| [2020] FWCFB 4785 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
United Firefighters’ Union of Australia
v
Airservices Australia
(C2020/4749)
VICE PRESIDENT CATANZARITI |
SYDNEY, 22 SEPTEMBER 2020 |
Appeal against decision [2020] FWC 2740 of Deputy President Kovacic at Canberra on 29 May 2020 in matter number C2019/5997.
Introduction
[1] The Appellant, the United Firefighters’ Union of Australia (UFU), applies for permission to appeal and if granted, it appeals a decision 1 of the late Deputy President Kovacic in which the Deputy President decided that an application by the UFU under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021 (Agreement) did not concern a dispute “about a matter arising” under the Agreement. Apart from employees for whom the Agreement makes provision, the Agreement also covers the UFU and Airservices Australia (Airservices) which is a body corporate established under s.7 of the Air Services Act 1995 (Cth). It is the Respondent to the appeal.
[2] Airservices provides a range of services to the aviation industry, including telecommunications, aeronautical data, navigation services, air traffic and terminal control and aviation rescue fire-fighting. It is the last-mentioned service with which the Agreement is concerned.
[3] The Full Bench has now heard the parties on permission to appeal and the substantive appeal. The matter was determined on the papers.
The Decision
[4] The Deputy President described the dispute as concerning “whether Airservices . . . can appoint persons who do not hold an Advanced Diploma in Public Safety (Fire Fighting Management) (Advanced Diploma) to the position of Local Operations Manager”. 2 For the purposes of dealing with the UFU’s application, the Deputy President formulated two questions as follows:
“[6] . . .
1. Whether the dispute was “about a matter arising” under the Agreement as required by clause 20.1 of the Agreement in circumstances where LOMs are not covered by the Agreement?
and
2. If the answer to the above question is yes, does clause 82 of the Agreement require an employee to hold an Advanced Diploma in order to be promoted to the position of LOM?” 3
[5] The Deputy President noted at [7] of the Decision that “the UFU stated that it would frame the second question differently, i.e. does clause 82 of the Agreement require the employees who are covered by it to have qualifications in order to move beyond their current position”. It seems implicit from [39] of the Decision that the Deputy President did not accept the reframing of the second question, although he did not ultimately answer the second question given his answer of the first. Although it is not strictly necessary to decide, we considered the way in which the UFU had framed the question more accurately reflects the issue in dispute.
[6] The Deputy President sets out various provisions of the Agreement at [9] of the Decision. At [10]-[17] of the Decision the Deputy President summarises the case advanced by the UFU and at [18]-[29] he summarises Airservices’ case.
[7] The Deputy President begins his consideration with a review of some of the authorities dealing with the principles of construction of enterprise agreements at [30]-[32]. The Deputy President next considers the context and purpose of clause 82 of the Agreement, which was the provision central to the controversy and he notes:
“[32] . . .
• it was not disputed that LOMs are not covered by the Agreement;
• while the term LOMs appears in several provisions in the Agreement, i.e. clause 21 of the Agreement which deals with hours of work, clause 37.3 of the Agreement which deals with overtime meal allowance and clause 83.7 which concerns work level descriptors, clause 82 of the Agreement makes no reference whatsoever to LOMs;
• clause 82 of the Agreement appears in that section of the Agreement dealing with classifications and rates of pay;
• clause 82.1 summarises in tabular form the requirements for progression through the classifications covered by the Agreement, i.e. Recruit through to Fire Commander, setting out the required qualifications and service requirements for each classification level up to Fire Commander;
• clauses 82.2 to 82.6 provide further details regarding the basis on which employees move from one classification to the next;
• clause 82.7 does not mandate an Advanced Diploma as a pre-requisite for movement beyond the Fire Commander classification but rather provides that on “successful completion of all competency units employees will be qualified for promotion to positions above Fire Commander”;
• clause 82.8 refers to “the required public safety training qualifications and competencies” (underlining added);
• clause 83.7 makes no mention of the qualifications and skills required by a Fire Commander but rather provides a very broad outline of the duties/responsibilities which a Fire Commander may be required to undertake;
• clause 83.7 provides that a Fire Commander may be responsible as the LOM at category 5 fire stations;
• clause 8.1 of the Agreement provides guidance as to the legislative context within which the Agreement operates – clause 8.1 provides as follows:
“8.1 The parties to this Agreement recognise that Airservices is obliged to continuously provide safe and efficient airport firefighting services in accordance with the provisions of the Air Services Act 1995 (Cth) and Civil Aviation Act 1998 (Cth) and …”;
• the CASRs are made under that Civil Aviation Safety Act 1988 referred to in clause 8.1 of the Agreement;
• paragraph 139.773 of the CASRs requires that an officer in charge of an aerodrome categorised as Category 6 or above hold an Advanced Diploma; and
• the Respondent is exempted from this requirement until the end of 31 May 2020 as a result of the exemption made by the Civil Aviation Safety Authority on 6 June 2017.” 4
[8] At [33] of the Decision the Deputy President concludes that “clause 82 only sets out what is required in the way of qualifications and service for progression through those classifications covered by the Agreement, i.e. Recruit through to Fire Commander”.
