DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters’ Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2018/1135; C2018/5622)

Alleged dispute about alleged dispute arising under an enterprise agreement. Whether earlier order leaves Commission without jurisdiction.

[1] This decision concerns an application by the United Firefighters’ Union of Australia (UFU), pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement. The matters in dispute relate to the application of an availability allowance under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the 2010 Agreement), 1 which was the subject of an Order of the Fair Work Commission on 8 June 2017 (the 2017 Order).2

BACKGROUND

[2] An application was originally lodged in the Commission on 2 March 2018 (C2018/1135) with a further application on the same terms being lodged on 9 October 2018 to address jurisdictional concerns raised by the MFB (C2018/5622). After being the subject of numerous conferences before me these matters were listed for hearing on 15 and 16 October 2018.

[3] Evidence in these proceedings was provided on behalf of the UFU by three operational employees of the MFB, Damien O’Toole, presently a Senior Station Officer who is also engaged as a Fire Investigation and Analysis (FIA) employee; Ian Morris, presently Manager Operational Communications but who is substantively a Fire Services Communications Controllers (Senior) and Station Officer; and Dan Gatt an MFB Commander. Evidence was also given by two industrial officers of the UFU, Michelle Baldini and Rini Krouskos.

[4] Evidence on behalf of the MFB was provided by Gregory Leach, presently Deputy Chief Officer – State Capability and Jeanette Pearce, Director Workplace Relations.

[5] Warren Friend QC and Yasser Bakri, of Counsel appeared for the UFU, instructed by Davies Lawyers, and Brendan Avallone, of Counsel, instructed by Maddocks, appeared for the MFB. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] In summary, on 23 September 2010 the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 was approved by the Commission. Clause 42.3 of the Agreement provides that:

‘Any additional, new or increase of allowance above that already provided in the agreement will be referred to the FWA for determination. Both parties reserve their rights to put their respective positions.’

[7] On 11 May 2017 the UFU lodged an application under s.739 of the Act in the Commission (original dispute) relating to several allowances including an availability allowance. The application stated that the UFU was seeking certain new allowances and variations to existing allowances, relevantly:

“Availability Allowance

New allowance of 5.5% of their salary counted for all purposes for all employees appointed or allocated to Regions, Stations and Departments not working the 10/14 shift roster (or 12/12 in the case of FSCC’s) who are required to be available or notify that they are available after working hours to deal with operations matters.

Payment of the allowance is to commence as from 12 August 2016.”

[8] In determining the application an Order was issued by consent of the parties on 8 June 2017 which relevantly provided that:

“[16] Availability Allowance

The MFB shall pay employees appointed or allocated to Regions, Stations and Departments who are not working the 10/14 shift roster (or 12/12 in the case of FSCC’s) and who are required to be available or notify that they are available after working hours to deal with operations matters, an allowance of 5.5% of their salary.” 3

[9] While the product of the order was issued by consent of the parties, short reasons for decision were issued by me, which do not materially go to the subject matter of this disputes, with the possible exception of these paragraphs being:

“[8] The parties submitted to the Commission that, notwithstanding their in-principle agreement, they sought the Commission determine the dispute through final determination of the merits of the dispute in a manner consistent with the provisions of s.739(4) of the Act which provides:

“(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”

[9] Having considered the provisions of clause 42.3 of the Operational Staff Agreement, the dispute resolution provisions of the same agreement and the provisions of s.739 of the Act, as well as the submissions made to the Commission by the parties, I was satisfied that it is appropriate for the Commission to make an order in the terms sought.” 4

[10] This decision refers to three aspects of the implementation arrangements for the Availability Allowance; whether those presently in receipt of the allowance are entitled to have it paid for all purposes; whether the allowance should apply to employees below the rank of Commander and whether the Commission should order a new allowance for Commanders who work on a 10/14 rotating operational roster.

[11] For practical purposes the Availability Allowance is paid to a limited number of employees at senior levels who are not presently working a rotating operational shift roster. The dispute arises firstly because the MFB is not paying the allowance to those in receipt of it when they are on leave or unavailable and secondly because it is not being paid to those who have a rank below Commander, meaning that it is not paid to Fire Services Communications Controllers (FSCCs) or to those employed in the Fire Investigation Unit. 5 The MFB describes its application of the Availability Allowance as not being determined by an operational staff member’s position or rank:

“…but rather by determining whether the employee is:

(a) appointed or allocated to a Region, Station and/or Department;

(b) not working the 10/14 shift roster (or 12/12 in the case of FSCC’s); and

(c) required to be available or notify they are available after working hours to deal with operations matters.” 6

[12] The UFU’s request in this matter is that the Commission determine a number of questions, with the intention of establishing that the Availability Allowance is paid for all purposes as well as ensuring that it is paid to anyone beneath that of the Commander classification. The questions are put in the form of alternatives, firstly directed to an interpretation of the 2010 Agreement and the 2017 Order, and then, failing a determination in its favour on those matters, an invitation to the Commission to determine that, in any case, there should be a new allowance that would achieve the same or similar result.

[13] Five questions were posed for determination by the Commission, however after the hearing of the applications had been concluded, the Commission identified a jurisdictional impediment to the parties about one of the questions, Question 5. That question, as posed to the Commission at the time of the hearing was in the following form:

“5: should the Commission order a new allowance which provides that ACFOs and Commanders who are on the 10/14 roster receive an additional allowance of 5.5% of their salary which will be known as the “shift work ACFO/Commander qualification allowance”?”

[14] The matter which had been raised with the parties was that the two applications presently before the Commission deal only with the MFB Operational Staff Agreement 2010. ACFO employees, or Assistant Chief Fire Officers, are not employed under the MFB Operational Staff Agreement 2010 but under the MFB ACFO Agreement 2010.

[15] As a result of raising this matter with the parties, solicitors for the UFU advised that the union does not press its request for the Commission to determine that part of the fifth question which deals with ACFO employees.

[16] As a result of the UFU’s advice the five questions posed by the UFU to the Commission requiring determination are as follows:

1. Does the Order dated 8 June 2017 require the MFB to apply the availability allowance for all purposes?

2. In the event that the Order dated 8 June 2017 does not require the MFB to apply the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable), should the Commission order a new allowance which provides that employees be paid the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable)?

3. Are employees below the rank of Commander, who meet the other criteria in the Order dated 8 June 2017, entitled to be paid the availability allowance pursuant to the Order?

4. In the event that employees below the rank of Commander, who meet the other criteria in the order dated 8 June 2017, are not entitled to be paid the availability allowance pursuant to the Order, should the Commission order a new allowance which provides that such employees be entitled to receive an availability allowance of 5.5% of their salary?

5. Should the Commission order a new allowance which provides that Commanders who are on the 10/14 roster receive an additional allowance of 5.5% of their salary which will be known as the “shift work Commander qualification allowance”?”

[17] The UFU submits that the Availability Allowance when properly construed is an all-purpose allowance which should be payable where employees are required to be available for duty or to notify of availability as well as when employees are on paid leave. In the alternative, if the Commission finds that the allowance is not an all-purpose allowance, the UFU submits that the Commission should order a new allowance which provides that employees be paid an all-purpose availability allowance of 5.5% of their salary where they are required to be available for duty or to notify of availability, in order to achieve consistency across the Victorian fire services given that such an allowance is already payable under the Country Fire Authority enterprise agreement. 7

[18] Moreover, the UFU puts forth that the allowance should be payable to firefighters who are classified below the rank of Commander including Fire Services Communications Controllers and employees in the Fire Investigation Unit. Similarly, should the Commission deem that the Availability Allowance is not payable to employees engaged in classifications below the rank of Commander that a new all-purpose availability allowance of 5.5% of an employee’s salary should be ordered by the Commission.

[19] The MFB contest the alleged dispute put forward by the UFU, not only on the grounds of merit, but also on the grounds of jurisdiction. In relation to matters of jurisdiction, the MFB argues:

1. That the Commission has no jurisdiction to proceed with determination of the alleged dispute since the 2017 Order comprehensively resolved the then extant dispute with no capacity for a residual question to be agitated at a later time. In essence this is an argument on the part of the MFB that “accord and satisfaction” was achieved through the 2017 Order with the current dispute being no more than a reagitation of one aspect of the matters that led to that order. 8

2. That in the event that the 2017 Order did not extinguish the then prevailing dispute, then since the Commission has previously exercised its powers of arbitration on the subject matter of the availability allowance is now functus officio and has been since the making of the order in 2017. 9

3. That the UFU has failed to follow the dispute resolution procedure which means the alleged dispute is not validly before the Commission; 10

4. That the claims now being made by the UFU amounts to extra claims or an attempt on the part of the union to vary the 2010 Agreement inconsistently with the Act. 11

5. That the application by the UFU is an invitation for the Commission to exercise judicial power contrary to its powers. 12

[20] In relation to the substantive aspects of the alleged dispute before the Commission, the MFB argues that reference to accepted principles of determination of the meaning of enterprise agreements ought to lead to the conclusion both that there is no warrant for a finding that the Availability Allowance be paid for all purposes when employees are on leave and unavailable and that claims of the need for consistency with the CFA are not reliably made. The MFB also argues that there is equally no obligation on the part of the MFB to pay the allowance to FSCCs and, it is argued in relation to FIA employees that another allowance already adequately compensates those employees. 13

[21] The UFU rejects the propositions put forward by the MFB about jurisdiction with the union arguing that what is now before the Commission is a dispute as to what the 2017 Order means and whether the MFB is acting consistently with its obligations under the Order. In the UFU’s second application C2018/5622 the UFU set out the steps it undertook between 29 August 2018 and 14 September 2018 pursuant to clauses 19.2.1 to 19.2.5 of the 2010 Agreement enlivening the Commission’s powers to deal with the dispute. It characterises the dispute as the equivalent of a dispute about the meaning of any other part of the 2010 Agreement as well as whether an employer is acting consistently with its obligations under the 2010 Agreement. 14 In respect of the MFBs arguments that the Commission has been rendered functus officio with the 2017 Order, the UFU argues that success of the objection would depend on there being an identity between the present claims and those dealt with previously with the UFU submitting that there is no such identity with the claims now before the Commission being claims for new allowances within the scope of the 2010 Agreements under clause 48.3.15 In relation to the possibility that the claims now before the Commission have not proceeded through the dispute resolution procedure, the UFU argues that in the first instance there is no need to go through the stepped process within the procedure because there is a separate head of power established in clause 48.3 which invests the Commission with the power to arbitrate, a proposition confirmed by the Full Court in relation to a similar provision applicable to the Country Fire Authority.16 Alternatively, the UFU has taken such steps as set out in the Form F10 in the secondary application C2018/5622 made by the UFU on 9 October 2018 as discussed above.

