Ferguson & Ors v Chief Executive, Attorney General's Department [2026] SAET 2

South Australian Employment CourtFerguson & Ors v Chief Executive, Attorney General's Department [2026] SAET 2 | Case summary | Zoe

[7]

Applications by multiple Firefighters and Station Officers employed by the South Australian Metropolitan Fire Service relating to award entitlement to travel allowances for service at the Port Pirie Fire Station - applications for interpretation of an award pursuant to s 8 of the Fair Work Act 1994 ('FW Act'), orders for payment of amounts pursuant to an award pursuant to s 9 of the FW Act, orders to remedy or restrain contraventions of an award pursuant to s 12 of the FW Act, and for declarations of right pursuant to s 26A of the South Australian Employment Tribunal Act 2014 ('SAET Act') - hearing proceeded with evidence from representative applicants - three groups of applicants - newly recruited Firefighters, promoted Station Officers and Station Officers whose allowance was ceased on their submission of a Station Preference form nominating Port Pirie as first preference station - whether a common intention of the drafters and parties to the award can be ascertained from historical evidence - whether travel allowance payable to Firefighters employed on condition of first serving at Port Pirie and initially posted there - whether travel allowance payable if not initially posted to Port Pirie - whether Angle Park Training Centre a station from which applicants were transferred within the meaning of the award transfer provisions - whether travel allowance payable on promotion where new position is at a different work location - whether travel allowance payable upon transfer at own request - whether acceptance of condition required by employer is own request by employee for purposes of award entitlement - whether travel allowance validly ceased by operation of Station Preference System - whether agreement between SAMFS and UFU to vary shift system of operation as allowed by the award varies award definition of shift cycle - how minimum entitlement to be determined where shift cycle definition does not include Port Pirie shift system of operation - whether SAET has the power to extend time for money claims to a date before 1 July 2017 - whether s 48 of Limitations of Actions Act applies to money claims pursuant to s 9 of the FW Act - whether Full Bench decisions in conflict and if so whether either is binding - whether power to extend time granted to SAET by s 61 of SAET Act should be exercised to extend time limited for money claims by s 31 of the FW Act - HELD - historical anomalies have persisted in relevant awards despite evidence of longstanding agreements between the SAMFS and the UFU to alternative arrangements - HELD - continuance of agreements outside awards rather than varying awards to reflect agreements not explained by evidence - HELD - common intention in relation to now disputed clauses not apparent from historical evidence - award to be interpreted according to established principles - HELD - entitlement to travel allowance commences from the time and place of initial operational posting - HELD - Angle Park Training Centre not an initial operational posting for newly appointed Firefighters - HELD - where initial posting not to Port Pirie, travel allowances payable on subsequent transfer - condition of employment contract cannot override award entitlements - HELD - promotion not excluded from meaning of transfer in the Award - HELD - Award specific that travel allowance for work at Port Pirie ceases only when employee is transferred to another station or nominates Port Pirie as place of residence - HELD - Station Preference system cannot override or derogate from Award entitlements - HELD - Definition of shift cycle in award not modified by agreement between the SAMFS and the UFU about shift system of operation - HELD - agreement between SAMFS and UFU on the shift system of operation for Port Pirie included agreement on criteria for payment of travel allowances - HELD -agreement not enforceable as an Award entitlement as not by order of the SAET - HELD - minimum payment for travel on transfer to Port Pirie to be determined by interpreting Award in context of varied system of operation HELD ‑‑‑‑- purpose of allowance primary consideration - HELD - purpose of travel allowance to compensate for additional expense of travel for duty - HELD - milage allowance payable per journey to and from 24 hour period of duty of consecutive day and night shifts - HELD - meal allowance payable for 5 meals per each 24 hour continuous period of duty - HELD - Full Court authorities not in conflict - Sanchez applicable - HELD - doctrine of stare decisis applies - decision of Full Court in Sanchez binding - not for court of first instance to decide appeal court decision per incuriam - HELD - legislative amendment repealing s 167 of FW Act operative 1 July 2017 affected substantial rights and obligations and thus has prospective operation only - HELD - SAET had no power to extend time for money claims before 1 July 2017 - no retrospective grant of power by repeal of s 167 of FW Act HELD - per Sanchez s 48 of Limitations of Actions Act does not apply to money claims pursuant to s 9 of FW Act - HELD - power to extend time granted by s 61 of SAET Act and SAET Rule 8 is discretionary to be decided in the interests of justice - HELD - delay by applicants in filing claims once aware of possible grounds not explained - HELD - on balance, interests of justice do not require extensions of time.

