volunteers.
99.16.2. An Instructor will not:
(a) Perform operational response duties normally undertaken by Career
Firefighters, Station Officers, Operations Officers, Operations
Managers and/or volunteers.
(b) Be a Regional Duty Officer or perform Regional Duty Officer (RDO)
activities.
99.16.3. Provided that Firefighters and Station Officers are not available to perform
such roles, Instructors may be used in a functional or specialist role within an
Incident Management Team (IMT) at a type 2 or 3 incident and also be
utilised for the following roles:
[2013] FWCFB 8165
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 8165
2
(a) Air Attack Supervisor
(b) Air Base Manager
(c) Air Observer
(d) Aircraft Officer
(e) Fire Investigator Wildfire/Structural
99.16.4. The Instructors must have the requisite qualifications and endorsement by the
Chief Officer. When considering the requirement to utilise instructors in a
functional or specialist role within an IMT, the Operations Manager should
have regard to offering these operational opportunities to trained firefighters
and Station Officers who require skills acquisition, skills maintenance, further
experience and/or mentoring to become “endorsed” or maintain their skills.
99.16.5. For instructors who do not have 5 years operational experience, the parties
agree to develop career opportunities and career paths (other than into
operational firefighting). The parties will seek the assistance of FWA by way
of conciliation to help to achieve this outcome.
99.16.6. Notwithstanding the above provisions, the parties agree in principle for
instructors who have completed a CFA recruit course to be utilised
operationally. In this context, the parties will develop guidelines which must
be agreed between the parties for such use within 3 months. To avoid any
doubt the instructors that are referred to above who may be used for
operational purposes must be instructors who at the time of their appointment
as instructor were already appointed to one of the CFA firefighting ranks
referred to in clause 11 above. Such guidelines will include the use of
operational instructors at protracted fires and incidents and other fire
incidents on a case by case basis as agreed by the parties.
99.16.7. Given the inherent dangers of firefighting and the need to ensure safety of all
CFA employees and volunteers, Instructors will be under the command of the
Chief Officer.”
[2] It can be seen that although clause 99.16.2(a) imposes a general prohibition upon the
use of instructors to perform operational duties, clause 99.16.6 operates as an exception to this
prohibition. Clause 99.16.6 had not appeared in previous CFA agreements covering
operational staff. It required the “parties”, namely the CFA and the United Firefighters’ Union
(UFU), to negotiate guidelines for the operational utilisation of firefighters subject to the
parameters identified in the provision within the first three months of the operation of the
Agreement (that is, by 28 January 20111).
[3] Regrettably the CFA and the UFU did not comply with their obligations in this
respect. In April 2011 the CFA applied to the Commission for it to deal with a dispute
between the parties about a number of matters, including the operational use of instructors,
pursuant to the dispute resolution procedure contained in clause 15 of the Agreement. That
provision (in clause 15.2.6) provides that the Commission could “utilise all its powers in
conciliation and arbitration to settle the dispute”. The dispute was allocated to Commissioner
1 Clause 4.1 of the Agreement provides that it shall come into force seven days after its approval. The Agreement was
approved by the Commission on 21 October 2010, and hence came into effect on 28 October 2010.
[2013] FWCFB 8165
3
Roe. The Commissioner conducted a number of conciliation conferences in respect of the
dispute, but no resolution was reached concerning the establishment of guidelines for the
operational utilisation of firefighters.
[4] The CFA lodged a fresh dispute notification concerning its capacity to utilise
instructors operationally on 30 January 2012. The Commissioner conducted further
conciliation conferences concerning the matter, but without success. The CFA then applied
for the Commission to arbitrate the matter by reference to the competing proposals for
guidelines for the operational use of instructors advanced by the parties. This was met by two
jurisdictional objections by the UFU. The first was that the specific requirement in clause
99.16.6 for agreement between the parties as to guidelines for the operational use of
instructors precluded the Commission from arbitrating that matter at all under clause 15.2.6.
The second, which was argued in the alternative, was that to the extent that the Commission
could arbitrate on the issue, it had no power under clause 99.16.6 to allow for operational use
of instructors other than at “protracted fires and incidents” and at “other fire incidents on a
case by case basis as agreed by the parties”. This second argument was based on the
contention that the last sentence of clause 99.16.6 was to be interpreted as an exhaustive
statement as to what was permitted to be included in any guidelines concerning the
operational use of instructors. It was deployed by the UFU principally to defeat the CFA’s
proposal that the guidelines to be arbitrated permit instructors to be used operationally to meet
minimum staffing levels in fire stations.
