FEDERAL COURT OF AUSTRALIA

United Firefighters’ Union of Australia v Country Fire Authority [2007] FCA 853

INDUSTRIAL RELATIONS – award – certified agreement – interpretation – whether appointment of person employed as Instructor to rank of Leading Firefighter was in breach of term of award or certified agreement – power to appoint found in State Act – whether award or certified agreement restricted or regulated that power – whether specification of a period of “service” in definition of classification related only to service with particular employer, or with employer bound by award – whether definition prohibited appointment of person without specified length of service to classification – whether matrix of facts surrounding making of award and certified agreement, or custom and practice, gave “service” a meaning other than its ordinary meaning – whether act done in contravention of term of award or certified agreement void or ineffective  

WORDS AND PHRASES – “service”

Workplace Relations Act 1996 (Cth) ss 170LT, 178, 178(1), 178(4), 347, 356, 413A

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Country Fire Authority Act 1958 (Vic) ss 6, 17

Victorian Firefighting Industry Employees Interim Award 2000 Pt 2 cll 2, 2.9

Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2002 cll 6, 17, 45.8.2, 45.8.2.2, 45.11, 53.9, 53.10

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited

NTEIU v University of Wollongong [2002] FCA 31 cited

Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 cited

Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 followed

THE UNITED FIREFIGHTERS’ UNION OF AUSTRALIA v COUNTRY FIRE AUTHORITY AND KRISTINA WILMS

VID 241 OF 2004

GRAY J

1 JUNE 2007

MELBOURNE

THE COURT ORDERS THAT the application be dismissed.

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

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     The principal question in this proceeding is whether the first respondent’s appointment of the second respondent, who is one of its employees, to the rank of Leading Firefighter was in breach of a term of an Award, or of a term of a Certified Agreement, made pursuant to the Workplace Relations Act 1996 (Cth) (‘the WR Act’).  If such a breach or breaches occurred, the question arises whether they resulted in the appointment being ineffective.  If the appointment were ineffective, questions arise as to whether there were consequential breaches of other terms of the Certified Agreement, relating to procedures, staffing levels, uniforms and skills maintenance of firefighters.

2                     The proceeding was commenced pursuant to what was then s 178 of the WR Act, which has now been repealed.  A provision bearing some similarities to the former s 178 is now found in s 719 of the WR Act.  I can find no transitional provision requiring me to deal with the proceeding by reference to the amendments to the WR Act that were brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).  The proceeding is therefore dealt with on the footing that the appropriate form of the legislation is that applying at the date of commencement of the proceeding.  The same applies to other provisions of the WR Act invoked by the applicant.

3                     The applicant is an organisation of employees, registered pursuant to the WR Act.  There is no issue about its standing to pursue the relief sought in this proceeding.  The first respondent, Country Fire Authority, is established by s 6 of the Country Fire Authority Act 1958 (Vic) (‘the CFA Act’) as a body corporate, capable of being sued.  The second respondent, Kristina (‘Kris’) Wilms, is employed by the first respondent.

4                     There is no issue that the applicant and the first respondent are parties to and bound by the Victorian Firefighting Industry Employees Interim Award 2000 (‘the Award’), an Award made by the Australian Industrial Relations Commission.  The provisions relating to the first respondent are found in Pt 2 of the Award.  The applicant and the first respondent are also parties to and bound by the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2002 (‘the Certified Agreement’), a collective agreement given statutory effect by its certification by the Australian Industrial Relations Commission, pursuant to what was then s 170LT of the WR Act.

5                     When the hearing of the proceeding began, counsel for the applicant indicated that the relief sought in paras 1, 2, 4, 10, 16, 17 and 18 of the further amended application, filed on 9 November 2004, would not be pressed.  After I had heard the evidence on behalf of the applicant, with the cooperation of the applicant and the first respondent, I referred the proceeding to mediation by a Registrar of the Court and adjourned the further hearing.  It seemed to me that there was more than simply the case of the second respondent in issue between the parties, and that the Award and the Certified Agreement as they then stood may not cover the dispute that really divided the parties.  If they could agree upon how matters similar to those in controversy in this proceeding could be dealt with in the future, this would be of great assistance to all concerned.  In addition, the second respondent was not at that stage a party to the proceeding.  It seemed to me that I ought not to determine the validity of her appointment as a Leading Firefighter without giving her an opportunity to be heard.