[22] The UFU also rejects the proposition that what is now before the Commission can be characterised either as an extra claim or as the exercise of judicial power. 17

All purposes

[23] The union’s two Industrial Officers who gave evidence in these proceedings, Ms Baldini and Ms Krouskos, both gave evidence that on the occasion of discussing the Availability Allowance in March 2017 Ms Baldini stated to the MFB that payment of the Allowance should be consistent with the arrangements within the CFA Agreement, namely that it be an all-purpose allowance. 18 Ms Pearce, from the MFB, does not recall either the asserted discussions surrounding arrangements in the CFA Agreement during the March meeting, and thought rather that it was discussed at a later time, in May 2017. While she does not recall that the meeting reached any agreement as to the way in which the Availability Allowance would be paid within the MFB,19 her evidence does confirm that the allowances claims made by the UFU originally in January 2017 included the claim that the Availability Allowance to be created would be “accounted for all purposes”.20 Ms Pearce’s oral evidence was explicit that nothing was raised in the 9 March 2017 meeting about the Availability Allowance being for all purposes nor that that was how it was paid in the CFA.21

[24] Ms Pearce’s evidence also reveals that the form of the proposal made by the UFU for agreement on 7 June 2017, and which became the form of the words used by the Commission in its 2017 Order, made the following day, on 8 June 2017, is in a different form to that which the UFU provided in the January proposal. 22 Whereas the January proposal refers to the payment being for all purposes, the June proposal does not, with the subsequent 2017 Order also making no reference to the payment being for all purposes:

•  January 2017 claim – “The UFU is seeking an allowance of 5.5% of their salary counted for all purposes for all employees appointed or allocated to Regions, Stations and Departments not working the 10/14 shift roster (or 12/12 in the case of FSCC’s) who are required to be available or notify that they are available after working hours to deal with operations matters.” 23

•  7 June 2017 proposal – “The MFB shall pay employees appointed or allocated to Regions, Stations and Departments who are not working the 10/14 shift roster (or 12/12 in the case of FSCC’s) and who are required to be available or notify they are available after working hours to deal with operations matters, an allowance of 5.5% of their salary.” 24

•  8 June 2017 Order – “The MFB shall pay employees appointed or allocated to Regions, Stations and Departments who are not working the 10/14 shift roster (or 12/12 in the case of FSCC’s) and who are required to be available or notify that they are available after working hours to deal with operations matters, an allowance of 5.5% of their salary.” 25

[25] Ms Pearce also recalls a commitment being given by the UFU in the course of the 9 March 2017 meeting where:

“Ms Baldini and Ms Krouskos confirmed that the UFU would not seek further payments or claims in relation to allowances in bargaining for the Proposed 2016 Agreement, including the Proposed Availability Allowance, should the MFB agree to the Allowance Claims. Ms Baldini and Ms Krouskos further advised that, as a result of the claim within their dispute, the UFU sought implementation of the Allowance Claims prior to the commencement of the Proposed 2016 Agreement.” 26

[26] Mr Leach recalls the March 2017 meeting with the union discussing whether the allowances discussed in the meeting “were to be paid for ‘all purposes’ – meaning, were the allowances to be superable”. 27

[27] Between the March 2017 meeting and the final agreement in June, correspondence passed back and forth between the UFU and the MFB, including on the subject of whether the allowance should be for all purposes. That exchange included an email from Ms Pearce to Ms Baldini on 3 May 2017 in which several questions were asked of the union including this:

“The MFB notes that the Availability Allowances makes an expressed reference to the allowance being counted for all purposes. Could the UFU please confirm that this is the only allowance that is to be paid as an all-purpose allowance?” 28

[28] Ms Pearce concedes that the request for the allowance to be paid as an all purposes allowance is how the matter was reflected in the UFU’s dispute and that at no time did she ever say back to the UFU’s representatives that the MFB “will not pay for all purposes” nor did Mr Leach within her hearing. 29 Ms Pearce’s explanation in cross-examination for asking the question on 3 May 2017 was that she was not suggesting agreement to the allowance being paid for all purposes but rather was motivated to ensure that the MFB’s payroll department could prepare for whatever eventuality was to be concluded about all of the allowances and not just the Availability Allowance, as well as making the point to the union that the Availability Allowance was the only allowance which had been at that point in time framed as being for all purposes:

(Mr Friend) “... You allowed the UFU to proceed on the assumption that that’s what had been agreed, didn’t you?---I guess it could be characterised as that, however, I would say my understanding on that particular allowance the criteria for the MFB requiring someone or the employee notifying their availability was the first hurdle. The all-purposes is sort of the next part of the consideration. If there was no requirement for someone to be available or they hadn’t notified that they were available, then I guess the question about what does all-purposes mean, but that’s how I had read the clause.

You never initiated a discussion about that. You allowed the UFU to proceed on the assumption that you were dealing with their claim. I mean, that’s the only way to explain your email in JP9, isn’t it?---The email was at a request from our payroll department at the time, so there’s quite a significant amount of work that needs to go into configuring our payroll system to introduce new allowances and such, and because they were doing all of that work in getting the system ready they had just asked me to confirm with the UFU just for the purposes of making sure they had that visibility when they were configuring the payroll system.

So that’s so that they could prepare the payroll to make the allowance payable for all-purposes; correct?---No, the question was is there any other allowances. There was more to understand; are there other allowances that - - -

Come on, Ms Pearce. Are there any other allowances? That the availability allowance is going to be paid for all-purposes. That means the availability allowance was going to be paid for all-purposes, doesn’t it?---No, the question is more that the availability allowance was the only one that at that point had been framed in that way.

So that payroll could prepare for it?---Correct.” 30

[29] However, in re-examination Ms Pearce denied that she had allowed the UFU to assume that there had been agreement on the subject of the all purposes claim and that instead she recalled being unclear about why there would be payment of the allowance to people on leave:

(Mr Avallone) “Sorry, you were being asked, or it was put to you before that going back to the discussions in 2017 that you allowed the UFU representatives, Ms Baldini and Ms Krouskos, you allowed them to operate on the assumption that that aspect of their claim, which is that it be paid for all-purposes or at all times, that you allowed them to operate on the assumption that it had been agreed. Was such an assumption ever voiced by either party?---I don’t know that I didn’t mention – that I led them to believe I thought the – I do recall being perplexed as to why we would pay an allowance for an employee to be available when we don’t require them to be available, and that current 2010 Agreement even, I think, says that we can’t – our employees can’t work for the MFB whilst they’re on a period of leave, so I think I did express that in the final step 4 meeting about the ACFO dispute that it was just unclear about how we could be requiring someone to be available and paying them an allowance to be available if they weren’t in fact available.” 31

[30] The 2016 Agreement, made by the MFB and its employees, but yet to be approved by the Commission, provides for an Availability Allowance “to be counted for all purposes”. Ms Pearce’s witness statement deals with the applicable term of the 2016 Agreement and discussions she had in March 2017 with the UFU about the clause:

“16. During the meeting, I asked Ms Baldini and Ms Krouskos how the UFU intended the Proposed Availability Allowance would interact with clause 85.13 of the Proposed 2016 Agreement. Relevantly, clause 85.13.1(b) of the Proposed 2016 Agreement then provided for an Availability Allowance as follows:

Employees appointed or allocated to Regions, Stations and Departments not working on the 10/14 shift roster (or 12/12 in the case of FSCC’s) who are required to be available or to notify that they are available after working hours to deal with operational matters shall receive an allowance in accordance with SCHEDULE 4 – to be counted for all purposes. In the case of employees covered by part C of this agreement, the allowance shall be in accordance with SCHEDULE 4 -.

17. Ms Baldini and Ms Krouskos confirmed that the UFU would not seek further payments or claims in relation to allowances in bargaining for the Proposed 2016 Agreement, including the Proposed Availability Allowance, should the MFB agree to the Allowance Claims. Ms Baldini and Ms Krouskos further advised that, as a result of the claim within their dispute, the UFU sought implementation of the Allowance Claims prior to the commencement of the Proposed 2016 Agreement.” 32

Fire Investigation and Analysis Unit (FIA)

[31] Mr O’Toole’s evidence included that FIA employees conduct investigations, with the unit presently comprised of seven full-time employees, six of whom are fire investigators with one Commander who is also the Manager of the unit. 33 As a day worker he does not work a 10/14 roster, but instead works four 10 hour shifts each week over Monday to Thursday,34 but that:

“In addition to performing our regular shifts the FIA is on-call 24 hours a day 7 days a week. All FIA employees are subject to on-call arrangements. The percentage of time we each spend on-call depends on the number of FIA employees there are at any given time to cover the FIA on-call requirements. The on-call cycle requires you to be available 24 hours a day over a consecutive seven day period, including attending five ten-hour shifts Monday to Friday as the Lead Investigator.” 35

[32] An analysis conducted by the branch’s Commander suggests “that on average FIA employees are on-call one week in every two and a half weeks. This equates to FIA employees being on-call approximately 41% of the time”. 36 Mr O’Toole also gave the following evidence about the work performed by fire investigators out of hours:

“19. Due to the specialist nature of the work performed by the FIA, FIA employees are required to be available to respond out of normal working hours to deal with various operational matters. Some examples are:

a. Notification at third alarm and automatic response at fourth alarm or greater structure fires;

b. Automatic response for fire fatalities and serious injuries;

c. Cause of fire unable to be determined by the Incident Controller;

d. Any injury to MFB Firefighters;

e. FIA attendance at the request of a Commander or above; and

f. Protracted industrial rescues.

20. Also FIA employees often take calls out of hours from MFB fire crews to give the crews advice when on scene or after the event. The Fire Service Communication Controller (FSCC) and MFB Media & Communication department regularly contact the on-call fire investigator relating to the investigation outcomes. Furthermore, our contact details are provided to other agencies, such as Victoria Police, EnergySafe Victoria, and WorkSafe Victoria, as well as to insurance investigators and members of the public as a point of contact for investigation matters. As a result of this we often receive phone calls out of normal working hours.

The impact of the on-call arrangements and after hours work

…

24. When rostered on-call, FIA employees are required to remain within the Metropolitan Fire District (MFD); to have a zero blood alcohol level; to be contactable by phone and pager at all times; to be able to immediately respond in the allocated FIA equipped vehicle with a full complement of uniform and personal protective clothing (PPC).

…

26. For example, if I was to attend a social event with my family whilst on-call, I would need to drive the FIA vehicle to the event, as if I was called back to work I would need to promptly leave and my family would need to make their own way home.” 37

[33] Mr Leach’s evidence included that FIA employees are required to undertake on-call work but that they are presently subject to a different availability allowance than that encompassed within the current claim. The on-call work of FIA employees is usually undertaken by two employees who respond to a call together with them being on call about every three to four weeks. They can be recalled to work for a variety of operational matters including certain serious matters or to provide advice to other parts of the MFB. As such when they are on-call they are required to remain within the Metropolitan Fire District, to be contactable at all times by pager or phone and to remain fit for duties. 38 The allowance payable to FIA employees was part of a special-purpose agreement between the MFB and the UFU on the subject in 2010 which provided for a payment to “all permanent fire investigations, in FIA, be paid the “availability allowance” [of 4.5%], and that this allowance be annualised…and retrospective to form part of ordinary time earnings”.39 Mr Leach’s evidence about the FIA availability allowance included that:

“49. The FIA Availability Allowance was introduced in recognition of the specialist qualifications of FIA employees, the on-call work they perform, and their requirement to be available when on periods of leave.