[5] In a decision issued on 3 October 20122 (First Decision), the Commissioner rejected
both of these jurisdictional objections. In respect of the second, the Commissioner’s reasoning
was as follows:
“[43] I am satisfied that the wording does not restrict the guidelines for operational use
to protracted fires and incidents and other fire incidents. The words “such guidelines
will include” must have some work to do.
...
[46] I am satisfied that the words mean that the guidelines will at a minimum extend
operational use to include the use of operational instructors at protracted fires and
incidents and other fire incidents on a case by case basis as agreed by the parties. I
accept that the guidelines could extend further. However, given Clause 99.16.1 and
99.16.2 operational use of instructors is clearly intended to be the exception rather
than the rule. The extension of operational use of instructors is to be approached
conservatively. In this context the example given is designed to suggest the nature of
the limits to be placed upon the extension of operational use.
[47] The words “as agreed between the parties” in the example given conveys that it is
the intention for the parties to reach agreement on the guidelines and also that given
that operational use is the exception rather than the rule a careful and consultative
approach must be utilised. I read the example as restricting the type of other examples
of operational use which could be included in the guidelines but it does not limit it to
the specific example. Therefore it cannot mean that any other examples must only
operate with prior approval of the parties on a case by case basis. In other words I do
2 [2012] FWA 8490
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not accept that there can be no other types of operational use except where the parties
give prior approval in each case.
[48] The example does however regulate the nature of the guidelines in case of
specific fire incidents other than protracted fires and incidents so that operational use
at other fire incidents require agreement of the parties on a case by case basis.”
[6] The Commissioner also stated the following conclusions concerning the proper
interpretation of the last sentence of clause 99.16.6:
“[41] I am satisfied that read in context the words on a case by case basis as agreed by
the parties is restricted to other fire instances and is not intended to apply to protracted
fires and incidents. The context suggests that the guidelines will provide for
operational use, additional to that provided for by Clause 99.16.3, at protracted fires
and incidents generally where this is required operationally and where use of other
firefighting resources has been fully exhausted. The context suggests that the
guidelines will provide for broader use at other fire incidents only on a case by case
basis as agreed by the parties. The CFA in their proposed guidelines have provided
that operational use for protracted fires and incidents does not require any provisions
for notification or approval of the UFU. The UFU in their proposed guidelines require
such approval.”
[7] At the conclusion of the First Decision, the Commissioner stated his broad conclusions
about the merits of the competing proposals for guidelines3, which included that the
guidelines should make provision for the use of instructors to maintain minimum staffing
levels at fire stations subject to a number of controls and that the guidelines should initially
operate on a trial basis only during the period 15 October 2012 to 1 April 2013. He directed
the parties to draft guidelines consistent with his conclusions4, and also directed the parties to
prepare further submissions and set the matter down for a further hearing “in respect to any
aspect of the guidelines which I may have inadvertently failed to resolve or any unintended
consequences I failed to identify”.5 He indicated that he would then make a final decision
determining the guidelines.
[8] Having received additional submissions from the parties as contemplated in the First
Decision, the Commissioner then issued a further decision on 23 October 20126 (Second
Decision) responding to the matters raised in those submissions. The Commissioner identified
the main points in the UFU’s further submissions and responded as follows:
“[14] The UFU argues that inclusion of operational use to maintain minimum staffing in
the manner contemplated in paragraph 63 of the decision:
Is not contemplated by the example given in Clause 99.16.6 and therefore it is not
apparent why operational use to maintain minimum staffing is included in the
decision.
3 First Decision at [61]-[63]
4 First Decision at [65]
5 Ibid
6 [2012] FWA 9022
[2013] FWCFB 8165
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Does not place realistic limits which are consistent with a cautious or conservative
approach. Without the requirement for UFU agreement the UFU argue that it is
difficult to ensure that the objective is complied with.
Is not consistent with the requirement for agreement in respect to other fire
incidents in the example given in Clause 99.16.6 if this is the basis for the inclusion
of minimum crewing.
Is not consistent with the words protracted fires and incidents as minimum
manning is not necessarily associated with such incidents.
Is not consistent with the findings at paragraph 29 and 46 of the decision.
If the “other fire incidents” example does not apply then there is no requirement at
all to reach agreement between the parties. The requirement of the CFA to advise
the UFU is not consistent with this and to the extent that the decision interprets the
clause as allowing the CFA an unfettered discretion to use instructors at fire
stations then the UFU would have no protection based on the terms of the
Enterprise Agreement itself.