6                     Unfortunately, mediation did not resolve the dispute between the applicant and the first respondent.  When the hearing resumed, I ordered that the second respondent be joined as a party.  Counsel already appearing for the first respondent also appeared for the second respondent.  During this part of the hearing, the ambit of the proceeding was confined further, so that it concerned only cl 2.9 of the Award and cll 45.8.2.2, 53.9 and 53.10 of the Certified Agreement.

The legislation

7                     At the relevant time, s 178(1) of the WR Act provided:

Where an organisation or person bound by an award…or a certified agreement breaches a term of the award…or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.

Section 178(4) provided for the maximum amount of the penalty.  Section 356 provided that a court that imposes a monetary penalty under the WR Act may order that the penalty, or a part of the penalty, be paid either into the Consolidated Revenue Fund or to a particular organisation or person.  Section 413A of the WR Act provided that the Court may give an interpretation of a certified agreement on application by, among others, an organisation or person bound by the certified agreement.  These are the provisions of the WR Act under which relief was sought in the present case.

8                     Section 17 of the CFA Act (in which the first respondent is referred to as “the Authority”) provides:

The Authority may from time to time appoint and may at any time transfer, suspend or remove—

(a)       a Chief Officer; and

(b)       such number of Deputy Chief Officers as the Authority considers necessary; and

(c)        such other officers and employees at the classifications and in the numbers as the Authority considers necessary.

The Award

9                     Clause 2 of Pt 2 of the Award contains definitions of terms used in that Part.  For present purposes, the relevant definitions are as follows:

2.6       Employee means an employee subject to this award.

2.7       Employer means Country Fire Authority.

2.8       Union means the United Firefighters Union of Australia.

2.9       Classifications

2.9.1                Recruit Firefighter means a probationary employee, who is            undertaking the recruit training course.

2.9.2                Firefighter Level 1 means an employee who has successfully          completed the recruit training course.

2.9.3                Firefighter Level 2 means an employee who has completed             twelve months service and has successfully completed all Firefighter Level 1 modules.

2.9.4                Firefighter Level 3 means an employee who has completed 24        months service and has successfully completed all Firefighter           Level 2 modules.

2.9.5                Qualified Firefighter means an employee who has completed a minimum of 36 months service and possesses the Certificate of         Proficiency.

2.9.6                Qualified Firefighter (with leading firefighter qualifications)     means an employee who is eligible for promotion to Leading Firefighter.

2.9.7                Senior Firefighter means an employee who is currently       appointed to this classification.

            If the employee has completed the requirements of the Leading       Firefighter transitional arrangements he or she is deemed to be the equal of a Leading Firefighter for the purposes of  determining eligibility for:

·        Attendance at courses conducted both internally and externally;

·        Transfer and/or promotion to a vacant position; and

·        Any other related matter.

2.9.8                Leading Firefighter means an employee who has had a      minimum of 48 months service and has been appointed by the           employer to Leading Firefighter.

2.9.9                Fire Officer Grade 1 means an appointed Officer who has completed a minimum of five years service, with at least one year at Leading Firefighter.

2.9.10              Fire Officer Grade 2 means an appointed Officer who has completed a minimum of two years service at the Fire Officer Grade 1 Level and has completed the Advanced Certificate.

2.9.11              Communications Technical Service Officer (CTSO)means a        technical employee employed in the Communications Department.

2.9.12              Protective Equipment Technician is an employee employed in the Protective Equipment Department who performs duties         associated with the maintenance and commissioning of personal protective equipment.

2.9.13              Assistant Protective Equipment Officer is an employee      employed in the Protective Equipment Department with supervisory responsibility for the evaluation and technical performance of personal protective equipment.

2.9.14              PAD Operator means an employee employed to perform duties relating to the operation of the practical area drill.

2.9.15              PAD Supervisor means an employee employed in a supervisory role relating to the operation of the practical area drill.