50. The FIA Availability Allowance has been incorporated into the 2010 Agreement, however the 2010 Agreement does not expressly describe it as an ‘availability allowance’. Clause 97.2 of the 2010 Agreement provides:

Employees designated to undertake Fire Investigation and Analysis duties shall be paid a Fire Investigation allowance in accordance with Schedule 4 Allowances.

51. Schedule 4 of the 2010 Agreement provides for a 4.5% allowance for the purpose of clause 97.2.

52. I understand that FIA employees further receive overtime penalties arising from their on-call work.” 40

Fire Services Communications Controllers (FSCCs)

[34] Mr Morris’ evidence related to the work of FSCCs, with him indicating that the primary role of the FSCC is to oversee all triple zero call taking and dispatch of fire appliances across the Metropolitan Fire District, with that work being performed from the Emergency Services Telecommunication Authority (ESTA) premises in Burwood and as such an FSCC may vary the response given to a particular situation, becoming a conduit between fire ground operations and the MFBs senior command. 41 While FSCCs may work either on a 12/12 roster or as day workers, Mr Morris is presently engaged as a day worker.42 He further described his role and potential recall in the following manner:

“13. Some FSCCs also perform roles as what we refer to as “day workers” in the MFB. In this role the FSCC will work on a Monday to Friday roster providing specialised advice and services on the computer aided dispatch system, MFBs assignment rules, radio communications or any other work relating to MFB communications and dispatch. Day workers are also trained to perform specialised functional roles with the District Control Centre which is a centralised point of command in the case of major incidents. A large portion of our work as day workers involves project work as determined by the manager of the department, reviewing of data controlled by dispatch and liaising with other emergency services organisations.

…

18. There are currently only twelve trained FSCCs across the entire MFB. However, out of the twelve, two are on long term sick leave meaning in effect we only have nine FSCCs currently available in the MFB.

19. In order to meet the needs of the rotating roster, four of these FSCCs are dedicated to on-shift roles.

20. In firefighting positions, relief for on-shift roles is built into the minimum crewing chart meaning that firefighters working off shift do not have to cover the relief needs of the on-shift crew. In contrast, with FSCCs, due to the highly specialised training and small number, we do not have in built relief in the on-shift roles and instead, relief is provided by the five remaining FSCCs who work in a day work capacity. This means, these five FSCCs must be available to attend the Burwood East communications centre and work on the shift work roster to cover all absences and leave of the four on-shift FSCCs. Absences which need to be covered can be both planned and unplanned leave such as recreational leave, long service leave, family leave, sick leave or whatever the case may be.

…

24. In the case of surge events, (for example floods, storms mass casualty events, or major incidents such as an aeroplane crash or other incident where significant resources are deployed over a period), often the day work FSCC will be recalled to duty at Burwood East to assist the FSCC on duty. Usually in the case of these events the DCC will also be in operation meaning we will be deployed in this capacity also.

25. In practice, not accounting for the requirement to provide relief, an FSCC is recalled to perform an operational role approximately five times a year with the duration of that role varying depending on the nature of the incident.” 43

[35] Mr Leach describes the work of FSCCs in the following manner:

“31. FSCCs working on the 12/12 shift roster perform a specialist role within the Emergency Services Telecommunications Authority Communications Centre located in Burwood East (Communications Centre). The FSCCs oversee the triple zero call taking and dispatch function of MFB resources across the MD. The FSCC’s monitor dispatch of MFB resources and can enhance or alter a predetermined response based on their training and MFB procedures. The FSCC also alerts senior command about any operational events of interest, such as fatalities or events that may attract media attention.

32. With the exception of extremely busy periods, only one FSCC is required to be working in the Communications Centre at a time. It is therefore not necessary for FSCCs on the 12/12 shift roster to be available in the same way day work operational staff are required to be available. From time to time, an FSCC may be rostered to day work for a period of time to undertake a specific duty or project within the Operational Communications Department or District Command Centre. There is no requirement from MFB for an FSCC on day work undertaking a specific duty or project to be available to work outside of nominated work” 44

[36] Mr Leach’s evidence refers to there presently being nine FSCC employees, all of whom work a 12/12 shift roster on an eight-day rotation consisting of 2 x 12 hour day shifts, 2 x 12 hour night shift with four days off duty. His evidence is that because of the employees’ 12/12 shift roster and the form of the 2017 Order the employees are specifically excluded from receiving the availability allowance. 45

[37] Relevant not only to consideration of the claim in respect of FSCC employees, but other parts of the UFU claim, Mr Leach notes the following about how the MFB ascertains the availability of senior officers:

“33. The MFB’s District Command Centre sends a weekly text message every Monday to all Deputy Chief Officers, Assistant Chief Fire Officers and Commanders, requesting them to advise of their availability outside of their normal working hours for the following seven-day period from Wednesday to Wednesday.

34. The MFB does not require Senior Station Officers, Station Officers or Firefighters not rostered to work the 10/14 shift roster to formally provide their availability. This is due to –

(a) the volume of these personnel rostered to duty each day shift and night shift across each of the 47 Stations; and

(b) the recall arrangements that the MFB Rosters Department has in place to recall personnel at these ranks back to duty if required.

35. This is in contrast to the senior command functions of the Deputy Chief Officer, Assistant Chief Fire Officer and Commander positions, and the smaller group of personnel qualified to perform (and therefore replace) these roles.

36. The responses received by the District Command Centre are entered into the Operational Readiness Plan – a weekly plan that runs from Wednesday to Wednesday, 52 weeks of the year.” 46

Anomaly/Commanders

[38] Mr Gatt’s evidence addressed the matter of the work of Commanders. In particular, operations Commanders oversee the MFB’s responses to fires and other incidents; have responsibility for the welfare of their firefighters; and undertake various rostering, management and training duties associated with operational firefighters. Even though he undertakes managerial duties he is also required to turn out to fires and other incidents. 47 He notes that Commanders may be either day workers or shift workers and that all ACFOs are presently day workers with none working as shift worker.48 Mr Gatt is presently an on-shift Commander, which means that his hours of work are in accordance with the 10/14 roster.49

[39] Mr Gatt’s evidence includes that he is regularly required to undertake duties outside of his rostered hours and needs to provide his availability for recall on a regular basis:

“19. On-shift Commanders are required to provide their availability for re-call to the MFB on regular basis.

20. So that on-shift Commanders are contactable the MFB provides us with a mobile phone, a pager, a laptop, and an iPad. The MFB also requires us to have a landline phone at home and reimburses us for the line rental cost.

21. Some examples of the work which we perform outside of our regular hours are: receiving and taking phone calls, receiving and responding to emails and being recalled to duty for various reasons (for example, to cover another Commanders sick leave).

22. On-shift Commanders are also required to participate in activities which day work Commanders participate in. For example, all Commanders are expected to attend the MFB Commanders Forum which is held 2 to 4 times a year. The Commanders Forum is always held during day hours and depending on when they are scheduled are often outside of our regular hours.” 50

[40] Mr Gatt’s opinion is that the current pay arrangements are unfair:

“I consider that the current pay arrangements across the rank of Commander are unfair. As a Commander who does not receive the allowance I feel that my work is devalued. I consider that it is unfair that on-shift Commanders do not receive the additional 5.5% allowance which the functional Commanders receive.” 51

[41] Mr Leach notes that there are a total of 63 Commanders, with 24 working the 10/14 shift roster and 39 working on day work arrangements. The day work Commanders receive a Special Administrative Duties Allowance. 52 His evidence also went to the subject of the rates of recall of the two categories of Commanders in the 2017/2018 year with him putting forward “that on shift Commanders were recalled almost 4 times more often than day work Commanders”. After making allowances for the fact that about a fifth of all Commanders undertook both day work or on shift work, his analysis was that day work Commanders were recalled, on average 3.82 times in the 2017/2018 financial year while on shift Commanders were recalled on average 13.86 times:

“27. On-Shift Commanders are eligible to receive other allowances and penalties arising from their work, including recall and retention allowances, which day work Commanders do not routinely receive. The MFB has recently conducted data analysis for the financial year 2017/2018 which shows that On-Shift Commanders were recalled almost 4 times more often than day work Commanders as set out in the table below.

28. The average number of recalls per day work Commanders for the 2017/2018 financial year was 3.82 while the average for On-Shift Commanders was 13.86. As a result of access to recall and retention allowances, On-Shift Commanders received much higher total remuneration than day work Commanders and are consequently disincentivised from moving to day work positions when required by the MFB. Commanders can be categorised as ‘both’ in the above table because all day work Commanders are required to do one roster (that is, 28 days) per year in operations in a District, as operational skills maintenance. During that time, the Commanders work a 10/14 roster. As can be seen in the above table, not all day work Commanders did operational skills maintenance in the 2017/2018 financial year – only 10 did ‘both’.” 53

[42] Ms Pearce endeavoured to amplify this material through data about total salaries received by employees, all of whom were Commanders, in an exhibit prepared by the MFB’s payroll department. 54 The document provided by Ms Pearce endeavours to confirm the contention put forward in Mr Leach’s statement. While the face of the document shows an average day worker salary of $177,135 per year and $186,806 per year for on-shift employees, I consider the document to be problematic since a cursory examination of the data used to compute each average leaves the impression that the average would likely be accompanied by such a wide dispersion around the mean as to not be reliable. There was both some difficulty in understanding the basis upon which the material had been compiled as well as there being a concern on my part about using the mean as an indicator of the proposition for which it is advanced. While the MFB’s contention on comparative salaries may well be correct, I doubt that the material within the exhibit provided by Ms Pearce has a sufficient degree of reliability for it to be accepted as proving the case that one group of Commanders is more highly paid than the other. Further, the exhibit does not advance the proposition that on-shift Commanders are disincentivised when a move to day work is mooted.

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[43] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 55 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.56

[44] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 57 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”58

[45] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 59 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.60 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.61 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.62 However, the relief sought may cast light on the true nature of the dispute in some cases.63

[46] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 64 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.65

[47] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 66 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 67

[48] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 68

RELEVANT AGREEMENT PROVISIONS

[49] Relevantly, the 2010 Agreement sets out the following provisions:

“19. DISPUTE RESOLUTION

19.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:

19.1.1. all matters for which express provision is made in this agreement; and

19.1.2. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and

19.1.3. all matters pertaining to the relationship between the MFESB and UFU, whether or not express provision for any such matter is made in this agreement.

The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.

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

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

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

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

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

19.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation.

The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.

19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA.

FWA may utilise all its powers in conciliation and arbitration to settle the dispute.

19.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge.

19.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the

continuance of work in accordance with this sub-clause.

19.5. This clause shall not apply to a dispute on a Health and Safety issue.

19.6. A dispute may be submitted, notified or referred under this clause by the UFU.

19.7. A decision of FWA under this clause may be appealed. A dispute is not resolved until any such appeal is determined.