[15] I have found in my earlier decision that Clause 99.16.6 does not restrict
operational use to the example given. Minimum staffing is not covered by the example
about a fire or other incident given in Clause 99.16.6. On merit I have decided that
operational use for minimum staffing should be included based on the evidence of the
Chief Officer to which I referred. However, I have decided both as a matter of merit
and as a matter of the proper construction of Clause 99.16 and 99.16.6 in particular
that operational use for this purpose must be restricted and must be approached
conservatively and cautiously. For this reason I have provided that other options to fill
the vacancy must be exhausted, that the UFU must be advised in all cases and must be
advised prior to use except where this would compromise operational requirements,
that the guidelines for use can only be altered by agreement or otherwise consistent
with the Agreement processes, and that operational use pursuant to the guidelines
should operate on a trial basis and be reviewed to ensure that the objectives are being
met at the end of the trial period. The submission of the UFU does not convince me to
reconsider my earlier decision in respect to operational use for the purposes of
minimum staffing on a restricted and conditional basis for a trial period.”
[9] The Commissioner then went on to deal with some additional specific matters raised
by the UFU. This included a claim by the UFU that the guidelines should include a detailed
recall process to ensure that all steps to fill vacancies should be followed before instructors
were used to maintain minimum staffing levels at fire stations except where circumstances of
urgency and public and firefighter safety made it impracticable to do so. As to this matter, the
Commissioner concluded:
“[21] ... Although there are aspects of the UFU proposal which are clearly
inappropriate, I consider that specifying the currently utilised vacancy management
process would be appropriate and would be of assistance to the UFU and the CFA in
avoiding disputes in a situation where decisions are being made to meet operational
needs within tight time constraints. However, I have decided that if I am unable to
finalise this within the timeframe I now establish for the finalisation of the guidelines
then this will not be included and the matter will be further considered as part of the
trial. It would not be appropriate for me to determine the vacancy management process
as part of this dispute. The CFA agreed that the provision from the earlier draft should
be included in the guidelines. This should apply to the process of establishing whether
[2013] FWCFB 8165
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or not there are other practicable measures to fill the substantive vacancy for minimum
staffing purposes and also for level 2 and 3 incidents. The parties should attempt to
supplement this with a statement of the steps to be taken in the vacancy management
process.”
[10] The Commissioner then directed the CFA to prepare a revised draft of the guidelines,
and gave the UFU an opportunity to respond. He then indicated that he would hold a brief
hearing to finalise the guidelines, and issue a further decision publishing the guidelines to be
utilised for the purpose of the trial.7
[11] On 29 October 2012 the Commissioner issued a further decision8 (Third Decision) as
he had contemplated in the Second Decision. In that decision, he resolved the remaining issue
about the documentation of the steps in the vacancy management process referred to in the
Second Decision as follows:
“[3] ... The remaining issue was the inclusion of the detailed steps of the CFA Vacancy
Management Process in the guidelines in respect to operational use of instructors for
minimum staffing purposes. My decision in respect to this matter is set out at
paragraph 21 of the decision of 23 October 2012 [PR530503].
[4] I was unable to document the CFA Vacancy Management Process at this time. The
guidelines provide that the State Duty Officer must demonstrate that this process has
been applied prior to operational use for minimum staffing purposes. This is in the
context of the opening sentence of that part of the guidelines which provide that all
practical measures to fill the vacancy have been exhausted. The parties clearly
understand what the vacancy management process is as they apply it successfully on a
daily basis. The trial will reveal if there are any real issues around this.”
[12] The Commissioner then stated that the guidelines determined by him should operate
on a trial basis from 30 October 2012 until 1 April 2013. He directed that the parties should
then review the trial, and that any modification to the guidelines requested by either party in
the light of the review that was not agreed would be dealt with at a further hearing to be
convened upon request, with the objective being to finalise the guidelines by May 2013.9
[13] After the review was completed, the matter came back before the Commissioner, and
he issued a final decision in the matter10 (Fourth Decision). The Commissioner summarised
what occurred during the trial period in the following terms:
“[3] The CFA provided information that Instructors had not been used pursuant to the
guidelines during the trial period. They advised that two requests were made during the
trial period for operational use of Instructors and that the requests were dealt with in
accordance with the guidelines. Upon review the CFA advised that one of the incidents
was a request to fill a role not covered by the guidelines. In respect to the second
incident the CFA advised that relief was sought Statewide before an Instructor was
considered and it was then subsequently determined that no suitable Instructor was
7 Second Decision at [27]
8 [2012] FWA 9261
9 Third Decision at [7]
10 [2013] FWC 4814
[2013] FWCFB 8165
7
available. Both Instructors considered were located at Fiskville and the first was due to
deliver a course and the other was uncontactable. The need was eventually met by the
MFB.”