10                  It is important to note that there is no definition of the word “service”.  Clause 9.1 of Pt 2 of the Award specifies wage rates for the classifications referred to in cl 2.9.  Other references in Pt 2 of the Award to those classifications, or some of them, occur in cl 11, dealing with hours of work; cl 12, dealing with rosters; cl 13, dealing with overtime and callback; cl 15, dealing with personal leave; and cl 18, dealing with annual and accrued leave.

The Certified Agreement

11                  Clause 6 of the Certified Agreement provides relevantly as follows:

This Agreement is to be read and interpreted wholly in conjunction with the Victorian Firefighting Industry Employees Interim Award 2000 as varied from time to time, provided that where there is any inconsistency between this Agreement and the Award this Agreement will take precedence.

12                  Clause 17 of the Certified Agreement provides:

17        NO CONTRACTING OUT/MAINTENANCE OF CLASSIFICATIONS

            Work currently performed by employees in the classifications in this            Agreement will continue to be performed by employees in these        classifications who are directly employed by the CFA.  Such employees            will be employed under the terms of this Agreement and under:

            (i)         the Classifications referred to in this agreement, and / or

            (ii)        the Classifications referred to in the Parent Award, and / or

    (iii)       the Position Descriptions agreed by the parties under the     auspices of the 1996 Certified Agreement, or position        descriptions changed by agreement through the Enterprise      Bargaining Implementation Committee described in Clause 8.3

            Future work covered by the classifications in (i) to (iii) above will be          performed by employees engaged in the classifications in (i) to (iii).

            Provided that this Clause shall not prevent Volunteers in the Country Fire Authority from providing the services normally provided by such        volunteers as volunteers, without remuneration as defined in clause      52.2.

Strangely, provisions very similar to those in cl 17 of the Certified Agreement are also found in cl 45.8.2, which is part of a clause covering the duties of Firefighters and Fire Officers:

45.8.2.1      The parties agree that work currently performed by employees             employed under the classifications in the Award, will be         performed by employees in these classifications who are directly       employed by the CFA.  Such employees will be employed under the      terms of this agreement and under:

                   (i)        classifications referred to in this agreement, and/or

                   (ii)       the classifications referred to in the Parent Award, and/or

(iii)      the position descriptions agreed by the parties under the auspices of the 1996 Certified Agreement, or position
                   descriptions changed by agreement through the Enterprise Bargaining Implementation Committee described in clause 8.3 of section 1 of this agreement.

45.8.2.2      Future work covered by the classifications in the Award will be            performed by employees engaged in the classifications in the         Award.

45.8.2.3      Provided that this clause shall not prevent Volunteers in the     Country Fire Authority from providing the services normally provided by such volunteers without remuneration.

13                  Clause 45.11 of the Certified Agreement provides:

45.11   Lateral Entry

Where it can be demonstrated that no suitably qualified internal applicant exists and after advertising internally on two occasions, CFA will seek to fill the vacant position through the lateral entry of a currently paid firefighter or fire officer from another recognised and Professional Career Fire Service. Prior to seeking external advertisement, CFA will consult with the UFU who will be provided with seven working days to offer suggested alternatives for consideration by CFA.

Lateral entry will not be sought for positions below the rank of Qualified Firefighter with Leading Firefighter qualifications.

Applicants through external advertisements must be able to demonstrate that they have the requisite skills, competence and experience to perform the tasks required of the position being advertised consistent with the key selection criteria of the position description.

Such applicants will be required to undergo a suitable transitional training program and assessment determined by the parties, to ensure the applicant is competent and proficient to perform the required roles in CFA.  A period of induction will be required to be undertaken on Station prior to the successful applicant being part of minimum staffing.

The parties agree that the required transitional training program and induction requirements will be included in the training framework when finalised.

In the case of a Fire Officer 1, the applicant must have a minimum of five years continuous experience as a career firefighter, in addition to the required competencies.

In cases where currently paid firefighters are not available and lateral entry is to be sought by CFA no person shall be accepted for lateral entry if their service as a paid career firefighter or Fire officer has been broken with any period exceeding.

• Leading Firefighter              24 months

• Fire Officer                           12 months

Under special circumstances where the above cannot be met then the CFA will consult with the UFU prior to any employment or offer of employment.