23. NO EXTRA CLAIMS

23.1. There shall be no extra claims by either party.

42. ALLOWANCES

…

42.3. Any additional, new or increase of allowance above that already provided

in the agreement will be referred to FWA for determination. Both parties reserve

their rights to put their respective positions.

…”

CONSIDERATION

Jurisdictional objections

No residual question for determination/functus officio

[50] As set out above, the MFB argues that the UFU’s current application should not be permitted to proceed firstly for the reason that the 2017 Order amounted to a binding “accord and satisfaction” removing a reversion to the original cause of action then before the Commission in the form of a capacity to create new allowances or very existing ones. The 2017 Order was made with the consent of the parties pursuant to the provisions of clause 42.3 of the Agreement which provides that:

“Any additional, new or increase of allowance above that already provided in the agreement will be referred to the FWA for determination. Both parties reserve their rights to put their respective positions.”

[51] In essence the argument of the MFB is that having made the 2017 Order then, to the extent that the order dealt with the matter of the availability allowance, there would not be an opportunity for further dealings with the subject, at least under the 2016 Agreement’s clause 42.3.

[52] There is no particular evidence before the Commission which would either be admissible in relation to or determinative of the question of whether there is either an ambiguity within clause 42.3 or that would resolve such ambiguity if it was found. The clause itself is capable of a singular meaning in accordance with the ordinary and grammatical meaning of the words in the clause. It is self-evident that the 2016 Agreement contains a myriad of allowances and other entitlements which translate into payments to employees bound by the agreement. The clause has work to do in relation to proposed increases to allowances within the clause as well as to enable the consideration of additional allowances or entirely new allowances. Whereas the reference in clause 42.3 to both “additional” and “new” allowances is likely redundant, since new allowances are also additional allowances and vice versa, such tautology does not render the clause ambiguous or lead to the conclusion that it is somehow circumscribed in its scope. The clause plainly creates a mechanism in which any changes to allowances may be “referred” to what was known at the time as Fair Work Australia “for determination” at which time the parties have specifically reserved the right to say whatever it is they wished to put to the tribunal for it to take into account in its decision-making.

[53] A further two propositions are evident within the language in the clause. Firstly, it would strain credulity, as well as the language of the clause, to read into it the proposition that the clause was creating a once only opportunity for there to be increases to existing allowances but an unlimited opportunity for there to be new allowances. Clause 42.1 provides that the monetary amounts of all allowances provided for in the Agreement are set out in Schedule 4. The very first allowance within the schedule is a meal allowance prescribed to be $14.98 from the commencement of the Agreement, 30 September 2010. Given that it is common for enterprise agreements generally, as well as in this one in particular, to continue for some years past their nominal expiry date, the proposition that there could only be a singular increase to an allowance because accord and satisfaction at the time an order was made by the Commission to vary an allowance, whether by agreement or by arbitrated determination, is one that could be expected to be specifically identified in the language of the clause. That is, the argument put forward by the MFB in this regard would have greater impact if the language of the Agreement included words somehow limiting the scope of what could be done.

[54] Secondly, there is no apparent limitation on the power of the Commission to deal with the subject matter of additional, new or increased allowances. The absence of limitation extends to the capacity of the Commission to receive and deal with applications by consent as well as to deal with and determine applications which are resisted. The argument being put forward by the MFB in relation to accord and satisfaction appears to stem from a view of enterprise agreements as being contractually drafted and enforceable arrangements between workplace participants. If the MFB’s argument is accurate in respect of accord and satisfaction being a limitation upon further changes to allowances made after the commencement of the Agreement through the consent of the parties, being a contractually determine outcome, what of the circumstances in which there has been no consent of the parties and the Commission has determined a new or increased allowance against the wishes of one of the parties? In such a case, while there could be other reasons why there could not be a second round of consideration, it would appear anomalous that the clause could be read as permitting further rounds of variation in respect of arbitrated outcomes, but not in respect of consent outcomes.

[55] In all, I do not accept the proposition advanced by the MFB that principles of accord and satisfaction mean there cannot be further consideration of the matter presently before the Commission.

[56] Succinctly stated, the MFBs argument in respect of its jurisdictional objection that the Commission no longer has power to deal with the dispute for reason of functus officio are that the Commission having exercised its powers of a number of traction in relation to the dispute on 8 June 2017, cannot exercise further power in relation to the dispute. 69 In its written submissions the MFB elaborated upon its argument in this manner:

“15. The principle of "functus officio" is defined by Davidson J Ex Parte Hassell and Others Re Quirk and Another (Davidson, Street and Maxwell JJ) (1937) 37 SR 192 NSW (at p.195):

"It is established by the cases to which reference has been made that, when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done ..."

16. The doctrine of functus officio has been applied several times by the Commission and its predecessors, including for example a lengthy discussion in Spotless Services Australia Ltd v Wookey (PR929400) (Marsh SDP, Blain DP and Deegan C) at [21]-[44].

17. The Commission having exercised its powers of arbitration under clause 19.2.6 of the Agreement on 9 June 2017, it was (from that date) functus officio. It has not been open to the Commission since then, and it is not open to it now, to exercise further powers of arbitration in relation to the 2017 Dispute.

18. This is not a case where the principle identified in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 by Gaudron and Gummow JJ (with whom McHugh J agreed) at 614 ([51]) applies. There is no suggestion, by any party, that the Commission made a jurisdictional error when it made the 2017 Order.

19. There is no application before the Commission under section 603 of the FW Act to vary the 2017 Order. Nor would section 603 provide the requisite power to grant such relief if it were sought in any event. 70

20. In summary, the Commission has no power to arbitrate the 2017 Dispute – including the Availability Allowance Claim – because it has already exercised its powers of arbitration in respect of that dispute and claim. The Alleged 2018 Dispute – which is founded in the same 2017 Dispute and the same Availability Allowance Claim – must therefore be dismissed.” 71

(references from original)

[57] Against this reasoning the UFU submitted that the MFB’s contentions are misconceived, while accepting “that if a dispute is determined that dispute becomes spent and that same dispute cannot be re-agitated”. 72 In its submissions the UFU relates that the 2017 Order flows from a dispute originating in late 2016, which it refers to as the “2016 allowance dispute” to that which is now before the Commission being neither a reagitation of the 2016 allowance dispute or the matters which led to the 2017 Order:

“5. However, in order for the Commission to accept the Respondent’s submission that there is no extant dispute the Commission would need to accept that the dispute presently before the Commission is the same as the dispute that was before the Commission in the 2016 allowance dispute. As developed below, the dispute before the Commission is not the same as the 2016 allowance dispute.

6. The Respondent has mischaracterised the dispute that is presently before the Commission. Notably, the Respondent ignores the fact that the UFU has put forward five different proposed questions for determination. Instead of adopting the appropriate approach of engaging with each of these questions the respondent has proffered the vague submission that the dispute is “nothing more than a re-agitation of an aspect of the 2017 Dispute.”3 When one engages with each of the questions the error in the Respondent’s approach becomes apparent.” 73

[58] Further and specifically in relation to the claim of functus officio, the UFU argues that the resolution of the 2016 allowance dispute in the form of the 2017 Order created new obligations with attendant new rights for determination by the Commission:

“14. The Respondent claims that because the Commission exercised its arbitral power in relation to the 2016 allowance dispute it is now functus officio.

15. It is common ground that the Commission resolved the 2016 allowance dispute. Whilst the doctrine of functus officio may not strictly apply in the Commission, it is accepted that the 2016 dispute has been dealt with by the creation of new obligations. It is the content of those obligations that are now in dispute, just as the content of the terms of an enterprise agreement can be disputed. Accordingly, for the reasons outlined above at paragraphs 5 to 13 the dispute presently before the Commission is distinct from the 2016 allowance dispute and as such the Respondent’s submission is misconceived and should be rejected.” 74

(references omitted)

[59] In resolving the issues associated with the claim of functus officio, some caution must be observed in applying the earlier decisions of the Commissioner’s predecessors which are largely to do with the question of whether the tribunal should stay, proceed with, or deal with an application in the face of a legislated power to vary or revoke a decision (such as Fair Work Act 2009, s.603; Workplace Relations Act 1996, s.111(1)(f); Industrial Relations Act 1988, s.111(1)(1)(f)).

[60] Nevertheless, value is to be derived from those earlier decisions. In Spotless Services v Wookey 75 in which an argument was advanced to the effect that Deputy President McCarthy did not have power to revoke an order, the Full Bench extensively reviewed the basis upon which a decision could be reopened, as well as considering application by the Commission of the functus officio principle and summarised those considerations as follows:

“[30] From our examination of the authorities we derive the following considerations:

the act of re-opening a case is an exceptional step;

•  whether or not a decision of an administrative tribunal means that the power to make a decision is spent will depend on the legislation under which the decision-maker is acting;

•  a tribunal cannot revisit its own decision because it has changed its mind or recognises it has made an error within jurisdiction or because there has been a change of circumstances;

•  the principle of ”functus officio” should not be strictly applied if the tribunal has failed to discharge its statutory function;

•  the jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation;

•  finality is a powerful consideration;

•  misapprehension of the facts or the law cannot be attributed solely to the applicant’s neglect or default;

•  it is preferable if a single judge rectifies a decision that has miscarried rather than an appeal court;

•  circumstances can arise where a rigid approach to the principle of ”functus officio” is inconsistent with good administration and fairness;

•  if an administrative error is made the tribunal should not be bound by technicalities or legal forms and should act according to substantial justice;

•  the principle of ”functus officio” should be applied more flexibly and less formally in respect of decisions of administrative tribunals which are subject to appeal only on a point of law; and

•  if a jurisdictional error is made there is no legal impediment under the general law to a decision-maker making such a decision.

[31] We turn to determine whether McCarthy DP was “functus officio” in the context of the Workplace Relations Act 1996.

[32] In doing so we have had regard to the chronology set out above, including the following:

•  the appellant in relation to each matter filed an R21 form indicating it did not object to the Commission extending the time for lodgement;

•  it is common ground that the appellant raised the jurisdictional issue in a conciliation conference before McCarthy DP on 7 June 2002. His Honour recalled these foreshadowed applications in a transcript reference on 28 November 2002;

•  the certificates were issued on 26 September 2002;

•  an election by both applicants to proceed to a court of competent jurisdiction was made on 1 October 2002;

•  the respondents commenced proceedings in the Federal Court on 15 October 2002;

•  the appellant lodged an R21A form in each matter on 4 November 2002 indicating it wished to bring a motion to dismiss the application for want of jurisdiction (out of time);

•  the certificates were revoked by orders dated 22 November 2002;

•  the orders revoking the 22 November 2002 orders were issued on 28 November 2002; and

•  on 5 December 2002, Nicholson J of the Federal Court adjourned proceedings pending the outcome of these appeals.

[33] We adopt the reasoning of the Full Bench in Boral that (Print K5241 at p.5):

“The legal concept of functus officio is not one that fits easily with several provisions of the Act.”