[30]

In each case the respondent is the Chief Executive, Attorney General's Department ('CE, AGD'). This is by virtue of s 4A of the FW Act which defines the employer for public employees to be the person declared as such by regulation and Fair Work Regulation 4 which contains that declaration.
However, the applicants are all officers or firefighters of the SAMFS appointed and managed by the SAMFS Chief Officer pursuant to ss 27 and 29 of the Fire and Emergency Services Act 2005 ('FES Act'). Where I refer to the respondent, I am referring to the CE, AGD. I will refer to the SAMFS where that identity is relevant.
In the pre-trial phase of proceedings, the respondent and the applicants sensibly agreed to proceed to hearing initially on the disputed issues, by reference to the claims of a representative group of the applicants, and if any consequential issues of quantum arise, to then separately determine those for each applicant.
For convenience I will refer to these representative applicants simply as the applicants, as distinct from the whole group which, if necessary, I will refer to as the cohort of applicants.
The applicants include several who are claiming for travel allowance payments which they claim were payable to them more than six years prior to the date of the filing of their applications, raising the additional issue of extensions of time for those money claims.
By consent I accepted the tender of evidence in the form of trial books which included court documents, affidavits of evidence from witnesses and agreed documents. These were marked P1, P2, P3, P4, P5 and P6. Witness affidavits were allocated exhibit numbers which matched their document number in the trial books. All witnesses gave oral evidence.
Witnesses for the applicants were the seven representative applicants themselves and Dennis Taylor, an SAMFS firefighter who was not an applicant. There were three witnesses called for the respondent. They were SAMFS Assistant Chief Fire Officer ('ACFO') Glen Benham, ACFO Peter Button, and Shona Somerville, SAMFS Manager Employee Relations.

[31]

The SAMFS is a public sector agency and one of three emergency services established by the FES Act, within the South Australian Fire and Emergency Services Commission ('the Commission').[2]
The FES Act defines the powers, roles and responsibilities of each of the three emergency services organisations and their relationship to the Commission.
Prior to the creation of the Commission by the FES Act, the SAMFS was a statutory corporation pursuant to the South Australian Metropolitan Fire Service Act 1936, and before 1982 was known as the South Australian Fire Brigade ('SAFB').[3]
In the course of the evidence it became apparent that much of the terminology, customs and practices of the SAFB have continued in the SAMFS and inform the context for this dispute.
Gaining appointment as a full-time firefighter in the SAMFS is a highly competitive process. Typically, in an open recruitment process, there are around two thousand applicants from which the SAMFS shortlists about 100 applicants for more intensive assessment. This assessment process is rigorous, involving a two stage physical aptitude test, personality profiling and firefighter ability tests, a medical examination, interviews and referee checks. From these assessments the SAMFS creates an order of merit from which it offers employment to the top ranking candidates in order of merit. A typical recruit intake is 18.[4] Employment is offered to them on conditions which include the successful completion of the 14 week full time recruit training course and a six month probation period.[5]
The cost of each of these training courses is upwards of one million dollars. This is in addition to the cost of each recruitment process up to the commencement of the recruit course.[6] The SAMFS has Registered Training Organisation status and provides ongoing training through a Staff Development Framework for which the SAMFS maintains a dedicated training facility, the Angle Park Training Centre, delivering training which includes nationally accredited vocational training.[7]
Consequently, it is reasonable to assume that the successful applicants are highly invested in completing the training and maintaining their employment in the SAMFS, and that the SAMFS is also highly invested in retaining the firefighting staff that it selects and trains.
I make this observation because it helps to understand the active relationship that has historically existed between the management of the SAMFS (and before it the SAFB) and the UFU.
Consultation has been via formal processes such as the Single Bargaining Centre which has an independent chair and includes representatives of SAMFS management and the UFU. The industrial instruments which apply to SAMFS employment have been negotiated between the SAMFS and the UFU, which are parties to them, and which include consultation and dispute resolution provisions. There are also bilateral issue-based communications between the SAMFS management and the UFU outside of these formal consultation processes, of which there is evidence in these proceedings.
The industrial instruments that cover SAMFS employment prescribe the minimum entitlements of its employees and have the force of law. They exist by orders of this Tribunal, which is charged with ensuring that they comply with the requirements of the FW Act, both in terms of content and procedure.[8]
The Award which is the subject of these proceedings is such an instrument.
Over time, the SAMFS has adopted administrative procedures, customs and practices by agreement with the UFU, outside of those prescribed in the industrial instruments, but which provide context for interpreting those instruments.
As noted by White J in Tempo Services:[9]