In cases where the above results in employment then appropriate training arrangements will be developed on a case-by-case basis.

An acceptable and recognised Fire Service for the purpose of this agreement is a State or Territory Government fire service within Australia or such other fire service as agreed between the parties on a case-by-case basis.

A paid career firefighter or Fire Officer does not include a retained firefighter or Fire Officer.

14                  Further relevant provisions are found in cll 53.9 and 53.10 of the Certified Agreement, as follows:

53.9              Operational Use of Instructors

53.9.1           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 utilized to mentor career staff or volunteers.

53.9.2           An Instructor will not:

         (i)             Perform operational response duties normally         undertaken by Career Firefighters, Fire Officers,      Operations Officers, Operations Managers and/or               Volunteers.

         (iii)[sic]    Be a Regional Duty Officer or perform Regional Duty Officer (RDO) activities.

52.3.9.3[sic]   Instructors may be used in a functional or specialist role within an Incident Management Team (IMT) at a type 2 or 3 incident.   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 , [sic] the Operations Manager should have regard for offering these operational opportunities to trained Firefighters and Fire Officers who require skills acquisition, skills maintenance, further experience and/or mentoring to become “endorsed”or maintain their skills.

53.10            Uniform

53.10.1         Each Instructor will be provided with a uniform as agreed by the parties.

53.10.2         The selection of uniform apparel, between operational
and corporate, is a matter to be determined between the Instructor and Training Manager to meet the specific requirements of the training being conducted.

53.10.3         Epaulettes - Firefighters and Fire Officers

Upon completion of the Instructor secondment period or when performing skills maintenance, all Firefighters and Fire Officers will return to their substantive rank and insignia.

An instructor may elect to wear an “Instructor” epaulette in-lieu of the above.

Epaulettes – Other

All other Instructors, irrespective of their backgrounds, are to wear “Instructor” only on epaulettes.

53.10.4         Name Tags

All personnel, regardless of whether they are Firefighters, Fire Officers or laterally recruited personnel are to wear “Instructor” plus name on their name tags except personnel appointed as Senior Instructor who will wear “Senior Instructor” plus their name on the name tag.

53.10.5         Helmets

Instructor’s helmets will be blue in colour with the wording “Instructor” on the helmet.  This wording is not to be departed from under any circumstances and it is irrelevant whether the person is a Senior Instructor or Instructor for helmet identification purposes.  The exception to this is Fiskville staff who wear orange helmets to distinguish them from other Instructors at Fiskville.

When Firefighters and Fire Officers are performing skills maintenance then their substantive operational helmet and rank insignia, including skills identification, is to be worn.

The facts

15                  The second respondent commenced employment with the first respondent in February 1998.  She was employed as an Instructor at the first respondent’s training college at Fiskville.  Her previous employment had been with a contractor responsible for firefighting duties at the military base at Puckapunyal.  It is common ground in this proceeding that the second respondent’s previous employment was not with “another recognised and Professional Career Fire Service”, within the meaning of that expression in cl 45.11 of the Certified Agreement.

16                  The second respondent underwent assessment for the qualification of Leading Firefighter.  By letter dated 12 April 2000, the chairman of the assessment panel congratulated the second respondent on passing that assessment, and stated that her preparation and experience had allowed her to demonstrate that she was competent to perform the role of a Leading Firefighter with the first respondent.  There followed some confusion about the precise status of the second respondent.  Others who had passed the assessment for Leading Firefighter qualifications at the same time as she had were promoted to the classification of Qualified Firefighter (with leading firefighter qualifications), to which cl 2.9.6 of the Award refers.  By email communication dated 9 May 2000, the Senior Instructor at the training college at Fiskville informed the second respondent that she did not hold the qualification of Qualified Firefighter, that she was considered to be an Instructor who had undertaken a course of training and attained assessment as a Leading Firefighter, that this did not amount to a promotion, and that she was still regarded as an Instructor with qualifications as a Leading Firefighter.  The email did advise the second respondent that there would be support for her if she should apply for a position as either a Firefighter or a Leading Firefighter.