[14] The UFU ultimately did not seek any further modifications to the guidelines, and took
the position, “whilst reserving all of its rights”, that the Commission should finalise the
matter.11 The Commissioner thereupon determined the matter in the following terms:
“[16] The final resolution of this dispute is that the Guidelines at Attachment A to this
decision will apply to the operational use of Instructors pursuant to Clause 99.16.6 of
the Agreement subject only to amendments agreed or resolved consistent with the
Agreement.”
[15] The guidelines at Attachment A to the Fourth Decision were as follows:
“Guidelines for operational use of instructors pursuant to Clause 99.16 of the
Agreement
PURPOSE & APPLICATION
Provides direction when considering the operational use of Instructors
OBJECTIVES
Guidelines for the operational use of instructors are separate from provisions for
operational use for the purpose of mentoring of other firefighters as part of the
instructional role as provided for in clause 99.15 and Clause 99.16.1 and for the
purpose of the skills maintenance and development of instructors as provided for in
clause 99.19 and for the purpose of the Fiskville training facility as provided for in
Clause 99.21. Guidelines for other operational use pursuant to Clause 99.16 should
ensure that operational use of instructors must not compromise the following
objectives:
● The primary role of instructors is in training
● Operational use should not compromise the training responsibilities of
instructors
● All other practical alternatives to meet an operational need should be
exhausted including the redeployment and recall of other firefighters and the
use of overtime prior to the operational use of instructors
● The integrity of the system whereby adequate reliever resources are
employed consistent with the Agreement and that otherwise rostering for relief
on a voluntary basis is maintained
● The career opportunities, qualifications and job security of operational
firefighters and instructors are not diminished or compromised
Subject to the outcome of the review referred to in note at conclusion of this
document, it is considered that the following guidelines meet those objectives.
11 Fourth Decision at [9]
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DEFINITIONS
Instructor – External Appointment means an appointed Instructor who does not
hold a CFA operational rank.
Operational Instructor means an appointed or seconded Instructor who at the time of
their appointment to the Instructor role held a CFA operational rank and has
completed a CFA recruit course.
APPROVED ACTIVITIES
Instructor – External Appointment
Provided that Firefighters and Station Officers are not available to perform such roles,
Instructors may be used to fill a functional or specialist role within an IMT at a level 2
or 3 incident; in addition to the following;
● Air Attack Supervisor (AAS)
● Air Base Manager
● Air Observer
● Aircraft Officer
● Fire Investigator wildfire and / or structural
For an instructor to undertake any of the roles identified above, they must hold the
requisite qualifications and relevant endorsement from the Chief Officer.
Operational Instructors
Provided that Firefighters and Station Officers are not available to perform such roles,
Instructors may be used to fill a functional or specialist role within an IMT at a Level
2 or 3 incident.
In addition, where there is a Level 2 or 3 incident and Firefighters and Station Officers
are not available to perform the required roles relating to the incident, Operational
Instructors may be deployed to perform those roles (which can include specialist
response activities) provided that:
a) Doing so does not result in them being unable to carry out scheduled training or in
the cancellation or postponing of scheduled training; and
b) They hold the requisite qualifications and relevant endorsement from the Chief
Officer applicable to the performance of the role.
Notification of the use of Operational Instructors for this purpose will be provided to
the UFU Office by the CFA on a case by case basis at the earliest opportunity and the
notification will indicate the time and location details of the incident and the nature of
the incident, and the CFA officer who gives such notification to the UFU Office shall
also ensure that the CFA’S Employee Relations Unit is informed as soon as
practicable of the notification given to the UFU Office.
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Operational use for fire station crewing – Operational Instructors Only
Operational Instructors may be deployed to a fire station to maintain minimum staffing
subject to the following conditions;
● All practicable measures must have first been exhausted to fill the relevant
vacancy with substantive Firefighters and Station Officers; this includes
overtime and relief. Where it is practical and it does not compromise
operational requirements, those measures are to include filling the relevant
vacancy through relief from outside the relevant district. In particular for the
State Duty Officer to approve the use of Operational Instructors for this
purpose, the following must first be demonstrated:
○ The vacancy management process used to fill a vacancy with career
Firefighters and Station Officers has been applied,
○ Overtime and relief provisions have been fully investigated,
○ No practical solution has identified available career Firefighters or
Station Officers to be used for this work.
● Approval must be provided by the State Duty Officer (SDO) to utilise
Operational Instructors for this purpose.