[33]

There are a number of such customs and agreements which bear on the interpretative task which these proceedings require.
One such administrative procedure which has been in place in the SAMFS, from before the time the industrial instruments referred to in these proceedings were drafted, is the Station Preference System.
The SAMFS maintains a register of the first, second and third preferences nominated by each firefighter and officer of the stations at which they wish to work. This nomination is communicated on a Station Preference form and may be updated at any time. Upon a vacancy occurring at a station, the preference system is checked and the person with the earliest lodgement date for that station will be transferred to that vacancy. Second and third preferences are considered if there is no-one with a first preference for that station. If there is no-one with a current preference for that station, the SAMFS will first check if anyone wants to change their preference to go to that station. If there is no-one, the SAMFS will direct a transfer by compulsion, which it terms a secondment.[10]
There are also agreements which are allowed for in industrial instruments by way of specific provisions, generally known as facilitative provisions, that allow for departure by agreement from a standard provision.
The second major agreement between the SAMFS and the UFU which is relevant to this dispute, is a long standing one which is currently allowed for by such a provision. It is how shifts are rostered and worked at the Port Pirie Fire Station.
The relevant awards prescribe the hours of duty for operational staff, including the duration and sequence of shifts and days off duty between shifts. This duration and sequence is and has been an award provision since 1989,[11] being two consecutive 10 hour day shifts followed by two consecutive 14 hour night shifts, followed by four days off duty.
The shift arrangement in place for the Port Pirie Fire Station is and historically has been different from that prescribed in the relevant awards. The Port Pirie arrangement is a shift roster whereby operational staff are rostered to work a continuous period of 24 hours from 8am to 8am the following day, comprised of a 10 hour day shift 8am to 6pm followed immediately by a 14 hour night shift 6pm to 8am, then three days off duty.
I note that there are no industrial awards of the SAET that include a shift pattern of 24 hours continuous duty.[12] From the evidence before me, there is not and has not historically been an award clause limiting the number of continuous hours that operational staff of the SAMFS may work. That limit would fall within the SAMFS obligations pursuant to the Work Health and Safety Act 2012 (SA) and its predecessor legislation.
For a practical understanding of the context of the current dispute, I summarise the evidence before me as to how the duties in these shifts are generally worked.
As an emergency response station, there may be a call out at any time. Nevertheless there is, in each 24 hour period of duty, a schedule of other activities which the operational employees perform.
At 8am there would be a crew meeting for the incoming shift, following which the equipment and appliances would be checked and any maintenance carried out or arranged. There would then be a rostered training or some other activities such as equipment and station maintenance, refuelling the appliances and administration. The afternoon would normally include gym and physical training time. There are breaks for lunch and dinner. After dinner is recreation time, except for Tuesday evenings which is spent providing training for part time retained firefighters, then sleep from around 10pm to 6am before having breakfast and preparing the handover for the incoming shift at 8am. Callouts would vary from none to twelve or sometimes more in a 24 hour period. Station Officer Gavin Day estimated an average of two to four call outs per 24 hour shift, with two of those being at night.[13]
This current practice closely aligns with duties as described in the 1971 Award which divided each shift into periods of "active duty" and periods of "standby duty". Standby was defined as "standby unless called on for essential work pertaining to firefighting". The 6pm to 8am night shift in that award had standby duty from 8pm to 7am.[14]
The Port Pirie Fire Station is staffed continuously, by rotating four shifts of two Sation Officers and four firefighters each. Including provision for relief staff and the annual leave roster, there are around 30 operational staff assigned to that station. While some firefighters and station officers assigned to the Port Pirie Fire Station live locally, most do not.
Those who travel generally drive up on the morning of the shift start, and drive home again the following day after the shift ends. With travel time between Adelaide and Port Pirie by car generally around two and half hours, this adds around five hours to the 24 hours of the shift. A five hour return commute every four days is for many a practical alternative to relocating their residence, whereas such a commute for each shift of a two days on followed by two nights on cycle would be impractical.
The absence of any description of the Port Pirie shift arrangement in the awards brings particular challenges when it comes to interpreting clauses that assume or explicitly refer to the prescribed shift arrangement. I have used the term shift arrangement at this stage of my reasons because the terms used in the Award are in dispute.
The status and consequences of the Port Pirie shift arrangement as a variation by agreement from a standard provision, is now in focus as the scope of that agreement and the meaning of terms of the Award that apply to that agreement have fallen into dispute between the SAMFS and the UFU.