[34] We note the provisions of the Workplace Relations Act 1996 which came into effect later than that decision but which are in the same or similar terms to the salient provisions of the Industrial Relations Act 1988. We also note in particular the terms of s.170JD which has application to the matter before us. Section 170JD states:

“(1) The Commission may vary or revoke an order under this Part on application by:

(a) any employer, or representative of an employer, covered by the order (whether or not named or described in the order); or

(b) any employee, or representative of any employee, to whom the order relates (whether or not named or described in the order).

(2) If the Commission is satisfied, on an application under this section, that an order under Division 2 should be varied or revoked because of a change in circumstances, the Commission must vary or revoke the order accordingly.

(3) Subsection (2) does not limit the Commission’s powers under subsection (1).”

[35] We also adopt the view of Davidson J in Ex parte Hassell that as a general rule (at p.195):

“It is established by the cases to which reference has been made that, when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done ...”

[36] The practical effect of dismissing the appeals is that the appellant would be denied the opportunity for the Commission to exercise its jurisdiction and hear the out of time applications on their merits. Those applications, if found in the appellant’s favour, would be determinative of the applications under s.170CM which are before the Federal Court.

[37] The appeals, if successful, would not result in a proceeding which was in the nature of a rehearing or a backdoor method by which the respondent can seek to argue its case. It would provide an opportunity for the appellant to have its jurisdictional applications heard.

[38] The Workplace Relations Act 1996 makes it clear that the Commission has the power to revoke an order of the nature made by McCarthy DP. There is merit in the approach taken by McCarthy DP in seeking to rectify a perceived oversight. There is considerable practical utility in adopting this approach and to do so would not be inconsistent with the comments which have been made in the authorities which expand upon or provide a qualification to the general principle of “functus officio”.

[39] However, we have had regard to the facts of the matter in the context of Justice Gleeson’s observation in Bhardwaj that “finality is a powerful consideration”

[61] In the matter of Grabovsky v United Protestant Association of NSW Ltd, 76 with reference to an application to vary earlier decisions, the President, Ross J, considered cases which expressed the value that should be given to finality of litigation as well as to the need to have regard to particular statutory contexts:

“[35] There was no precise counterpart for the express power in s.111(1)(f) of the IR Act in earlier legislative provisions, though there were express powers to set aside or vary an award. 77 In the 1931 decision of Australian Railways Union v Victorian Railways Commissioners78, the then Court implied a power to revoke orders. In the course of its judgment the Court set out a principled approach to the exercise of the inherent power, as follows:

“The applicant unions submit that the case comes within section 38(o) which enacts that the Court shall ‘as regards every industrial dispute of which it has cognizance, have power ... to re-open any question’. By the re-opening here referred to is obviously meant a reconsideration of the issue upon which a previous decision has been given and a possible reversal or modification of that decision.

Where a Court in the exercise of ordinary legal jurisdiction makes a decision upon an issue of fact or law in a proceeding it is as a rule functus officio as to that proceeding and cannot in the absence of express statutory authority re-open it for the purpose or reconsidering its decision. In the public interest it is necessary that there should be finality of litigation, subject however in many cases to a right of appeal to a superior tribunal. ...

Where however this Court is exercising its arbitral powers the essential nature of its functions is quite different from that of an ordinary Court. Its arbitral decision prescribes a continuous rule of conduct for the parties in respect of contracts of employment, a rule which, independently of any existing legal relationship between them, in effect ordains they cannot make these contracts except within the limits prescribed. This rule is intended to operate chiefly upon facts that have not yet arisen and amid circumstances that may in the future change greatly in character. An award of this Court is therefore an ordinance rather than a judgment. Moreover, orders of the Court incidental to the exercise or refusal to exercise arbitral functions such as those under section 38(h), partake of the same character - in making them the Court acts as a quasi-legislator and not as a Court in the strict sense of the word. The same reasoning seems to apply to an order setting aside the whole or part of an award. It resembles the repeal of an ordinance and the repeal of an ordinance by its maker is certainly no bar to its re-enactment by that maker.

These considerations suggest that in the absence of statutory prohibition the Court would have power to re-open any of its awards or orders made in the course of its arbitral functions including an order setting aside an award. They go to show that the words in section 38(o) as to re-opening any question are wide enough to cover such an order and they are strengthened by the fact that no arbitral orders whether positive or negative may be made the subject of appeal to any other tribunal. Having regard to the quasi-legislative nature of the Court’s activity in making such orders and to the possible need for revoking or modifying them, the power to revoke or modify should rest somewhere and its appropriate place is in the Court. ...

... that there is nothing in the Act limiting the power of the Court to deal with its own orders upon appropriate application and that the power ‘to re-open any question’ in section 38(o) is given without any qualification, forces the conclusion that the Court has power to revoke its setting aside orders in these cases provided that the relevant disputes in respect of which the awards were made are still in fact existing.

But granting the jurisdiction to revoke, there will nevertheless remain very important questions as to whether it should be exercised. These vary according to circumstances and the Court does not think it can indicate here how they should be dealt with ...” 79 

[36] As Munro J observed in Rheem-Rydalmere Plant Industrial Action Order 2002 80, the above observations provide a useful guide to how the more broadly expressed contemporary power should be exercised.”81

(references from original)

[62] Such considerations are not new in the scheme of the work of the Commission or its predecessors with Isaacs J noting in 1914 in R v Commonwealth Court of Conciliation and Arbitration and The President Thereof and The Australian Builders’ Labourers’ Federation that “When the award is once made, then—except for varying it, which is an exercise of the same authority as that under which it was originally made—the President is quâ arbitrator functus.” 82

[63] A finding in favour of the MFB in this case, to the effect that the 2017 Order was in final form and should not be revisited, would be dependent either on the finding that clause 42.3 provided a singular form of action, which I have not found for the reasoning set out above, or that considerations of the type set out within Spotless Services might otherwise lead to a finding that it is not appropriate to proceed.

[64] In relation to this latter proposition, I am not persuaded that there is a bar to determination of the applications now before the Commission. Whilst it is, of course, the case that the Commission issued the 2017 Order utilising its powers of determination, it is necessary to draw a distinction between a determination made upon the consent of the parties and one in which the Commission has imposed the result upon them after the hearing of evidence and the like. In such latter cases, absent compelling and extraordinary circumstances, or simply the effluxion of time in the case of an allowance the value of which had been eroded through cost of living factors, it may well be inappropriate to revisit the decision-making process. In this case though, at least on the contentions of the UFU, the invitation to proceed further is to do with matters of uncertainty of the description of the people to whom the Availability Allowance applies and attendant matters. Specifically, I am not persuaded that any aspect of the principle of functus officio either has application to this matter or, to the extent that the discretion requires being exercised the Commission in relation to such question, that I should be persuaded to decline to determine the matters in accordance with the evidence.

[65] Consequently, I dismiss both of the MFB’s contentions that there is no residual question to be determined by the Commission and that principles of functus officio oblige the Commission to not proceed with the application.

Failure to follow the dispute resolution procedure

[66] The MFB’s primary argument in relation to jurisdiction is the one set out above to the effect that the Commission has no power to proceed with the application. It then argues in the alternative that it views the matters now before the Commission as being new matters agitated since the dispute leading to the 2017 Order. In this regard it argues that because the dispute resolution procedures set out within clause 19.2 of the 2010 Agreement have not been followed there is no power for the Commission to deal with the things now sought by the UFU.

[67] In response the UFU submits that while the matters presently before the Commission, are a dispute brought under clause 42.3, which in turn invokes the dispute resolution procedure within clause 19, they are not required to go through the steps for progression of dispute as set out within clause 19.2.

[68] Previous decisions on the subject of the necessity to follow a stepped dispute resolution procedure have both recognised the need for adherence to the procedure as well as accepting there may well be circumstances in which departure is permissible.

[69] After reviewing earlier decisions on the subject the Full Bench in The Australian Workers’ Union v MC Labour Services Pty Ltd 83 (MC Labour Services) made the following pertinent findings:

“[36] The AWU contended before us that it could not responsibly have complied with the steps in paragraphs (a), (b) and (d) of clause 10.4 because this would have required it to provide the names of its members to MC Labour and the VBIDP, with potential adverse consequences for the employees in question. However, the union acknowledged that its concerns were based only on supposition. Indeed it was not established that either MC Labour or the VBIDP would actually have required the AWU to identify the names of its members involved in the alleged dispute. MC Labour for its part rejected any suggestion that employees would have suffered any detriment in connection with having raised a workplace grievance.

[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. 84  Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. 85 The legislative framework, including s.186(6), is part of that context.86 There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.”

[70] While the Full Bench in MC Labour Services found that the relevant dispute settlement procedure was not free to be departed from, with the same reasoning being applied in two other matters drawn to the Commission’s attention by the MFB in these proceedings by Commissioner Bissett in Freeman v State of Victoria (Department of Education & Training) 87 and by myself in ANMF v Japara Healthcare Limited,88 the subject matter of the disputes now before me, as well as the provisions of the relevant enterprise agreement, are materially different.

[71] In this case I am satisfied that the dispute now agitated by the UFU arises under clause 42.3 which, because of its language, may in some regards be described as providing an alternative head of resolution power to that contained within clause 19. This is because the clause is somewhat simply drafted, and provides that any allowance above that already provided in the Agreement will be referred to the Tribunal for determination. In comparison, the obligation to follow the stepped dispute resolution procedure as set out within clause 19.2 is for those matters arising within clause 19.

[72] In any event I am satisfied that the general exception identified by the Full Bench in MC Labour Services has application. The matters presently before the Commission are plainly permitted to be dealt with by the Commission in a manner different to that prescribed within clause 19.2.

[73] Because of these findings, that the matters encompassed within the first made application, C2018/1135 are properly before the Commission, it follows that it is unnecessary to determine the matters dealt with in C2108/5622.

[74] As result, the MFB’s jurisdictional objection that the UFU’s applications are not able to proceed because the local disputes procedure have not been followed is dismissed.

Extra claims, in breach of the “no extra claims” clause

[75] The MFB argues that the UFU’s applications are extra claims by the UFU, in contravention of clause 23.1 the 2010 Agreement or alternatively an attempt to vary the Agreement in a matter not contemplated by the Act.

[76] After conceding that clause 42.3 “provides the ability for claims be made in relation to new or increased allowances, in a way not normally seen in enterprise agreements”, 89 the MFB returns to its argument that the 2017 Order extinguished any capacity for the UFU to go further in relation to allowances dealing with the subject matter of the availability allowance. It argues therefore that claims over and above those extinguished by the 2017 Order are an endeavour by the UFU to press extra claims in contravention of clause 23.1. Following from this argument it is put that any subsequent order by the Commission as presently constituted “in respect of such an extra claim would therefore be inconsistent with the terms of the Agreement: such an order should not, and cannot, be made: s.739(5) of the FW Act”.90 The MFB submits that unless clause 42.3 allows a claim to made, further claims of the kind within the matters now before the Commission are not allowed because they contravene clause 23.1,91 with any subsequent order of the Commission being inoperative:

“33. Further, and also as a consequence of clause 42.3 of the Agreement no longer being a source of power in relation to the Availability Allowance Claim (for the reasons set out in paragraph 28 above), the effect of any order extending or broadening (or otherwise modifying) the availability allowance would be to modify the terms and conditions of employment provided by the Agreement.