17                  The second respondent complained about her position.  At that time, because she was an Instructor, the terms and conditions of her employment were not regarded as being regulated by the Award or the Certified Agreement.  The Union took up the case on her behalf, and on behalf of other Instructors.  By letter dated 20 December 2000, the first respondent informed the second respondent:

It is with pleasure that we confirm your transfer onto the Victoria Firefighting Industry Employees Interim Award 2000 and the Certified Agreement as an Instructor at the Fiskville Training College of the Country Fire Authority of Victoria (CFA).

The effective date for the change of conditions is 14 November 2000.

18                  By letter dated 12 January 2001, the first respondent advised the second respondent:

♦          You are able to wear the insignia of a Leading Firefighter, however, it        must be clear that you are an Instructor.

♦          Under your recent change of conditions, we have stipulated that “you        will be required to obtain Fire Officer qualifications within 12 months of your appointment.”  CFA will provide every reasonable opportunity           for you to successfully complete the qualification within this time             frame.

19                  The applicant then began to object to the second respondent being entitled to wear the insignia of Leading Firefighter, and to her being given priority in the attainment of Fire Officer qualifications over other employees of the first respondent.  There followed a period of negotiations between the applicant and the first respondent on the one hand, and the first respondent and the second respondent on the other.  By letter to the applicant dated 3 May 2002, the first respondent advised that:

the following actions will be implemented immediately

(a)       Appropriate recognition, including rank insignia will be given to Kris in accordance with her recognised qualifications. CFA records indicate that Kris has successfully completed the CFA Leading Firefighter Assessment in April 2001.  Kris will therefore be recognised as holding the rank of Leading Firefighter and will wear the appropriate rank insignia.  This ensures that all Instructors at Fiskville are recognised equally for their operational qualifications.

(b)       Appropriate recognition of Kris’s achievement will be published in the CFA People Moves in recognition of Kris achieving the Leading Firefighter qualification

(c)        Kris will be afforded the opportunity to participate as an above strength Leading Firefighter on station to ensure that appropriate skills maintenance and skills development opportunities occur in accordance with her employment conditions.

20                  The applicant objected to the implementation of these proposed actions until such time as there was an outcome pursuant to an agreement between the applicant and the first respondent to resolve the situation of the second respondent directly through discussion between the applicant and the first respondent.  By letter dated 16 May 2002, the first respondent agreed not to implement the proposals immediately.  Eventually, by letter dated 13 November 2002, the first respondent advised the applicant:

The CFA has carefully considered its position and any potential detriment Ms Wilms is suffering.  The issues concern skills maintenance, the previous undertakings given to Ms Wilms and the potential financial disadvantage because Ms Wilms has not undertaken the Fire Officers Assessment.

CFA has decided that this situation cannot continue.  Accordingly, Ms Wilms will be permitted to wear Leading Firefighter insignia, be given access to the next Fire Officers Assessment and be provided an opportunity for skills maintenance on station as necessary.

21                  The first respondent published a regular internal bulletin entitled People Moves.  In the edition of this bulletin for 8 November 2002, the first respondent advertised a number of vacancies, including vacancies for Leading Firefighter and Leading Firefighter-Reliever at a station it was intending to establish at Point Cook.  In People Moves on 3 January 2003, the first respondent described the second respondent as an Instructor at Fiskville Training College, and gave notice of her permanent transfer to the position of Leading Firefighter at Point Cook from a date to be advised.  The applicant raised with the first respondent a grievance under the grievance procedure in the Certified Agreement, in an endeavour to prevent the transfer taking effect.  This did not produce any resolution of the dispute.

The applicant’s case

22                  The applicant contended that, at the date of coming into operation of the Certified Agreement, 5 December 2002, the second respondent was an Instructor at the Training College at Fiskville and did not fall within the classification of Leading Firefighter.  The first respondent was prohibited, either by cl 2.9 of the Award or by cl 45.8.2.2 of the Certified Agreement, or by a combination of them, from directing the second respondent to perform the work of a Leading Firefighter.  For the first respondent to give such a direction to the second respondent was for it to act in breach of cl 2.9 of the Award or cl 45.8.2.2 of the Certified Agreement.  Similarly, the direction to the second respondent to perform the work of a Leading Firefighter gave rise to a breach of cl 53.9.2 of the Certified Agreement.  By permitting the second respondent to wear the uniform insignia of a Leading Firefighter, the first respondent was in breach of cll 53.10.3 and 53.10.4 of the Certified Agreement.