[85]

By their applications, the cohort of applicants seek to change what have been long-standing practices of the SAMFS in relation to the payment of travel allowances to station officers and firefighters working at the Port Pirie Fire Station. By its response in relation to the interpretation of shift cycle as it relates Port Pirie travel allowances, so does the SAMFS.
This history was given in evidence by witnesses for both the applicants and the respondent and included in documents tendered by consent.
The SAMFS operates fire stations in the Adelaide metropolitan area and in regional locations throughout South Australia.
The operational workforce has full time career firefighters and part time on-call firefighters called Retained Firefighters. Fire stations in the Adelaide metropolitan area are staffed by full time firefighters. The Fire Stations in Port Pirie and Mount Gambier are staffed by a combination of Firefighters and Retained Firefighters. Other regional stations such as Whyalla and Kapunda are staffed by Retained Firefighters only.
Port Pirie Fire Station is the only one outside the Adelaide metropolitan area that is fully staffed 24 hours of every day. Mount Gambier is staffed by full time operational staff during the day, with evening emergency response provided by its Retained Firefighter workforce.
Historically, SAMFS, and before it the SAFB,[26] has had difficulty attracting operational staff who either live locally or are prepared to relocate to live locally to work at the Port Pirie Fire Station. Historically and currently, a significant proportion of employees working at the Port Pirie Fire Station live at some distance from Port Pirie, with most commuting from the Adelaide metropolitan area.
In consultation with the UFU, a number of different strategies and incentives have been implemented by the SAMFS to maintain the staffing level required to keep the Station operational. One of these is the way in which the shift work rosters operate.
The Adelaide metropolitan and Port Pirie Fire Stations all operate with four teams, called shifts and designated either A, B, C or D. These shifts have both Station Officers and Firefighters allocated to them. A, B, C and D shifts work on a roster which covers the station 24 hours a day. There are also officers who are designated relievers, and there is a leave roster which ensures coverage during periods of annual and other scheduled leave.
All of these teams work on a roster system of a combination of 10 hour day shifts and 14 hour night shifts.
Consistently with cl 16.1.1(b) the Adelaide metropolitan station rosters rotate the four teams through a shift roster of two consecutive day shifts of 8am to 6pm (10 hours) followed by two consecutive night shifts of 6pm to 8am (14 hours) followed by four days off.
The Port Pirie Fire Station roster rotates the four teams through a 24 hour period of duty of 8am to 8am the following day, being a 10 hour day shift followed immediately by a 14 hour night shift, followed by three days off.[27]
Mount Gambier Fire Station is not staffed on a 24 hour basis and its shift arrangement is also different from that worked in the Adelaide metropolitan area. That station is staffed by full time firefighters working a roster of four consecutive 12 hour day shifts.[28]
The Port Pirie and Mount Gambier shift arrangements do not appear in the Award.