34. The scheme of the FW Act is that variation to enterprise agreements is allowed only in very limited circumstances and in accordance with the terms of Division 7 of Part 2-4. None of those circumstances apply in this case, nor has any application for variation been made under Division 7 of Part 2-4.

35. The process in clause 42.3 having been exhausted, in relation to the Availability Allowance Claim (for the reasons set out in paragraph 28 above), it follows that the only method available to vary the availability allowance is an application under Division 7 of Part 2-4. No such application has been made here, and the orders proposed by the UFU cannot be made.” 92

[77] In response, the UFU notes that the MFB’s submission is dependent on acceptance either that the dispute presently before the Commission is the same as that leading to the 2017 Order, or that the UFU is seeking to vary the terms of the Agreement. The UFU rejects the basis of these propositions. 93

[78] As part of its analysis of the origins and operation of no extra claims provisions the Full Court in Toyota Motor Corporation Australia Ltd v Marmara and Others 94 noted the following:

“55. It is clear, therefore, that a prohibition on “further claims” (or “extra claims”) was not novel when the present parties made the Agreement in 2011: it had a long history in Australian industrial regulation. Originally, those words were the formula by which a union that was a party to an award which came up for a national wage adjustment was required to give an undertaking the object of which was to avoid a situation in which employees covered by the award would have the benefit of such an adjustment at the same time as being at liberty to pursue other claims for improvements in wages or conditions. The formula was then, for a time, used for a similar purpose at the point where agreements came to be certified under the 1988 Act. Within that context, to regard the assertion of a right or entitlement as a limiting criterion of what constituted a “claim” would not reflect the purpose for which the formula was employed. The purpose was to require the parties — usually the relevant union and its members — to foreswear any attempt to improve upon the wages, conditions and other benefits for which the relevant industrial instrument provided. At the time (ie until 1996), there was nothing in the legislation which prohibited the taking of industrial action by a party who sought to improve upon benefits obtained under a recently-made agreement or award, so the prohibition on further claims provided, quite probably, the only practical means of keeping such a party to his or her bargain (or, as appropriate, to the terms of the award which he or she had sought).”

[79] In the context of its final decision the Full Court accepted the submission that the clause in question was fundamental to the bargain the employer had reached with its employees and their representatives and that it would be inappropriate to attempt to modify the meaning “whenever it should be convenient to do so for the more effective achievement” of various mutually held objectives. 95

[80] Similar matters with similar reasoning to those presently before the Commission were dealt with by the Full Court in the matter of United Firefighters Union of Australia v Country Fire Authority 96. In that matter the CFA took issue with a clause not dissimilar to clause 42.3 and argued there had been error in the decision at first instance in the conclusion that the clause “was an independent power to arbitrate the allowance claims”, with the reference to independence being a reference to the alternatives either of bargaining progression of the matter through a dispute resolution procedure:

“(d) The Commission Issue

250. The CFA then challenged the validity of clause 38.3, which is in these terms:

“In accordance with existing practice the parties agree that any new allowance and/or variation to an existing allowances claim will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.”

251. There were a number of complaints about this clause but each had as its premise a construction which assumed that it was free-standing and did not rely upon the machinery of the dispute resolution clause, clause 15. The primary judge was not disposed to agree with that construction holding at [241] that it did not permit the arbitration of allowance claims outside the dispute resolution machinery of clause 15.

252. On the appeal the CFA submitted that his Honour had erred in so concluding and that properly construed clause 38.3 was an independent power to arbitrate allowance claims. This was said to give rise to invalidity for four reasons:

(a)the scheme of the FW Act was premised on bargaining and as such clause 38.3 reintroduced a concept of arbitration which was, outside tightly constrained circumstances, contrary to the statute's underlying philosophy;

(b)the proper characterisation of clause 38.3 was that it was a clause about the powers of the Commission. It followed that it was not about the relationship between employer and employee and could not therefore be a “permitted matter”. This had the consequence that it was invalid;

(c)the clause was said to have an uncertain operation; and

(d)it was said that clause 38.3 was not a dispute resolution procedure. This mattered because under the Act only such provisions may involve referrals to the Commission of matters for arbitration.

253. We agree with the primary judge's approach, under which these issues do not arise. His Honour began by seeking to construe the clause in its full context which included the fact that the parties had been unable to reach agreement on 44 identified matters in the lead up to the Agreement. In order to overcome that impasse they had agreed — and this agreement was recorded in writing — that they would seek to reach agreement about these issues or otherwise refer them to the Commission for arbitration. As the primary judge correctly observed, this agreement sat, at least prima facie, a little uncomfortably with two other clauses. The first of these was clause 65 under which the parties bound themselves to make no further claims on each other. The second was the dispute resolution clause itself (clause 15). His Honour concluded that these not-yet-agreed matters were the subject matter of clause 38.3. So viewed it was to be seen as an explicitly contemplated carve-out from the no-further claims clause. Further, instead of being inconsistent with the dispute resolution clause the primary judge thought that it was simply one of the matters with which that clause could deal.

254. We are not sure that we share the primary judge's view that clause 38.3 was only a carve-out from the no-claims clause in respect of the pre-identified 44 matters although we accept it was certainly at least that. Its language is expressed, however, in terms which are not so confined. But whether the clause is limited in that fashion or not, we do not doubt his conclusion that the clause is merely to be read as dealing with one of the categories of disputes with which clause 15 might deal. This is for at least two reasons. First, whilst it is possible to read clause 38.3 as permitting the parties to determine allowances without ever having a disagreement about them and simply referring the issue for initial determination by the Commission, it is difficult to imagine those circumstances happening in the real world. The reference in the last sentence of the clause to the parties reserving their right to put their respective positions to the Commission rather assumes in the first place that they have differing positions which might be put.

255. Secondly, the language of clause 15.1.1 then becomes apposite for it shows (“ … all matters for which express provision is made in this agreement”) that it was intended that it should pick up and apply to other provisions in the agreement. In our opinion, clause 38.3 is such a provision.

256. Accordingly, as the primary judge correctly held, clause 38.3 is not the source of a power to refer matters to the Commission but merely the stipulation of another category of dispute to which clause 15 applies.

257. That being so, each of the CFA's challenges to the clause must fail. Properly construed, the clause is part of the dispute resolution procedure which the Act contemplates should exist and in respect of which it explicitly permits resolution by the Commission. The reference, in that circumstance, to an ability in the Commission to resolve these disputes is not contrary to the scheme of the legislation.”

[81] I am satisfied from the material before the Commission that the subject matter of the applications was not extinguished with the making of the 2017 Order, with the corollary that clause 42.3 gives the capacity for the UFU to make further claims in respect of allowances generally. Secondly, I am satisfied that the applications do not amount to a breach of the no extra claims commitment within clause 23.1 the 2010 Agreement, because clause 42.3 specifically countenances new claims for allowances to be pressed after the making of the Agreement.

Exercise of judicial power

[82] Finally, the MFB contends that what the UFU is seeking to do is to have the Commission interpret and enforce the 2017 Order with that purpose being an exercise of judicial power reserved to a Court. 97

[83] The UFU characterises the MFB’s arguments in this regard as an undeveloped submission that should be rejected and submits that what the Commission is being called upon to do is to settle the dispute through private arbitration, a purpose specifically permitted of the Commission in the Private Arbitration Case, 98 with it being clear that;

“Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it” 99

[84] I concur with the UFU that the MFB’s submission in respect of its contention that the Commission is being asked to exercise judicial power is undeveloped.

[85] The matters sought to be developed before the Commission are matters enlivened by the dispute resolution procedure and, for the reasons set out elsewhere, within jurisdiction. As a result, I am satisfied that the matters being sought by the UFU are properly within the private arbitration power of the Commission.

Merits of the applications

Is the availability allowance for all purposes?

[86] The proposition before the Commission is that part of item [16] of the 2017 Order, dealing with the Availability Allowance, expressed to provide for “an allowance of 5.5% of their salary” should be interpreted in such a manner as to require that it be paid for all purposes.

[87] I am satisfied, for the reasons set out above, that the terms of the 2017 Order are matters encompassed within the dispute resolution term of the 2010 Agreement with the Commission then having power to deal with the dispute in accordance with the term.

[88] In accordance with the principles of interpretation of enterprise agreements, referred to above, it is first necessary for the Commission to consider whether the provisions of the Availability Allowance contain an ambiguity. In forming my views on the subject, I have had regard to the fact that the 2017 Order deals with numerous different allowances, using different language throughout the document. Some allowances, seemingly have no inconsistency or ambiguity associated with them, and are expressed as rates per hour, per shift, per week or per year. However, other allowances are expressed to be an allowance of a particular rate as applicable from time to time (for example Senior Leading Firefighter Allowance, Senior Fire Service Communication Controller Allowance) and only one allowance is expressed as a percentage of one’s salary, that of course being the Availability Allowance.

[89] I am satisfied that there is ambiguity within the term, with that ambiguity being the employment of the word “salary”. This view is formed by having regard to several matters. Firstly, I take into account the context of the language employed within the 2017 Order and the 2010 Agreement in its entirety. It is apparent that use of the word “salary” appears to have arisen without any specific intention on the part of the drafter other than perhaps to make reference to the totality of payment against which a percentage allowance would be applied. That intention is not inconsistent with what could be discerned as the drafter’s intention for other allowances which are expressed as being a percentage of the “[r]ate as applicable from time to time”. Secondly, I have had regard to the evidence given about the parties’ employment of the dispute resolution procedure in early 2017, which identified that the allowance which has prevailed within the proposed 2016 Agreement would be payable for all purposes. Sequentially at least that discussion, in March 2016, predated the 2017 Order which was made on 8 June 2017. The March 2016 discussion between the MFB and the UFU was clear about would be occurring in relation to what is evidentially the same allowance in a future agreement, differentiated from that which they were negotiating for the purposes of what became the 2017 Order only with the reference to payment for all purposes.

[90] I have also had regard to the evidence in the form of an email from Ms Pearce to Ms Baldini, dated 3 May 2017, again predating the June 2017 Order, which specifically asks the UFU to confirm that the Availability Allowance “is the only allowance that is to be paid as an all-purpose allowance”. I accept that correspondence as admissible extrinsic evidence which objectively confirms that the intention of the parties in May 2017 was to have the Availability Allowance paid for all purposes. In accepting that evidence, I consider the MFB’s evidence that there was no discussion, let alone a resolved discussion, of the allowance being paid for all purposes to be mistaken.

[91] These matters together lead to a finding to the effect that the first of the UFU questions posed for determination is to be answered in the affirmative. Because of this answer, the second of the UFU questions for determination is unnecessary to answer. Since that is the case, it is unnecessary also to resolve the UFU argument that there should be consistency of approach between how the MFB pays this allowance and how a similar one is paid withn the CFA.