[9] Continuing, the Deputy President reasons:
“[36] The UFU’s interpretation of clause 82.7 is not supported by clause 83.7 of the Agreement. Specifically, clause 83.7 provides that a Fire Commander may be responsible as the LOM at category 5 fire stations yet makes no mention of the Fire Commander holding an Advanced Diploma. Further, the UFU’s interpretation requires clause 82.7 to be read such that it provides “to be eligible for promotion to positions above Fire Commander an employee must hold an Advanced Diploma”. This effectively entails a rewriting of the provision which is inconsistent with principle 2 in Berri.
[37] As previously mentioned, clause 82 does not mandate the qualifications required for appointment as a LOM. Rather, based on the material before the Commission, it appears that it is the CASRs which indirectly mandate the qualifications required for appointment as a LOM. While the CASRs and MOS both use the term “officer in charge of ARFFS operations for an aerodrome”, Ms Prothero’s evidence that LOMs are the most senior position at each airport at which the Respondent provided aviation rescue firefighting services supports a conclusion that the officer in charge is a LOM. Accordingly, the exemption to paragraph 139.773(1)(a) of the CASRs made by the Civil Aviation Safety Authority on 6 June 2017 means that until the exemption is repealed at the end of 31 May 2020 an “officer in charge of ARFFS operations for an aerodrome” is not required to hold an Advanced Diploma. Significantly, that exemption was made over 12 months prior to the Agreement commencing operation on 7 December 2018. The exemption is therefore an important part of the legislative context under which the Agreement was made and in which it operates.
[38] Having regard to the above analysis, I am satisfied that the Agreement has a plain meaning. Further, the analysis does not support a finding that a dispute about the qualifications required to be appointed to the position of LOM is a dispute about a matter arising under the Agreement.” 5
[10] Consequently, the Deputy President concluded it was not necessary to determine the second question and he answered the first question as follows:
“[39] . . .
No in circumstances where the Agreement does not mandate the qualifications required for appointment to the position of LOM.
. . .” 6
Appeal ground and summary of contentions
[11] The sole ground of appeal raised by the UFU in its notice of appeal contends the Deputy President erred in concluding that the dispute notified to the Commission was not one about a matter arising under the Agreement.
[12] The Deputy President’s conclusion turned on his construction of the Agreement, which the UFU contends was erroneous.
[13] The UFU’s contention may be shortly stated. The UFU contends that in respect of each of the required training qualifications and competencies, clause 82 of the Agreement sets out a scheme the effect of which is that the competencies are required for progression (or promotion). It contends that a failure to achieve those competencies precludes an employee from being able to progress or be promoted. It contends that the employees upon whom the clause operates are employees who are within the classifications set out in sub-clause 82.1 (reflective of those set out in clause 87.2), namely Recruit through to Fire Commander levels. It is those employees who get promoted or progress. It is their promotion and progression to which the Agreement is directed.
[14] The essence of the UFU’s contention is that clause 82 of the Agreement is to be read as a scheme, operating on those employed under the Agreement to the effect that it sets out qualifications and experience necessary for those employees to gain promotion, progression and consequentially greater responsibility and authority. This includes promotion to positions for which the Agreement does not provide, relevantly in this case, the position of Local Operations Manager.