23                  Central to the applicant’s case was the contention that the word “service” in cl 2.9 of the Award was to be construed as meaning service with the first respondent, and not service with any other firefighting organisation.  The only exception to this related to lateral entry, pursuant to cl 45.11 of the Certified Agreement, which involved recruitment from a fire service recognised as a Professional Career Fire Service for the purposes of that clause.  This did not include the second respondent’s previous employer.  Nor could recruitment from the position of Instructor within the first respondent’s organisation be regarded as lateral entry for the purposes of cl 45.11.

24                  The word “service” was said to bear the restricted meaning attributed to it by the applicant on the basis of its ordinary and natural meaning in the context of the Award.  Alternatively, the word was said to have acquired that meaning from the matrix of facts in which the Award and the Certified Agreement were made, or from the existence of a settled historical meaning understood by both the applicant and the first respondent.  The matrix of facts upon which the applicant relied involved the exigencies of firefighting, and the necessity for anyone in a position such as Leading Firefighter to be familiar with the first respondent’s procedures and requirements, so that they could be carried out instantly in a time of emergency, whilst fighting a fire.  The historically accepted meaning was said to have been derived from a custom and practice whereby, subject to the exception of lateral entry under cl 45.11, persons appointed to the classification of Leading Firefighter had been required to have the necessary length of service with the first respondent.

25                  In substance, therefore, the applicant’s case is that the second respondent, not having had the length of service required by cl 2.9.8 of the Award that would have entitled her to become a Leading Firefighter, was never validly appointed as a Leading Firefighter, and remains an Instructor.  It follows from this that the first respondent has acted in breach of: cl 45.8.2.2 of the Certified Agreement, by requiring work covered by the classification of Leading Firefighter in the Award to be performed by an employee who is not engaged in that classification; cl 53.9.2(i), by requiring the second respondent to perform operational response duties normally undertaken by career firefighters; and cl 53.10 by requiring or allowing the second respondent to wear the insignia of a Leading Firefighter, rather than the insignia of an Instructor.

The effect of the Award and the Certified Agreement

26                  The applicant’s case runs into a number of difficulties.  The first is the nature of the relevant provisions of the Award and the Certified Agreement themselves.  Clause 2.9 of the Award is not in its terms prescriptive.  Its function is to define terms for the purposes of the Award.  The definitions it contains are of significance in construing other provisions of the Award in which those terms are used, to which I have referred in [10].  Neither cl 2.9 nor any other provision of the Award (nor any provision of the Certified Agreement) is the source of the first respondent’s power to appoint its employees to classifications.  That power is to be found in s 17(c) of the CFA Act.  Because the Award and the Certified Agreement have statutory force derived from the WR Act, an Act of the Parliament of the Commonwealth, they may restrict or regulate the exercise of the power, but the source of the power to appoint to classifications remains in the State legislation.  Clause 2.9 of the Award does not contain in its terms any obligation upon the first respondent not to appoint any of its employees to a particular classification.  In relation to each classification defined, the clause contains material descriptive of the experience and qualification that an employee appointed to the classification is expected to have.  It is difficult to say, however, that any employee appointed to such a classification, who does not have both the qualifications and experience described, has been appointed in breach of cl 2.9 itself.  Any obligation not to appoint such a person must be found in another provision.  In this case, it is necessary to turn to the Certified Agreement to see if such a provision can be found, bearing in mind that the Certified Agreement effectively overrides the Award to the extent that the two are inconsistent.