● When a decision is made to use an Operational Instructor for station
crewing, the CFA will notify the UFU office prior to instructors being used for
that purpose except where it would compromise operational requirements (in
which case the notification will be given at the earliest opportunity).The
notification will include time and location details, the nature of the operational
requirement and/or incident, detail the steps that have been taken in order to
satisfy the requirement of exhausting all practicable measures to fill the
substantive vacancy mentioned in the first dot point including advice as to the
outcomes of taking those steps. The CFA officer who gives such notification to
the UFU Office shall also ensure that the CFA’S Employee Relations Unit is
informed as soon as practicable of the notification given to the UFU Office.
● The use of an Operational Instructor for this purpose should not directly
result in the cancellation of a planned / programmed training session. This
includes the time off duty / rest period required following their shift.
Application
● The availability of an Operational Instructor must consider the hours of work
already performed.
● Any Operational Instructor undertaking these duties will be provided with a
rest period as required prior to returning to normal duties.
● Any Operational Instructor shall be paid overtime where applicable in
accordance with the provisions in the Agreement. This time cannot be
accumulated and later taken as time in lieu. The instructor shall receive any
other allowances or entitlements as provided for in their terms and conditions
of employment when undertaking these authorised duties.
● The instructor will operate at their substantive operational rank when
undertaking these duties.
[2013] FWCFB 8165
10
Higher Duties or Relief to Operations Officer Positions –
Operational Instructors Only
● Operational Instructors who are qualified to do so, are able to provide relief
to an Operations Officer position, provided there is no Operations Officer or
Station Officers able to perform the role.
● Operational Instructors at Fiskville where qualified to do so, are able to
provide relief to those Operations Officer positions at Fiskville in the first
instance.
GENERAL
● Instructors are able to participate in any after action review or operational
debrief.
● Any planned or proposed use of an instructor to perform a functional role
through the fire danger period as defined by a districts preparedness planning,
must be discussed with, and be agreeable to the Operations Manager, MTD
and the Instructor concerned.
Operation and Review
These guidelines are the policy which the CFA will apply to the operational use of
instructors pursuant to Clause 99.16.6 of the Agreement subject only to amendments
agreed or resolved consistent with the Agreement.”
The UFU’s appeal
[16] On 30 July 2013 the UFU filed a notice of appeal, in which it sought permission to
appeal, in respect of the First, Second, Third and Fourth Decisions. Four grounds of appeal
were identified. The first and third grounds of appeal challenged the Commissioner’s
conclusion in the First Decision, which was repeated in the Second Decision, that clause
99.16.6 permitted guidelines concerning the operational use of instructors at fire stations to
maintain minimum staffing levels. The second ground challenged the Commissioner’s
conclusion in the First Decision that he had jurisdiction under clause 15.2.6 to arbitrate upon
the content of the guidelines notwithstanding the requirement in clause 99.16.6 for agreement
between the parties as to the guidelines. The fourth ground was that the Commissioner erred
in the Third and Fourth Decisions by not including the extant or any vacancy management
process in the guidelines.
[17] In relation to the second ground of appeal, the UFU would presumably have relied
upon the reasoning of the Full Bench in United Firefighters’ Union of Australia v
Metropolitan Fire and Emergency Services Board12 at paragraphs [28]-[29]. However, shortly
before the hearing of the UFU’s appeal, the UFU gave notice, by way of a proposed amended
appeal notice, that it wished to abandon the second ground. The amendment was not opposed
by the CFA, and therefore at the hearing of the appeal we granted the UFU leave to amend.
Accordingly the jurisdiction of the Commissioner to arbitrate the matter was not put in issue
in the appeal and therefore did not arise for our consideration.
12 [2013] FWCFB 2301
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Extension of time
[18] The CFA contended that the Commissioner’s determinations which were challenged in
the UFU’s grounds of appeal were all contained in the First, Second and Third Decisions
issued in 2012, and consequently that, absent the grant of an extension of time, the appeal was
incompetent having been lodged outside the prescribed 21-day time limit.13 The CFA
submitted that no such extension of time should be granted.
[19] We do not consider that the grant of any extension of time is necessary. It was the
Fourth Decision which determined to finality the dispute between the parties. The First,
Second and Third Decisions are properly to be characterised as interlocutory decisions which
dealt with issues which it was necessary to decide in order for the Commissioner to be able to
make his final determination as to the content of the guidelines. The applicable legal principle
is that, on an appeal from a final decision or order, an appellate court can correct any
interlocutory decision or order which affected the final result.14 The Commissioner’s
conclusions that are challenged by the UFU’s appeal plainly affected the final result, being the
guidelines put into effect by the Fourth Decision. The UFU’s appeal against the Fourth
Decision was filed within the prescribed time period and is therefore a competent appeal
(leaving aside for the moment the question of permission to appeal) in which the UFU may
legitimately argue all its grounds of appeal.