[92] Accordingly, the Commission’s findings in relation to questions 1 and 2 are as follows:

1. Does the Order dated 8 June 2017 require the MFB to apply the availability allowance for all purposes?

A: Yes.

2. In the event that the Order dated 8 June 2017 does not require the MFB to apply the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable), should the Commission order a new allowance which provides that employees be paid the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable)?

A: Unnecessary to answer.

Entitlement of employees below the rank of Commander to the Availability Allowance

[93] The third and fourth of the UFU questions for determination relate to the matter of whether employees below the rank of Commander are entitled to be paid the Availability Allowance provided for within the 2017 Order.

[94] Two employees who would be affected by an affirmative answer to the question posed by the UFU gave evidence in the Commission’s proceedings. They were Damien O’Toole who is a trained Fire Investigator working in the FIA and who substantially holds the rank of Station Officer and is presently acting in the position of Senior Station Officer and Ian Morris who normally holds the rank of Fire Services Communications Controller (senior) and Station Officer. Another employee, Dan Gatt, also gave evidence, with Mr Gatt presently holding the rank of Commander and having acted on two occasions as an ACFO. Mr Gatt’s evidence is not directly relevant to the resolution of this question.

[95] The context for these questions includes that the UFU argues that the Availability Allowance is not being paid by the MFB to employees who have a rank below that of a Commander, meaning that it is not paid to Fire Services Communications Controllers or to those employed in the Fire Investigation Unit. 100 While at a practical level the allowance is probably not being paid to people beneath the Commander level, the MFB describes its application of the Availability Allowance as not being determined by an operational staff member’s position or rank, but rather by reference to the work they perform:

“…but rather by determining whether the employee is:

(a) appointed or allocated to a Region, Station and/or Department;

(b) not working the 10/14 shift roster (or 12/12 in the case of FSCC’s); and

(c) required to be available or notify they are available after working hours to deal with operations matters.” 101

[96] Different circumstances arise between FSCC and FIA employees.

[97] Broadly speaking, FIA employees are presently in receipt of an extra allowance pertaining to their fire investigation work, whereas I am unaware of whether FSCC employees receive any specialist allowance pertaining to their duties. FIA employees at least are also entitled to receive overtime penalties arising from their on-call work. 102

[98] Mr Morris’s evidence included that the role of an FSCC is highly specialised with the capacity to enhance or alter a predetermined response to any particular event. His evidence also includes that some FSCCs work in accordance with a 12/12 roster and that others do not. He argues through his evidence that the majority of FSCCs are rostered on day work 103 and that FSCCs generally will often undertake after hour’s work providing advice and assistance as required, concluding that the “role of the day work FSCC therefore is one that has significant requirements to be available and on call at all times to perform our role”.104 His evidence also included that an FSCC working in managerial levels will not be paid an Availability Allowance even though they are required to be contactable for system outages and issues.105

[99] Mr O’Toole’s evidence, dealing with the Fire Investigation and Analysis Unit includes that the unit comprises six fire investigators beneath the manager who is presently a Commander, but who does not have a requirement to be qualified Fire Investigator, even though the current manager is a qualified Fire Investigator. His evidence encompasses the duties to be expected of FIA employees and the means by which they undertake that work. After noting that FIA employees do not work a 10/14 roster and that instead they are day workers performing a total of 410 hour shift each week, Mr O’Toole’s evidence is that all FIA employees are subject to on-call arrangements:

“…The percentage of time we each spend on-call depends on the number of FIA employees there are at any given time to cover the FIA on-call requirements. The on-call cycle requires you to be available 24 hours a day over a consecutive seven day period, including attending five ten-hour shifts Monday to Friday as the Lead Investigator.” 106

[100] Mr O’Toole referred to an analysis of the on-call work of FIA employees undertaken by the unit’s present manager, which he said demonstrated “on average FIA employees are on-call one week in every two and a half weeks [equating to] being on-call approximately 41% of the time”. 107

[101] Mr Leach notes that the MFB presently makes payment to FIA employees consistent with an agreement reached between the organisation and the union in 2010. An internal memo from 2010 which included discussion about the subject ultimately recommended several matters, which were accepted by the MFB, including there be a formalisation of “arrangements that have been in place for many years to ensure that all permanent fire investigators, in FIA, be paid the “availability allowance” and that this allowance be annualised (in accordance with the original agreement) and retrospective to form part of ordinary time earnings”. 108 Several parts of the memo refer to the allowance being quantified at 4.5% of base salary.

[102] In connection with this matter Mr Leach sets out the following understanding of the MFB with current circumstances:

“48. From 10 May 2010, all FIA employees have received an availability allowance under an agreement reached between the UFU and the MFB (2010 FIA Agreement). The 2010 FIA Agreement provides that –

all permanent fire investigations, in FIA, be paid the “availability allowance” [of 4.5%], and that this allowance be annualised…and retrospective to form part of ordinary time earnings.

(FIA Availability Allowance)

…

49. The FIA Availability Allowance was introduced in recognition of the specialist qualifications of FIA employees, the on-call work they perform, and their requirement to be available when on periods of leave.

50. The FIA Availability Allowance has been incorporated into the 2010 Agreement, however the 2010 Agreement does not expressly describe it as an ‘availability allowance’. Clause 97.2 of the 2010 Agreement provides:

Employees designated to undertake Fire Investigation and Analysis duties shall be paid a Fire Investigation allowance in accordance with Schedule 4 Allowances.

51. Schedule 4 of the 2010 Agreement provides for a 4.5% allowance for the purpose of clause 97.2.

52. I understand that FIA employees further receive overtime penalties arising from their on-call work.” 109

[103] Mr O’Toole’s rebuttal of this recitation of past factors includes that this matter was agreed prior to the 2010 Agreement with the allowance itself not referencing someone being on-call but rather being “paid to employees designated to undertake Fire Investigation and Analysis duties”. 110 He further notes that:

“e. The current 2010 Fire Investigation Allowance is replicated in the proposed MFESB UFU Operational Staff Agreement 2016 (2016 Agreement), with the inclusion of a 4.5% Fire Investigation Allowance. The 5% Fire Investigation Allowance is also in the proposed CFA UFU Operational Staff Enterprise Agreement 2016. The recognition of skills, experience and qualification across the MFB as allowances is not unusual with many examples of such allowances currently in place including IFE allowances, USAR, High Angle Rescue, Marine, HAZMAT, JFAIP, Certificate IV, and Diploma in Training.

f. The proposed MFB 2016 Agreement has introduced a new 5.5% Availability Allowance, recognising the availability requirements of MFB operational outside our normal working hours. Given the significant after hours availability requirements of FIA employees, it is reasonable that this new Availability Allowance should apply to FIA employees. As an example of FIA employees availability requirements, in October 2018 I am required to give evidence at a trial of an alleged triple murder that occurred in March 2017. This is in the middle of my annual leave, however myself and other fire investigators will be required to attend to give evidence at this trial which may take up to three weeks.

g. The overtime penalties FIA employees receive for being called out on operational duties outside work hours also applies to MFB staff who are currently eligible to receive the 5.5% Availability Allowance.” 111

[104] The term of the allowance in dispute has been referred to already on several occasions above. After considering all of the evidence before the Commission in relation to the term I am not persuaded that there is any relevant ambiguity and that accordingly it is appropriate to construe the allowance on the basis of the ordinary and grammatical meaning of its words.

[105] The evidence given by Mr Leach in respect of the origins of the allowance now contained within clause 97.2 and entitled “fire investigation” is interesting, however it is not determinative of the question now before the Commission. Mr O’Toole rightly rebuts Mr Leach’s review of the “fire investigation” allowance’s origins by pointing out that the managerial recommendations referred to pre-dated the clause in the 2010 Agreement. To the extent that Mr Leach’s evidence about the origins of the allowance may be regarded as evidence of objective background facts their relevance dissipated with the formation of the 2010 Agreement. The opportunity to say that the Fire Investigation Allowance was to be paid for the work associated with after-hours callouts and the like and not just for the extra duties associated with being in the unit was available to the negotiators in bargaining for the 2010 Agreement, but apparently not seized by them. Construction of the 2010 Agreement, together with the 2017 Order is therefore ultimately not assisted by the background matters to which Mr Leach refers. It follows from that conclusion that I am unable to be satisfied that the “fire investigation” allowance contained within clause 97.2 was established for the same or substantially the same purpose as that which is now claimed by the UFU in this application.

[106] At least in respect of this particular question the matter is to be resolved through consideration of whether FIA and FSCC employees are entitled to be paid the Availability Allowance set out within the 2017 Order. Resolution of that question is not to be achieved through considerations such as whether the relevant employees do so much after hour’s work as to justify an allowance, or whether there might be some double dipping because of some other allowance established for what is likely some other purpose.

[107] In some respects, and particularly in the absence of any ambiguity or objective facts of an alternative construction, the question posed by the UFU is a statement of the obvious. There is nothing within the plain language of the term of the 2017 Order that would imply that the allowance is to be confined only to certain senior ranks or that it will not to be paid to others who may be in receipt of some other allowance.

[108] The plain meaning of the term is to provide for an allowance to any employee covered by the 2010 Agreement who meets all three of the conditions within the term. That is, in order to be eligible for the allowance, an employee must firstly be someone “appointed or allocated to Regions, Stations and Departments”; secondly they must not be working either the 10/14 shift roster or a 12/12 roster in the case of an FSCC employee; and thirdly they must be required to be available so that they are available after working hours to deal with operations matters. It follows from this action that anyone who meets these conditions, whether or not they are engaged beneath the Commander classification, is entitled to receive the Availability Allowance. As a result, the third question is answered in the affirmative and it is unnecessary, because of that answer to then answer the fourth question.

3. Are employees below the rank of Commander, who meet the other criteria in the Order dated 8 June 2017, entitled to be paid the availability allowance pursuant to the Order?

A: Yes, provided the employee meets each of the criteria specified in the Order, namely;

a) they do not work the 10/14 roster (or 12/12 in the case of FSCC’s); and

b) they are either required to be available after working hours to deal with operations matters or they notify the MFB they are available for such matters.

4. In the event that employees below the rank of Commander, who meet the other criteria in the order dated 8 June 2017, are not entitled to be paid the availability allowance pursuant to the Order, should the Commission order a new allowance which provides that such employees be entitled to receive an availability allowance of 5.5% of their salary?

A: Unnecessary to answer.

Should there be a new shift work Commander qualification allowance?

[109] As originally drafted, the fifth question for determination by the Commission referred to the establishment of a new allowance to be payable both to Commanders and ACFOs working a 10/14 roster. The question was modified after the hearing had concluded when solicitors for the UFU advised that the union no longer pressed its request for the Commission to determine that part of the question referring to ACFO employees.

[110] The argument posed by the UFU is couched as an anomaly:

“48. The additional allowance is sought to address an anomaly that requires rectification. Currently, Commanders who are on the 10/14 roster are missing out on the additional compensation which is currently paid to day work Commanders for the disutility of having to work outside of hours despite regularly working outside of day hours.