27                  Neither cl 17 nor cl 45.8.2 of the Certified Agreement imposes on the first respondent an obligation not to appoint to any classification a person without the qualifications or experience found in the definition of that classification.  The purpose of each of cll 17 and 45.8.2 is manifestly to ensure that the first respondent does not contract out the work to be performed by employees in the various classifications, by engaging to perform that work persons other than its own employees engaged in those classifications.  Neither clause has anything to say about who should be an employee engaged in any of the classifications.  Clause 45.11 relates to the filling of vacant positions otherwise than by promoting or appointing persons already employed by the first respondent.  In its terms, it is an enabling provision, but it contains many provisions regulating the exercise of the power to appoint from outside which it purports to enable the first respondent to exercise.  Clause 45.11 says nothing at all about who may be promoted or appointed from among the employees of the first respondent to a particular classification.  Clause 53.9 of the Certified Agreement might be said to impose on the first respondent an obligation not to require or direct Instructors to perform duties normally undertaken by employees within the classifications to which it refers.  The clause itself says nothing about who may, or may not, be appointed to any of those classifications.  In particular, it does not say that a person who is employed by the first respondent cannot be appointed to one of those classifications, whether possessing requisite qualifications and experience or otherwise.  Similarly, cl 53.10 of the Certified Agreement, to the extent to which it imposes any obligation on the first respondent, is silent on the question of who may, or may not, be appointed to any of the classifications.  Only if it be assumed that, despite her formal appointment as a Leading Firefighter, the second respondent has never been appointed to that classification could any question of breach of cll 45.8.2.2, 53.9 or 53.10 of the Certified Agreement arise.

28                  The second difficulty encountered by the applicant’s case is that it depends entirely upon the acceptance of a particular meaning of the word “service” in cl 2.9 of the Award.  Unless it can be said, as counsel for the applicant attempted to argue, that “service” means service under the Award, the applicant’s argument must fall.  In the absence of a definition of the term “service” in the Award, it is necessary to find some aspect of the context in which the word is used that would suggest that the word has a meaning more restricted than its ordinary and natural meaning.  The Macquarie Dictionary relevantly defines “service” as “employment in any duties or work for another, a government, etc.”  It can be accepted readily that the context in which the word “service” is used in the various classifications set out in cl 2.9 of the Award requires that the relevant service involves service in a firefighting capacity.  It would be pointless for the definitions of the various classifications to refer to service in general, when what is contemplated is obviously service that will provide the experience fitting a person for the duties associated with a particular classification.  Once that is accepted, however, the question becomes to what extent does the context suggest that the meaning of “service” should be narrowed further?  A range of meanings remains possible.  For instance, the relevant service could be restricted to service only with the first respondent, or could include, as counsel for the applicant suggested at one stage, service under the Award.  This would include service with the Metropolitan Fire and Emergency Services Board, to which Pt 1 of the Award applies.  It might equally well include service with any firefighting authority, the equivalent of those covered by the Award, in any other State or Territory of Australia, or in any other country.  On the face of the Award, there is no particular reason why it should not be extended to include firefighting experience in the non-government sector if that were considered to equip a person with the requisite experience to undertake the duties attached to the particular classification.  Nothing in the terms of the Award itself shows where the line ought to be drawn. 

29                  It is at this point that the applicant must call in aid its arguments based on the factual matrix of the Award and the custom and practice of the first respondent and the applicant.  As to the factual matrix, there can be no doubt that firefighting is a dangerous occupation, involving considerable skill and knowledge, requiring stringent training, and depending upon each person engaged in it having a clear understanding of the procedures required in a particular situation, and his or her role in the execution of those procedures.  Familiarity with the ways in which a particular firefighting authority carried out its functions is undoubtedly very important, especially given the unpredictability of the emergencies likely to be encountered.  The exacting nature of the service, and the importance of the specialist knowledge of the functions and procedures of a particular employer, are of the greatest importance.  It is to be hoped that they would be at the forefront of the consideration of whether a particular person had the experience, as well as qualifications, that would justify appointment to a classification.  That question will arise in the consideration of any potential appointment, however.  One employee might be considered not to have the requisite experience, despite employment with the first respondent for a specified number of years.  Another might be considered to have the requisite experience, based in part on his or her service in firefighting for another employer.  Nothing about the nature of firefighting in general, or firefighting as an employee of the first respondent, provides a context that would enable the drawing of a line somewhere within the range of possible restricted meanings to be given to the word “service” in cl 2.9 of Pt 2 of the Award.