Scope of the operation of clause 99.16.6
[20] The UFU’s primary ground of appeal is that the Commissioner erred in determining
that clause 99.16.6 of the Agreement did not confine any guidelines concerning the
operational use of instructors to their use “at protracted fires and incidents and other fire
incidents on a case by case basis as agreed by the parties” and permitted instructors to be used
to maintain minimum staffing levels at fire stations. The UFU submitted that the last sentence
of clause 99.16.6 was to be construed as an exhaustive statement of the type of operational
duties which instructors could be required by guidelines to perform, and by making guidelines
which went beyond this, the Commissioner decided the matter in a way that was inconsistent
with the Agreement and therefore beyond power by reason of s.739(5) of the Fair Work Act
2009 (the Act). Section 739(5) provides:
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with
this Act, or a fair work instrument that applies to the parties.
[21] In the course of its submissions, the UFU made various criticisms of the reasoning
process by which the Commissioner reached his conclusion as to the scope of clause 99.16.6,
including that the Commissioner impermissibly took merit considerations into account in
reaching that conclusion. We do not think there is any real substance to these submissions, but
ultimately they do not matter much because the relevant question is whether the
Commissioner’s conclusion was consistent with the correct interpretation of clause 99.16.6.
[22] The context of clause 99.16 as a whole guides the interpretation of clause 99.16.6.
Clause 99.16.2 prohibits the use of instructors to perform operational response duties
normally undertaken by various designations of firefighters. However, in what follows in
13 Fair Work Australia Rules, rule 12.3
14 Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478
[2013] FWCFB 8165
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clause 99.16, two exceptions to this prohibition are established. The first, in clause 99.16.3, is
that instructors may be used in a “functional or specialist role within an Incident Management
Team (IMT) at a type 2 or 3 incident” and also in five other specified specialist roles. Clause
99.16.3 defines, in fairly precise terms, an area of operational work to which the prohibition in
clause 99.16.2 does not apply.
[23] The second exception, in clause 99.16.6, is less precisely expressed. It records, in the
first sentence, that the parties had agreed in principle for instructors who had completed a
CFA recruit course “to be utilised operationally”. It is clear that, for clause 99.16.6 to have
utility, the in-principle agreement must have contemplated the operational use of instructors
beyond that provided for by clause 99.16.3. The content of the in-principle agreement was, as
the second sentence of clause 99.16.6 makes clear, intended to be determined by guidelines
negotiated between the parties within a three month timeframe. In that context, the
requirement for mutual agreement between the parties concerning the guidelines served as the
principal control upon the permitted operational use of instructors under those guidelines.
However, the last two sentences of clause 99.16.6 added two requirements applicable to those
guidelines. The first, which is non-controversial, was that only those instructors who at the
time of their appointment were already appointed to a designated firefighting rank could be
used operationally. Self-evidently, the purpose of this provision was to ensure that only those
instructors who had operational recognition and experience performed operational duties. The
second requirement, in the last sentence of clause 99.16.6, is at the core of the controversy. To
repeat, it provides that “Such guidelines will include the use of operational instructors at
protracted fires and incidents and other fire incidents on a case by case basis as agreed by the
parties”.
[24] The parties agreed to, and we accept, two propositions about the interpretation of this
sentence. The first is that “protracted fires and incidents” is, for all practical purposes, to be
read as a reference to the type 2 and 3 incidents referred to in clause 99.16.3. The
consequence of this is that that sentence must be referring to operational duties in relation to
protracted fires and incidents in addition to the functional and specialist roles identified in
99.16.3. The second is that the words “on a case by case basis as agreed by the parties” apply
only to “other fire incidents” and not “protracted fires and incidents”, so that no case by case
agreement is required for the performance of operational work by instructors on “protracted
fires and incidents”.
[25] The critical issue in contest concerning the last sentence of clause 99.16.6 was how the
expression “will include” was to be interpreted. The UFU submitted that, read in the context
of clause 99.16 as a whole, the expression served to limit what was included in the exception
to clause 99.16.2 identified in clause 99.16.6, so that the guidelines to be established under
clause 99.16.6 could not allow operational use of instructors beyond that identified in the last
sentence to that clause. In support of this submission, the UFU advanced three propositions:
(1) The use of the word “includes” at the head of a list of matters was capable of
bearing the interpretation that the list was intended to be exhaustive. The UFU
cited the High Court decision in YZ Finance Company Pty Ltd v Cummings15 in
support of this proposition.
15 (1964) 109 CLR 395
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(2) Clause 99.16.6 constituted a proviso to clause 99.16.2, and consequently
should be construed strictly.