[86]

How the term shift cycle is to be interpreted had not been in dispute between the SAMFS and the UFU prior to these proceedings, at least not since 1997. The history of the term shift cycle is also relevant to how the specific Port Pirie travel allowance clauses entered the awards and how the payment practices of the SAMFS emerged. This background gives context to the current disputed claims and for that reason I will refer to it in some detail.
ACFO Benham in his affidavit gave evidence of the history of shift work in the SAMFS, and previously the SAFB. In his living memory metropolitan firefighters and officers worked one 24 hour shift followed by two days off, as A, B or C shift.
The Firefighters and Watchroom Operations Award 1971 cl 9 Hours of Work referred to day shift of 10 hours and night shift of 14 hours, but not to their sequence. That was left to the employer by the words "A roster of shifts shall be compiled by the employer and exhibited on the notice boards at Headquarters Station and all out-stations in the metropolitan area. A separate roster shall be compiled by the employer for Port Pirie and Gawler stations and shall be exhibited on the notice board at those stations."
In around 1975, a fourth shift was added and the shift pattern changed to 24 hours on and three days off. Later this changed to what was known as the Canadian roster, where Firefighters worked two 10 hour day shifts, two days off, two 14 hour night shifts, two days off, before moving to the current metropolitan shift pattern of two 10 hour day shifts followed by two 14 hour night shifts followed by four days off. These shift sequences were not defined in the awards at the time, leaving the rosters to be compiled by the employer.
The Fire Brigade Officers Award 1979 ('1979 Award') introduced a definition of "tour of duty" which was "a tour of duty shall mean four consecutive shifts (i.e., two day shifts and two night shifts)". Travel allowance specific to Port Pirie appeared at cl 7A(e) in relation to transfers and cl 7C(b)(i) in relation to relieving. It specified payment per "tour of duty (4 shifts)" of $28.60 for meals and $61.40 for travel if suitable accommodation was provided, and an additional $36.40 for accommodation if it was not provided.[29]
Through subsequent variations to the 1979 Award, these two references were unchanged, other than the dollar amount of the allowances, until it was replaced by the Firefighters (South Australia) Award 1985 ('1985 Award'). The definition of tour of duty remained unchanged. The travel allowances for Port Pirie were changed to a partially familiar form at cl 7(e) in relation to transfers, except for the references to the provision of accommodation:

[99]

While the 1989 Award had prescribed the shift roster of two day shifts followed by two night shifts, an administrative rule limiting hours of work to no more than 24 continuous hours had not until then been applied to Port Pirie, where the 48 hour shift pattern was still being worked by agreement with the UFU.
In a letter from the UFU to the SAMFS Chief Officer dated 31 May 1995, Mr Caica confirmed that the UFU had supported the decision of the SAMFS that Port Pirie staff not work more than a 24 hour shift.[31] It specifically raised a consequence for one of its members, who was then seeking a transfer back to Adelaide because the change meant that the cost to him of travel between Adelaide and Port Pirie to attend for duty had doubled, and that he would be recalled for additional shifts at Port Pirie more often. The UFU sought a meeting to discuss compensation for staff incurring additional travel costs associated with the change.
It appears there were then some negotiations, with the UFU writing again on 29 June 1995.[32] In this letter there was a reference to an agreement by the SAMFS to pay one of the UFU members $60 for each time he was required to report for duty to Port Pirie, to "compensate him for the costs involved with travel as well as ensuring that he remains at Port Pirie for a period of time". It also raised further issues affecting more members including the submission of Station Preference forms, compensation for travel and the process and timing of transfers. It ended with "It is the UFU's strong suggestion that arrangements be made by the SAMFS to meet with the Union so as to resolve these and other issues relating to our Port Pirie membership".
A meeting occurred on 12 July 1995, confirmed in a further letter from the UFU to Mr Bentley, Acting Senior Fire Commander ('Acting SFC'), dated 14 July 1995. This letter referred to a proposal to introduce Retained Firefighters to the Port Pirie Fire Station, reducing full time staff, and relevantly "With respect to the introduction of the 10/14 hour roster, we understand that the SAMFS will only consider departure from the current 24 hour roster worked in Port Pirie should such a departure contribute to improved efficiency in Port Pirie firefighting operations."[33]
On 31 July 1995 a letter from Acting SFC Bentley to the UFU[34] referred to a number of industrial matters to do with Port Pirie Fire Station staffing. Relevant to the history of the issues in these proceedings was a paragraph referring to the payment of travel allowances. It said in relation to three officers:

[103]

It was the 1993 Award which was operative at the time of the negotiations between the SAMFS and the UFU in 1995 as they dealt with the consequences of changing the Port Pirie shift arrangement from 48 hours on followed by six days off duty, which involved one return trip from Adelaide and met the tour of duty definition of four shifts, entitling them to eleven meals and 448 km travel allowance per return trip, to one where applying that definition strictly to the Port Pirie transfer clause meant that the travel allowances accrued only once every two return trips.
The letter from Paul Caica of the UFU to SAMFS on July 1995 following these changes confirms that, notwithstanding the special arrangements made for some affected employees and the halving of the allowances for others, the UFU and SAMFS at that time agreed that this was what the 1993 Award provided through its definition of tour of duty applied to the Port Pirie transfer clause.
There was then correspondence backwards and forwards two years later in 1997, between the SAMFS and the UFU Secretary at that time, Mick Doyle, specifically addressing issues arising for Port Pirie employees from the previously agreed interpretation of the travel allowance provisions in the 1993 Award.
I take the trouble to track this history, because the very same issue is being put before this Court now, more than 25 years later, in relation to the interpretation of shift cycle and the travel allowance payable. I also note it because it reflects a change of view by the UFU and the SAMFS between 1995 and 1997 as to what was appropriate recompense for operational employees travelling for duty at Port Pirie.
The series of letters backwards and forwards in 1997 dealt with the UFU concern that applying the tour of duty definition to the Port Pirie travel allowance clause unfairly paid its members for only half of the travel required from Adelaide to Port Pirie and back for each duty. It acknowledged that the provision of allowance for eleven meals was also not reflective of the 24 hours on three days off shift arrangement.
The UFU proposed amending the 1993 Award. The SAMFS proposed deferring discussion on amending the award to a later time, but offered an interim solution as follows, by letter from SAMFS CEO J Derbyshire to M Doyle UFU Secretary 19 June 1997:

[115]