[15] Airservices contends to the contrary. It says that no error on the part of the Deputy President is disclosed and says that both a textual and contextual reading of the Agreement shows the UFU’s construction of the Agreement is incorrect. Relevantly, Airservices contends:
➣ The Agreement covers employees in seven position classifications, from “Recruit” to “Fire Commander” and does not cover any employee who is a Local Operations Manager nor does it provide for that position or classification;
➣ Clause 82.1 provides that progression through the classifications is dependent on achieving the required qualifications “in accordance with” those listed in the specified table. None of these pertain to a Local Operations Manager or an Advanced Diploma qualification;
➣ As to clause 82.7, the UFU contends that only upon completion of an Advanced Diploma will employees be qualified for promotion above Fire Commander, however the word only does not appear in the clause and seeking to construe the clause to that effect places an impermissible gloss on the section;
➣ As to the UFU’s contention that clause 82.8 provides that failure to achieve the required qualifications precludes progression, including to the Local Operations Manager classification, clause 82.8 directs attention to the required qualifications in clause 82.1, namely those listed in accordance with the table in that clause. That table contains no reference to Local Operations Manager or an Advanced Diploma qualification;
➣ Contextual matters supporting Airservices’ construction it says include the following:
◦ external applicants (those not covered by the Agreement) appointed to a position of Local Operations Manager are not required to hold an Advanced Diploma qualification;
◦ the evidence before the Deputy President of past practices showed that Fire Commanders frequently acted as Local Operations Managers for leave/absence relief or call-out contingencies and would necessarily have encompassed Fire Commanders acting on higher duties without an Advanced Diploma qualification;
◦ the legislative context indicates that any requirement for an Advanced Diploma qualification resides in Civil Aviation Safety Authority requirements, which do not refer to Local Operations Managers at all, instead referring to a functional role described as Officer in Charge;
◦ prior to making the Agreement, Airservices was granted a Civil Aviation Safety Authority exemption to qualification requirements.
Consideration
[16] Although both parties made submissions about the proper construction and effect of clause 82 of the Agreement, the only decision the Deputy President made was that he did not have jurisdiction to deal with the application. As we have already mentioned, the sole ground of appeal contends that the Deputy President erroneously concluded that the dispute notified to the Commission was not one about a matter arising under the Agreement. In those circumstances we do not propose to express our opinion on the proper construction and effect of the impugned provisions, save for touching upon them as is necessary to deal with the only issue raised by this appeal.
[17] The approach of a Full Bench to the determination of an appeal depends on the nature of the decision against which the appeal is brought. The Commission’s power to deal with a dispute in accordance with a dispute settlement term of an enterprise agreement depends upon that which the term permits or empowers the Commission to do. The dispute settlement term of the Agreement does not empower the Commission to settle by arbitration every employment related dispute. The power conferred by the term is confined to a dispute which relevantly, is about a matter arising under the Agreement. 7 This is not an appeal from a discretionary decision. The Deputy President determined that he did not have jurisdiction to deal with the dispute.8 That conclusion was informed by the Deputy President’s finding that the dispute was not about a matter arising under the Agreement. The finding turned on the Deputy President’s construction of certain provisions of the Agreement. The Deputy President was either correct in his conclusion as to jurisdiction or he was not. For the reasons which follow, we consider he was not correct.
[18] Although, as we earlier noted, the Deputy President described the dispute as one concerning whether Airservices can appoint persons who do not hold an Advanced Diploma in Public Safety (Fire Fighting Management) (Advanced Diploma) to the position of Local Operations Manager, 9 we think this is overly broad. When the description of the dispute as set out in answer to question 2.1 of the application10 is examined as a whole, we consider that the dispute was confined to whether an employee covered by the Agreement who does not hold an Advanced Diploma could be appointed to the position of Local Operations Manager. Any doubt that this was the delimit of the dispute is assuaged by the UFU’s submission below. The UFU contended, inter alia, that:
“The Agreement covers those persons described in clause 4. Clearly enough the Agreement cannot cover or control persons outside of the list set out in clause 4. The fact that external recruits may be dealt with differently is a different issue but not relevant to the interpretation of clause 82.” 11
[19] In essence the proposition that was being advanced by the UFU was that on a proper construction of clause 82 of the Agreement, an employee covered by the Agreement could not be appointed, relevantly, to the position of Local Operations Manager, without first obtaining the requisite qualification and competencies to which reference is made in clauses 82.7 and 82.8. The UFU was not contending that these qualifications and competencies are a precondition imposed by the Agreement on appointment to the position of Local Operations Manager of a person who is not an employee covered by the Agreement.