(3) An expansive interpretation of clause 99.16.6 which allowed the operational
use of firefighters at fire stations meant that the exception created by the clause
was so broad as to render the prohibition in clause 99.16.2 completely otiose.
[26] We do not accept the UFU’s submission. The word “include” is not in its ordinary
meaning a word of exclusion, as Menzies J made clear in YZ Finance Company Pty Ltd v
Cummings.16 That case concerned the interpretation of a statutory provision which defined a
word used in a particular section by providing that it “include[d]” what was enumerated
thereafter. The majority in that case took the approach that while the use of the word
“includes” in a definition section in a statute usually operates to enlarge the meaning of the
word or phrase being defined, where the matters enumerated are within the natural import of
the word or expression being defined, the definition may be taken as being an exhaustive
rather than an expansive one so that “includes” is treated as equivalent to “means and
includes”.17 However, the last sentence of clause 99.16.6 is not a definition provision. Its
purpose is not to define, for example, what the expression “utilised operationally” means in
the clause. Rather, it is directed at what is required to be contained in the guidelines to be
developed by the parties. For that reason, the approach taken in YZ Finance Company Pty Ltd
v Cummings (and cases of similar ilk) is of little relevance to the construction of the last
sentence of clause 99.16.6. There is no reason not to give “include” its ordinary, non-
exclusionary meaning, so that as part of the phrase “will include”, it is to be interpreted as
identifying the matters which must form part of the guidelines to be developed by the parties,
or, as the Commissioner described it, the “minimum content” of the guidelines. The context
favours that interpretation: a minimum content provision was necessary because, absent such
a provision, the requirement upon the parties to agree to guidelines would be totally
undirected. Insofar as clause 99.16.6 was regarded by the UFU as representing a “significant
concession” won by the CFA in negotiations for the Agreement18, the concession would not
have value or content unless there was a guarantee that the guidelines would at least deal with
the operational use of instructors beyond what was previously permitted in certain specific
ways.
[27] The UFU’s approach effectively requires “will include” to be read as “will only
include”. There is no warrant in the text of the Agreement to read the provision that way.
Clause 99.16.6 operates harmoniously with the rest of clause 99.16 if its last sentence is given
its ordinary meaning. It does not render otiose the prohibition in clause 99.16.2, contrary to
the UFU’s submission, because the intention of the parties, as expressed in clause 99.16.6, for
the parties to reach agreement about the content of the guidelines was the effective safeguard
against unrestricted operational use of instructors.
[28] The UFU’s submission that clause 99.16.6, as a proviso to clause 99.16.2, was to be
strictly construed does not take the issue any further. In support of its submission that
“Exceptions should be strictly construed”, the UFU cited an American text and an American
authority.19 It is not readily apparent that in Australian law provisions which may be
16 At 405
17 See 398-399 per McTiernan J
18 See First Decision at [25]
19 Footnote 27 of the UFU’s written submissions.
[2013] FWCFB 8165
14
characterised as “exceptions” or “provisos” should be interpreted other than in accordance
with standard principles of construction; in Re Union of Postal Clerks and Telegraphists; Ex
parte Australian Telephone & Phonogram Officers’ Association for example, a proviso in a
union’s eligibility rule was construed not “liberally” but “objectively”.20 In any event,
construing the text of clause 99.16.6 in accordance with its ordinary meaning does not involve
either an expansive or a narrow construction, but one which gives effect to the intention of the
parties as expressed in the language they used in their Agreement.
[29] Accordingly we consider that the Commissioner’s interpretation of clause 99.16.6 was
correct, and that he was not precluded from allowing the operational use of instructors to
maintain minimum staffing levels at fire stations. It follows that s.739(5) was not
contravened.
Agreement on a case by case basis
[30] The UFU also advanced a subsidiary argument that the guidelines, in allowing the
operational use of instructors at fire stations, failed to give effect to the requirement in the last
sentence of clause 99.16.6 that the use of instructors at “other fire incidents” be “on a case by
case basis as agreed between the parties”. The UFU pointed to the fact that although the
guidelines determined by the Commissioner required notification to the UFU when an
instructor was to be utilised for minimum staffing purposes, UFU agreement was not
required.
[31] We cannot accept this submission in the terms that it was put. Clause 99.16.6 only
requires agreement “between the parties” (which, it was accepted by the CFA, meant it and
the UFU) in the case of “other fire incidents” (being fire incidents which were not “protracted
fires and incidents”). The mere assignation of an instructor to a fire station does not
necessarily involve attendance at an “other fire incident”; the instructor may simply perform
station duties, or may be called to assist at a “protracted fire or other incident”, or called out to
some other type of emergency that is not a fire incident, such as a chemical spill. A case by
case agreement between the parties is not required by clause 99.16.6 in order for an instructor
to perform any of these duties.