30                  Great caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement.  Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation.  See Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452.  Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on.  The evidence in the present case goes nowhere near establishing such a common understanding.  It would be necessary to show that the word “service” had been used in the same context in a previous Award or agreement, now superseded by the Award, and for there to be clear evidence that both the applicant and the first respondent understood the word to have a particular restricted meaning in that context.  There is no evidence of either of these kinds in the present case.  Such evidence as there is about custom and practice in the appointment by the first respondent by employees to classifications seems to indicate that there is a recognition that it is not always possible, or advisable, to rely upon the experience levels specified in the definitions in cl 2.9 of the Award strictly.  There have been cases of accelerated advancement, when there have been vacancies in positions requiring particular classifications, and shortages of employees with the length of experience designated for those classifications.  There is evidence that the Union actively assisted in the promotion of one firefighter, who had emigrated from England, because of the high level of his skills as a result of his long service with a firefighting authority in England.  Custom and practice provides no support for the proposition that the word “service” should be given a particular restricted meaning when it is used in cl 2.9 of the Award.

31                  Apart from the obvious requirement that the service contemplated by the use of the word “service” in the definitions of various classifications in cl 2.9 is to be service of a firefighting kind, there is no warrant for giving it any particular restricted meaning.  Certainly, there is no warrant for giving the word “service” in that context a meaning restricted to a service in the employ of the first respondent, or service in employment the terms and conditions of which are regulated by the Award.

32                  The third major difficulty only confronts the applicant’s case if it be assumed that the appointment of the second respondent to the classification of Leading Firefighter was in breach of the Award or the Certified Agreement.  The difficulty is that of concluding that something done in breach of the relevant clauses of the Award and the Certified Agreement is to be treated as a nullity, in consequence of the breach.  As I have said, none of the relevant provisions of the Award or the Certified Agreement appears to impose on the first respondent any obligation only to appoint to classifications persons with the required experience, much less any mandatory obligation.  The question whether non-compliance with a statutory provision results in a particular act being treated as void no longer depends on the classification of the provision as mandatory or directory.  Since Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[94], it has been recognised that it is necessary to gather from the statute, or statutory instrument, as a whole the intention that non-compliance should lead to invalidity, before a conclusion can be reached that a non-complying act is to be treated as void.  It is certainly not the case that non-compliance with an award made under the WR Act would necessarily lead to the conclusion that an act was void.  See Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 426-429 per Brennan CJ, Dawson, Toohey JJ and 453-457 per McHugh and Gummow JJ, and NTEIU v University of Wollongong [2002] FCA 31 at [38]-[39].  In the application of the approach favoured by Project Blue Sky, there are some guiding principles.  One such guiding principle is that, where Parliament has chosen to make an act done in contravention of a statutory provision punishable by a specified penalty, it is unlikely that Parliament also intended other consequences, such as the invalidity of the act, to follow.  See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 429 per Mason J, with whom Aickin J agreed.  In the present context, Parliament has chosen in s 178 of the WR Act to enforce obligations in awards and certified agreements by means of the imposition of civil financial penalties.  As a consequence, it is unlikely that it also intended that acts done in contravention of the provisions of awards and certified agreements should be treated as void.  To the extent (if any) to which the particular terms of an award or a certified agreement might disclose an intention that contravention is to lead to invalidity, they certainly do not do so in the present case.  It would be extremely difficult to argue that a failure to observe strictly the elements of a definition, in the appointment of a person to a particular classification, would result in the invalidity of that appointment.  As I have said, only if the appointment of the second respondent as a Leading Firefighter were to be regarded as invalid would it follow that there were contraventions of any of the relevant clauses of the Certified Agreement.

Conclusion

33                  It follows from these reasons that the applicant has been unable to make out its case.  It has not been able to establish that the appointment of the second respondent as a Leading Firefighter involved a breach of either the Award or the Certified Agreement.  Even if there were breaches, they would not lead to invalidity of the appointment, and much of the applicant’s case would fall for that reason.  The application must be dismissed.  As the proceeding falls within what was formerly s 347 of the WR Act (see now s 824), and the proceeding cannot be said to have been instituted vexatiously or without reasonable cause, no question of an order for costs can arise.

Associate:

Dated:         1 June 2007