[20] In order to determine whether the dispute was about a matter arising under the Agreement, the Deputy President had to consider the terms of the Agreement. The proper approach to the construction of an enterprise agreement was not in dispute before the Deputy President, nor on appeal. The construction of an enterprise agreement or of a provision thereof, much like construing a statute, begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an enterprise agreement is made and operates is also relevant. Thus, the language of an enterprise agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. 12
[21] Putting to one side the dispute settlement term, clause 69 of the Agreement deals with recruitment and selection and sets out an obligation that Airservices make recruitment and promotion decisions based only on merit and relative efficiency. It provides:
“69. Recruitment and selection
69.1 Airservices will make recruitment and promotion decisions based only on merit and relative efficiency. This means fair and open competition involving consideration of the best available field of candidates taking account of the advantages of developing and progressing Airservices’ employees. Permanent vacancies will be filled as soon as practicable, and where possible, no greater than 12 months from when the vacancy arises.
69.2 Airservices will comply with its obligations under anti-discrimination legislation.
69.3 Employees may be transferred to any position at level for the purposes of operational efficiency, development, for equal opportunity reasons, in the event of being potentially surplus, as a result of a selection exercise or in accordance with transfer arrangements (see clause 30).”
[22] Clause 82 of the Agreement contains provisions concerning progression through classifications and provides:
“82. Progression
82.1 Progression through the classifications is dependent on achieving the required qualifications and meeting the minimum time-based criteria in accordance with the following table
Note: Based on an employee’s qualifications and experience, and subject to the employee’s suitability, Airservices may place an employee on an accelerated career progression. Any change to the progression requirement time frames set out in the table above will be determined by Airservices and will be subject to the agreement of the employee.
82.2 On recruitment, employees will commence recruit training. Continued employment is dependent on successful completion of the Certificate II in Public Safety (Fire Fighting and Emergency Operations). Upon successful completion of all competency units (or direct entry assessment) the employee will progress to AFF1.
82.3 As an AFF1, employees will be assigned a fire station and dayshift duties until sufficient location specific competency units have been achieved to partake in an operational position. The employee will continue studies toward the Certificate III in Public Safety (Fire Fighting and Emergency Operations). Upon a minimum of 1 2 months of service at AFF1 level and the successful completion of all location specific competency units (and relevant PSTP Units), employees will progress to AFF2.
82.4 As an AFF2, employees will continue studies toward the Certificate III in Public Safety (Fire Fighting and Emergency Operations). Upon a minimum of 12 months of service at AFF2 and successful completion of all Certificate III units, employees will progress to LAFF.
82.5 After 12 months service as a LAFF, an employee may be selected by Airservices to undertake the Certificate IV in Public Safety (Fire Fighting Supervision). Airservices will select employees based on merit, including an assessment of operational skills and knowledge. After successful completion of the Certificate IV in Public Safety (Fire Fighting Supervision), and at least three years as an LAFF, the employee will progress to the classification of Sub Station Officer.
82.6 On successful completion of a Diploma in Public Safety (Fire Fighting Management), employees will be qualified for promotion to SO, subject to position availability. Appointments will be on the basis of merit in accordance with clause 69 of this Agreement. SSOs will also receive ongoing coaching and development to facilitate progression towards being deemed suitable to perform second in command functions as part of an operational crew.
82.7 Subject to suitability, SOs and FCs will be encouraged to continue studies toward an Advanced Diploma in Public Safety (Fire Fighting Management). On successful completion of all competency units, employees will be qualified for promotion to the positions above FC. Appointments will be on the basis of merit in accordance with clause 69 of this Agreement.
82.8 Failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met.
82.9 A reduction in classification may only occur after a performance and disciplinary process has been undertaken in accordance with clause 72 of this Agreement.”
[23] Clause 83 of the Agreement contains some classification or work level descriptors. It provides:
“83. Work level descriptors
83.1 Employees at all classifications will carry out the functions and other duties ancillary to their role within the limit of their competencies, skills and experience to assist in improving the overall effectiveness of the team and fire station they are working at.
83.2 AFF1s will complete all location specific competencies (including any related Certificate III module requirements) appropriate to the fire station they work at. AFF1s will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.3 AFF2s will have completed all location specific competencies appropriate to the fire station and will continue Certificate III studies through to completion. AFF2s will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.4 LAFFs will hold the qualification of Certificate III in Public Safety (Fire Fighting and Emergency Operations) and will carry out all the functions associated with those competencies and training received. LAFFs will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.5 SSOs will hold the qualification of Certificate IV in Public Safety (Fire Fighting and Emergency Operations) incorporating supervisory units and will carry out all the functions associated with those competencies and training received. SSOs will form part of a team and as a team member use their skills to assist in improving the overall effectiveness of the team and fire station.