[32] However, the UFU’s submission does raise the question as to what would happen if,
while an instructor was assigned to a fire station, there was a necessity for the fire station
crew to attend an “other fire incident”. It appears to us to be unlikely that it would be
practicable for the agreement of the UFU to be obtained at that point. If it were a natural
corollary of the assignment of an instructor to a fire station that they might be called out to
assist at an “other fire incident”, then given that the consent of the UFU is not required under
the guidelines for that assignment to occur, it seems to us that there is at least a possibility that
the guidelines would not in operation be consistent with the last sentence of clause 99.16.6.
[33] This issue was not raised in the terms we have discussed it in the proceedings before
the Commissioner, and was consequently not dealt with by the Commissioner. The UFU’s
case was simply one of blanket opposition to the assignment of instructors to fire stations to
maintain minimum staffing levels. Nor was it raised in these terms by the parties to the
appeal; it was raised by us in the course of argument at the hearing. We note at this point that
upon the issue being raised, counsel for the CFA attempted to argue that the reference in the
20 (1986) 66 ALR 227at 235 per Mason, Brennan and Dawson JJ.
[2013] FWCFB 8165
15
last sentence of clause 99.16.6 to “the use of operational instructors ... at other fire incidents”
should not be read as referring to the attendance of an instructor at a fire incident as a result of
having been assigned to a fire station to maintain minimum staffing levels, so that case by
case agreement between the parties was not necessary in that scenario. It is sufficient to say
that we reject that submission.
[34] We do not consider that we are in a position to resolve this matter ourselves. There is
simply not the evidence before us to allow us to consider this issue in a practical way. We do
not, for example, have any clear understanding of the practical likelihood of the scenario we
have postulated actually occurring. Nor do we have any appreciation about what the expected
role of an instructor, who is a qualified firefighter, would be if he or she was present at a fire
station when there was a call-out to attend an “other fire incident”.
[35] We have considered whether, under s.607(3)(c) of the Act, this issue should be
remitted to the Commissioner to deal with. We have decided not to take this course. The
practical significance of this issue is unclear. We note that during the trial period, which lasted
for a considerable period, no instructor was actually required to attend a fire station to
maintain staffing levels, let alone be directed from there to attend a fire incident. The nominal
term of the Agreement has expired, and the parties are negotiating a replacement agreement,
so they have the opportunity to deal with the issue directly in their new agreement. The
bushfire season is upon us. In those circumstances, we are not inclined to force the parties to
engage in a continuation of what have already been lengthy proceedings. We consider the
appropriate course to be that if either the UFU or the CFA form the view, in the light of this
decision, that the issue we have identified requires further consideration and resolution by the
Commission, it should notify a new dispute at an appropriate time and request the allocation
of the matter to the Commissioner. The dispute can then be determined having regard to the
preliminary views we have expressed about the matter.
Vacancy management process
[36] The UFU’s final ground of appeal was that the Commissioner erred in not specifying
in the guidelines the steps required to be undertaken by the CFA in carrying out the vacancy
management process. We do not consider that the Commissioner erred in this connection. The
determination of the content of the guidelines in this respect constituted an exercise in
discretionary decision-making. The Commissioner described, in the guidelines, the vacancy
management process as that which was “used to fill a vacancy with career Firefighters and
Station Officers”. The Commissioner found in the Fourth Decision that the parties understood
what the application of the vacancy management process involved, but he was unable to
document it at that time. We do not consider that that reasoning and conclusion involved any
error by the Commissioner in the exercise of his discretion.
Disposition of the appeal
[37] In the dispute resolution procedure in the Agreement, clause 15.7 provides that a
decision made by the Commission to resolve a dispute under the procedure “may be
appealed”. That language is not apt to create a right of appeal such as to displace the
requirement in s.604(1) of the Act for an appellant to obtain permission to appeal.21 Because
21 Cf. Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555 at [15]-[28]; SDAEA (Qld Branch) v
Woolworths Limited [2013] FWCFB 2814 at [22]
[2013] FWCFB 8165
16
the appeal has raised issues potentially affecting the practical performance of firefighting
duties, we consider that the public interest is attracted, and therefore that permission to appeal
should be granted. Because, for the reasons we have stated, the UFU has not succeeded in
respect of its grounds of appeal in demonstrating any error on the part of the Commissioner,
we dismiss the appeal.
VICE PRESIDENT
Appearances:
T. Dixon of counsel for the United Firefighters’ Union of Australia
T. Jacobs of counsel for Country Fire Authority
Hearing details:
2013.
Melbourne:
15 October.
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