49. Commanders on the 10/14 roster are qualified and competent and required to be able to perform the same on-call functions and roles as day work Commanders. However, they are not required to be on call because they are on the 10/14 and perform such functions and roles during their regular shift hours. In the circumstances, to address this anomaly and address the inequity in the pay structure within the rank of Commander the Commission ought to order a shift work ACFO/Commander qualification allowance.” 112

[111] In response to this part of the application, the MFB submits the claim has dubious industrial merits and was not part of the 2017 dispute:

“73. The claim enunciated at paragraphs 46 to 49 of the UFU has dubious industrial merit. Nor is it a claim that was part of the 2017 Dispute. While the form F10 dated 2 March 2018 in the Alleged 2018 Dispute states at paragraph [8] that the UFU “wish to enter into discussions with the MFB” about this claim, there is no evidence that such discussions (or any steps under clause 19) occurred before the filing of the Alleged 2018 Dispute with the Commission.

74. Properly understood, this aspect of the UFU’s claim is for an availability allowance to be paid to employees on the 10/14 shift roster, even though they are not required to be available outside of their rostered shifts. The claim should be rejected.

75. An availability allowance is paid for a particular reason – to compensate employees for the requirement to remain ready, willing and able to work outside of their working hours. The reason that employees who are not required to be available are not paid the compensation is self-evident: there is nothing to compensate them for. This is not an “anomaly” or “inequity” as claimed by the UFU. It is simply a consequence of the relevant employees not being required to be available outside of hours to work.” 113

[112] Mr Leach’s evidence about the number of Commanders engaged by the MFB includes the following:

“There are in excess of 20 Departments within the MFB, including the Fire Safety Department, Community Resilience Department, and the Dangerous Goods Department. There are a total of 63 Commanders within the MFB, with 24 of the Commanders appointed as District Operations Commanders working the 10/14 shift roster and, approximately 39 Commanders appointed to day work and perform technical or specialist roles within day work departments. These day work Commanders receive the Special Administrative Duties Allowance.” 114

[113] The evidence before the Commission in support of resolution of the anomaly asserted by Commanders is primarily that of Mr Gatt who presently works the 10/14 roster 115 and relates his duties as an operational Commander and compares those duties with those of functional Commanders, as follows:

“12. As an operations Commander some of my key responsibilities include:

a. Overseeing the MFBs response to fires and other incidents (for example emergency medical response).

b. I am also responsible for looking after the welfare of my Firefighters.

c. Rostering duties including managing absences and arranging replacement Firefighters.

d. Overseeing and managing the maintenance of skills and training of my Firefighters.

13. Whilst operations Commanders undertake managerial duties they are also required to turn out to fires and other incidents as part of the role.

13. Whilst operations Commanders undertake managerial duties they are also required to turn out to fires and other incidents as part of the role.

14. A functional Commander is not allocated to a particular district but is allocated to a particular department and is responsible for running that department.

15. For example, there is a functional Commander who is in charge of each of the following departments:

a. Urban search and rescue;

b. High angle rescue;

c. HAZMAT;

d. Marine;

e. Fire Investigation and Analysis; and

f. EMS.” 116

[114] Mr Gatt’s evidence also dealt with the after hours work required of him, with that evidence referred to earlier. 117

[115] Having reviewed all of the evidence presented in relation to the after hour’s work which may be undertaken by Commanders working a 10/14 roster it appears that the additional work itself is largely incidental to that which is performed within the roster. Mr Gatt’s evidence does not take the argument beyond that which would be expected of any senior level employee and does not adequately go to the matter of whether payments that may be otherwise due to him from other parts of the enterprise agreement are insufficient. The argument that the current arrangements within the 2010 Agreement for work performed outside of the roster either insufficiently compensate employees for that work or that their situation is anomalous in comparison to other employees is not readily apparent.

[116] As result I am not persuaded that a new allowance should be ordered in the manner sought by the UFU. Accordingly the fifth question is answered in the negative.

5. Should the Commission order a new allowance which provides that Commanders who are on the 10/14 roster receive an additional allowance of 5.5% of their salary which will be known as the “shift work Commander qualification allowance”?

A: No.

CONCLUSION

[117] For the reasoning set out above, the dispute presently before the Commission is determined as follows;

1. Does the Order dated 8 June 2017 require the MFB to apply the availability allowance for all purposes?

A: Yes.

2. In the event that the Order dated 8 June 2017 does not require the MFB to apply the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable), should the Commission order a new allowance which provides that employees be paid the availability allowance for all purposes (i.e. when the employee is on leave or otherwise unavailable)?

A: Unnecessary to answer.

3. Are employees below the rank of Commander, who meet the other criteria in the Order dated 8 June 2017, entitled to be paid the availability allowance pursuant to the Order?

A: Yes, provided the employee meets each of the criteria specified in the Order, namely that;

a) they do not work the 10/14 roster (or 12/12 in the case of FSCC’s); and

b) they are either required to be available after working hours to deal with operations matters or they notify the MFB they are available for such matters.

4. In the event that employees below the rank of Commander, who meet the other criteria in the order dated 8 June 2017, are not entitled to be paid the availability allowance pursuant to the Order, should the Commission order a new allowance which provides that such employees be entitled to receive an availability allowance of 5.5% of their salary?

A: Unnecessary to answer.

5. Should the Commission order a new allowance which provides that Commanders who are on the 10/14 roster receive an additional allowance of 5.5% of their salary which will be known as the “shift work Commander qualification allowance”?

A: No.

COMMISSIONER

Appearances:

W. Friend QC and Y. Bakri of Counsel for the Applicant.

B. Avallone of Counsel for the Respondent.

Hearing details:

2018.

Melbourne;

15 October.

Printed by authority of the Commonwealth Government Printer

<PR703626>

 1   AE881005.

 2   PR593629.

 3   Ibid.

 4   [2017] FWC 3172.

 5   Exhibit A10, Applicant Outline of Submissions, [14].

 6   Exhibit R3, Witness Statement of Deputy Chief Officer Gregory Leach, [21].

 7   Exhibit A10, [32].

 8   Exhibit R5, Respondent Outline of Submissions, [9] – [13].

 9   Ibid, [14] – [20].

 10   Ibid, [21] – [26].

 11   Ibid, [27] – [35].

 12   Ibid, [36] – [37].

 13   Ibid, [38]; [47] – [51], [52] – [56]; [57] – [64].

 14   Transcript, PN 942.

 15   Exhibit A12, Applicant's Closing Submissions, [21] – [23].

 16   Ibid, [27] – [29].

 17   Ibid, [35] – [42]; [43] – [45].

 18   Exhibit A1, Witness Statement of Michelle Baldini, [14]; Exhibit A3, Witness Statement of Rini Krouskos, [8].

 19   Exhibit R1, Witness Statement of Jeanette Pearce, [18].

 20   Ibid, [6].

 21   Transcript, PN 661-664.

 22   Exhibit R1, [41].

 23   Ibid, [6].

 24   Ibid, [42].

 25   Ibid, [45].

 26   Ibid, [17].

 27   Exhibit R3, [10].

 28   Exhibit A1, Attachment JP9.

 29   Transcript, PN 677 – 678.

 30   Transcript, PN 680 – 684.

 31   Transcript, PN 703.

 32   Exhibit R1.

 33   Exhibit A4, Witness Statement of Station Officer Damien O'Toole, [5] – [6].

 34   Ibid, [15].

 35   Ibid, [16].

 36   Ibid, [18].

 37   Ibid.

 38   Exhibit R3, [45] – [47].

 39   Ibid, [48].

 40   Ibid.

 41   Exhibit A8, Witness Statement of Acting Manager Operation Communications Ian Morris, [6] – [10].

 42   Ibid, [11] – [14].

 43   Ibid.

 44   Exhibit R3.

 45   Ibid, [29] – [30].

 46   Ibid.

 47   Exhibit A6, Witness Statement of Commander Dan Gatt, [12] – [13].

 48   Ibid, [8].

 49   Ibid, [9].

 50   Ibid.

 51   Ibid, [26].

 52   Exhibit R3, [24].

 53   Ibid.

 54   Ibid, R2, Payroll Data for Special Administrative Duties Employees and On Shift Employees; Transcript PN 574 – 579.

 55   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

 56   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 [52].

 57   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 58   SDA v Big W Discount Department Stores PR924554 at [23].

 59   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [23].

 60   Ibid [47].

 61   MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 62   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [21]-[22].

 63   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 64   The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

 65   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 66   [2017] FWCFB 3005.

 67   Ibid [114].

 68   [2017] FWCFB 4537.

 69   Exhibit R4, Objections correspondence to the Commission, 6 July 2018.

 70   Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 5161 at [22]-[45].

 71   Exhibit R5.

 72   A11, Applicant Reply Submissions, [4].

 73   Ibid.

 74   Ibid.

 75   Unreported, AIRCFB (2003) PR929400.

 76   [2015] FWC 5161.

 77   See s.5 of the Conciliation and Arbitration Act 1957 and s.49 of the Conciliation and Arbitration Act 1904-1955.

 78   (1931) 30 CAR 766.

 79   Ibid 30 CAR 766 at paragraphs 767-769.

 80   Print PR929970, 9 April 2002 at paragraph [39]

 81   Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 5161.

 82   [194] HCA 32, 18 CLR 224.

 83   [2017] FWCFB 5032.

 84   Or such later day specified in the agreement – s.54(1).

 85   [2017] FWCFB 3005 at [114].

 86   Ibid at [114], principle 1(iii).

 87   [2018] FWC 212.

 88   [2018] FWC 3918

 89   Exhibit R5, [28]

 90   Ibid, [29].

 91   Ibid, [32].

 92   Ibid.

 93   Exhibit A11, [24] – [25].

 94   [2014] FCAFC 84, (2014) 222 FCR 152, 244 IR 335, [55].

 95   Ibid, [71].

 96   [2015] FCAFC 1, 247 IR 167.

 97   Exhibit R5, [36] – [37].

 98   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and Ors) [2001] HCA 16 (15 March 2001); (2001) 75 ALJR 670; (2001) 103 IR 473.

 99   Ibid, [31], per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

 100   Exhibit A10, [14].

 101   Exhibit R3, [21].

 102   Exhibit R3, [52].

 103   Exhibit A9, Reply Witness Statement of Acting Manager Operations Communications Ian Morris, [4].

 104   Exhibit A8, [29].

 105   Exhibit A9, [4].

 106   Exhibit A4, [16].

 107   Ibid, [18].

 108   Exhibit R3, Attachment GL3.

 109   Exhibit R3.

 110   Exhibit A5, Reply Witness Statement of Station Officer Damien O’Toole, [4](d).

 111   Ibid, [4].

 112   Exhibit A10.

 113   Exhibit R5.

 114   Exhibit R3, [24].

 115   Exhibit A6, [9].

 116   Ibid.

 117   Ibid, [18] – [25].