83.6 SOs will take charge of a team or portion of a team of fire fighters and as a first line supervisor be responsible for the operational effectiveness and administrative functioning of the team. SOs will carry out the functions associated with the competencies they hold and have been trained for, including those of FC if requested. SOs will use their skills to develop all team members and improve the overall effectiveness of the team and fire station.
83.7 FCs will take charge of a team of fire fighters and as a supervisor be responsible for the operational effectiveness and administrative functioning of the team. At category 5 fire stations, FCs may be responsible as the local operations manager. FCs will provide managerial, administrative and operational support to the local operations manager.”
[24] Salaries payable to employees under the Agreement for each aforementioned classification are contained in clause 87 of the Agreement.
[25] It is uncontroversial that none of these provisions have any application to a person who is not an employee covered by the Agreement. It is also uncontroversial that the Agreement does not provide for the position or classification of Local Operations Manager. Central to the Deputy President’s finding as to jurisdiction was his conclusion that clause 82 does not mandate the qualifications required for appointment as a Local Operations Manager. 13 This is also clear from the way in which the Deputy President answered the first question:
“No in circumstances where the Agreement does not mandate the qualifications required for appointment to the position of LOM.” 14
[26] This was an erroneous approach to have taken to the question requiring determination. The question whether the dispute is about a matter arising under the Agreement is not to be determined by reference to the qualifications required for appointment to the position of Local Operations Manager. It is to be determined by properly identifying the subject matter of the dispute and asking whether the subject matter of the dispute is about a matter arising under the Agreement. In this case the subject matter of the dispute was whether an employee covered by the Agreement was required to hold certain qualifications as a condition of being promoted to the position of Local Operations Manager. This is reflected in the second question which the Deputy President found unnecessary to answer given his answer to the first. The dispute is essentially one of competing constructions of the Agreement and the effect of the competing constructions upon the capacity of employees covered by the Agreement to be promoted to the position of Local Operations Manager.
[27] Clause 82 of the Agreement makes provision for a structured progression from one rank to another. Employees progress through the classifications:
• at the lower levels (Recruit to Sub-Station Officer) through a combination of required qualifications and service-related criteria; and
• to higher levels (Station Officer to Fire Commander) through a combination of required qualifications, availability of position and a merit-based selection process.
[28] As clauses 82.2 – 82.5 of the Agreement make clear, progression from Recruit to each classification up to and including Sub-Station Officer is automatic once the required qualifications and service-related criteria for progression are met.
[29] A hard progression barrier for progression to levels beyond Sub-Station Officer exists. There is a qualification requirement (Diploma in Public Safety (Fire Fighting Management)), a position at a higher classification level (Station Officer or Fire Commander) must be available and appointments will be on the basis of merit in accordance with clause 69 of the Agreement. 15
[30] Clause 82 of the Agreement also deals with promotion to positions above Fire Commander, which includes promotion to the position of Local Operations Manager. Clause 82.7 provides that subject to suitability, Station Officers or Fire Commanders:
“… will be encouraged to continue studies toward an Advanced Diploma in Public Safety (Fire Fighting Management). On successful completion of all competency units, employees will be qualified for promotion to the positions above FC. Appointments will be on the basis of merit in accordance with clause 69 of this Agreement.”
[31] The Agreement plainly establishes a regimented and highly prescriptive scheme of eligibility for progression and promotion which applies to employees covered by the Agreement. It sets out formal qualification and experience criteria, and it provides employees the protection of the assurance in clause 69 of the Agreement that Airservices will make recruitment and promotion decisions based only on merit and relative efficiency levels. The terms of clause 82 inform those decisions. There is nothing inherently wrong in an agreement also regulating the terms on which employees, while covered by the Agreement, might be eligible or qualified for promotion to a position which is not covered by the Agreement. The purpose of the provisions is to establish a scheme for promotion and progression (based on a mix of qualifications, experience and merit appointment as applicable) of employees covered by the Agreement through the classification structure of the Agreement.
[32] Airservices contends that on the plain and ordinary meaning of clause 82.7, Fire Commanders and Station Officers, on completing an Advanced Diploma, possess an academic certification which establishes that they are “qualified for promotion” to a position above the Fire Commander classification, in the sense that they are fit or prepared to perform such a role. It contends there is nothing on the face of the clause to indicate that achievement of an Advanced Diploma is the only method by which a Fire Commander or Station Officer may establish that he or she is eligible for promotion, or that it is not possible for Airservices to be satisfied that a person without an Advanced Diploma is fit for appointment to a Local Operations Manager role. It says that the UFU’s contended construction requires clause 82.7 to be read as though the word “only” appeared in it. It says this argument was advanced below and correctly rejected.
[33] There is both textual and contextual support for the construction of the Agreement for which the UFU contends. For example, the emphasised words in clause 82.7 above, are in terms the same as those appearing in clause 82.6 which provides:
“On successful completion of a Diploma in Public Safety (Fire Fighting Management), employees will be qualified for promotion to SO…”
[34] Consequently, they might be presumed to have the same meaning and effect.
[35] The words “will be qualified” in both clauses 82.6 and 82.7 might suggest that a person without the qualification will not be qualified.
[36] That this might be so finds some support in clause 82.8 which provides:
“Failure to achieve the required public safety training qualifications and competencies will result in the deferral or curtailment of progression until met.”
[37] Clause 82.1 provides that the “Qualification required” for appointment to Station Officer is a Diploma in Public Safety (Fire Fighting Management). The words “will be qualified”, in clause 82.6 are capable of being construed as meaning that the employee will possess the qualification required, the condition precedent, to promotion to the position of Station Officer.
[38] All of this merely serves to illustrate that the parties are in dispute about whether the Agreement imposes any qualification preconditions on employees covered by the Agreement being promoted to a Local Operations Manager role, even though that role is not covered by the Agreement. As a corollary, there is a dispute about whether the Agreement proscribes the appointment by Airservices of an employee covered by the Agreement to a Local Operations Manager role without first holding qualifications mentioned in clause 82.7 of the Agreement. This is quintessentially a dispute about a matter arising under the Agreement.
[39] It is unnecessary to deal with the various arguments raised on appeal about the proper construction and effect of the impugned terms of the Agreement because the answer to the second question before the Deputy President does not arise in the appeal. The Deputy President did not answer it, and erred in not doing so, but that was because of the answer given to the first question. That answer was erroneous.
[40] For the reasons stated, the dispute is in our view plainly about a matter arising under the Agreement. The Deputy President had jurisdiction to deal with the dispute and he was wrong to conclude otherwise.
[41] Although the dispute is confined to the parties and does not have any broader application, the Deputy President wrongly refused to exercise jurisdiction to deal with the dispute in accordance with the dispute settlement term in the Agreement. There would thus be an injustice visited upon the UFU if permission to appeal were not granted, and for that reason we grant the UFU permission to appeal. For the reasons stated we uphold the appeal and the decision will be quashed.
[42] On a rehearing we would, for the reasons stated, answer the first question as follows:
Q. Whether the dispute was “about a matter arising” under the Agreement as required by clause 20.1 of the Agreement in circumstances where LOMs are not covered by the Agreement?
A. Yes
Order
[43] We order as follows:
1. Permission to appeal is granted;
2. The appeal is upheld;
3. The decision in United Firefighters’ Union of Australia v Airservices Australia [2020] FWC 2740 is quashed;
4. On a rehearing the answer to the first question is yes;
5. The dispute the subject of the Application in C2019/5997 is remitted to Deputy President Dean.
VICE PRESIDENT
Final written submissions:
Appellant, 17 August 2020
Respondent, 26 August 2020
Printed by authority of the Commonwealth Government Printer
<PR722574>
1 United Firefighters’ Union of Australia v Airservices Australia [2020] FWC 2740
2 Ibid at [2]
3 Ibid at [6]
4 Ibid at [32]
5 Ibid at [36]-[38]
6 Ibid at [39]
7 Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021, clause 20
8 [2020] FWC 2740 at [40]
9 United Firefighters’ Union of Australia v Airservices Australia [2020] FWC 2740 at [2]
10 Appeal Book at pp 56-57
11 Appeal Book at pp 131-132 [15]
12 See WorkPac Pty Ltd v Skene [2018] FCAFC 131, at [197] and the authorities referred to therein
13 [2020] FWC 2740 at [37]
14 Ibid at [39]
15 Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018-2021, clauses 82.1 and 82.6