Despite this travel allowance agreement being reflected in Service Directive 24/97, the 24 hours on three days off shift pattern for Port Pirie being maintained, and the mooted discussion on amending the award, there was no evidence before me of any relevant variation to the award before the award simplification process which stretched through 1998 - 2002.
In the transcript of the hearing on 22 July 1999 in the Australian Industrial Relations Commission ('AIRC') of the application to approve the significantly amended and reorganised draft as a new award, the issues in relation to Port Pirie shifts and travel were not mentioned, nor were the subtle changes in relation to those matters explained in the drafts or table of changes which accompanied it.
The AIRC approved by consent the 2002 Award which came into effect on 8 October 2002.
Clause 3.13 of the 2002 Award replaced the 1993 definition of tour of duty (i.e. "four (4) consecutive shifts (i.e. two (2) day shifts and two (2) night shifts)") with "Shift cycle means the two day shifts followed by the two night shifts worked by Officers, Firefighters and Communications Staff".
Although apparently subtle, this change actually clarified the sequence of the shifts as "the two day shifts followed by two night shifts, worked by" officers and firefighters.
The shift cycle clause at cl 16(a) of the 1993 Award became the Shift cycle clause at 16.1.1 of the 2002 Award, unchanged except for removing the word "only" and changing the name Corporation to SAMFS in the variation clause, now cl 16.1.1(c).
Consequently, it must be inferred that there was agreement between the SAMFS and the UFU not to include the Port Pirie 24 hour shift roster or its associated travel entitlements in the 2002 Award. The lack of evidence about the content of their further discussions means it is not possible to draw any conclusion about why it was agreed between them to leave it out. But there is enough to conclude that neither proposed to the AIRC a clause upon which they did not agree, and upon which it had the power to arbitrate. The Award was confirmed by consent. This kept the Port Pirie shift roster as a variation from the standard award provision as an agreement between themselves.
The transfer clause in the 2002 Award was cl 15.5.4(a) and it replaced cl 22(a) of the 1993 Award. Although there was obviously some attention paid to this clause given the changes that were made, there was no evidence before me about why the drafters made the changes they did, or relevantly why the agreement in the Service Directive 24/97 was not incorporated in those changes.
Clause 15.5.4(a)(i) replaced "tour of duty" with shift cycle in relation to the period below which a transfer was to be considered relieving. This did not change the effect of that clause.
Curiously, in cl 15.5.4(a)(iii), the general transfer clause, shift cycle replaced "shift" in the 1993 Award, so that where the 1993 Award provided for the mileage allowance to be paid "twice on one shift, for the duration of the period of the transfer", the 2002 Award now provided for that payment to be made "twice in each shift cycle". This reduced the payment for a return trip from once per shift to once per shift cycle. As this clause applied to transfers within the metropolitan area, this change reduced the allowance payable for transfers to or between metropolitan stations to one quarter of that payable under the 1993 Award. That is, applying the shift cycle definition of two days followed by two nights on duty, the general travel allowance became payable for only one of four return trips required for attending shifts at a metropolitan station. There is no clue as to why this change was made to the general transfer clause.
The changes in 2002 also included removing the words "the prescribed payment herein shall not be payable if the transfer has been made at the request of the employee" from the then general transfer clause and adding it into the specific "own request" clause in wording identical to the 2007 Award.
Up until the 2002 Award, a transfer at the request of the employee precluded any payment of travel allowance pursuant to the general transfer clause. In those earlier awards, transfer to a station of first preference under the Station Preference System would have qualified as a transfer at own request and meant that no travel allowance was payable pursuant to the general transfer clause. The Port Pirie transfer clause was qualified by the same "own request" preclusion as now.
By removing the own request complete preclusion from the general transfer clause, the 2002 Award standardised the own request preclusion to all transfers and limited it to own request transfers after less than two years of service at the prior location.
The 2002 Award also removed any reference to an accommodation allowance payable on a transfer.
Clause 15.5.4(a)(iv) replaced "tour of duty" with "shift cycle" but otherwise the allowances for eleven meals and 448 kilometres per shift cycle, and the definition of shift cycle in cl 3.14_,_ were retained and have persisted through all variations of the Award up to the current day.
There was no witness evidence on why the terms of the agreement reflected in the 1997 Service Directive were not included in any Award created or varied since then. The documentary evidence in relation to the 2002 Award process and Award variations since then do not refer to it either.
The gap in the documentary evidence before the Court on the agreement between the SAMFS and the UFU about the shifts to be worked at Port Pirie and the travel allowance payable for them extended from the 1997 correspondence and Service Directive through to January 2019.
In relation to the transfer of four Station Officers to Port Pirie Fire Station, SAMFS Chief Officer M Morgan wrote on 22 January 2019 to the Secretary of the UFU, Max Adlam, as follows:

[126]

I summarise the agreed position as follows:

At the conclusion of the selection process an order of merit for potential recruits is established.

The SAMFS will identify the number of positions required at Port Pirie station.

Metropolitan area positions will be offered to the potential recruits in order of merit.

Offers of employment will continue to be made in descending order of merit until such time as all metropolitan area vacancies are filled.

The next candidate on the order of merit will then be offered employment at Port Pirie station only.

Offers of employment at Port Pirie station only will continue to be made until such time as all Port Pirie vacancies are filled.

Candidates who were not offered metropolitan area employment and who subsequently refused (sic) an offer of employment at Port Pirie will not be offered any employment irrespective of their position on the order of merit.

Any candidate who is offered employment in the metropolitan area can be employed at Port Pirie station at their own request.

Candidates who accept an offer of employment at Port Pirie station must go to Port Pirie station and will be employed on the basis that they are prepared to work at Port Pirie station. Should they refuse to be posted to Port Pirie station at the completion of their training they will not be offered ongoing employment.

Candidates residing in the Adelaide metropolitan area who are transferred to Port Pirie station must remain at that station for a minimum of one year and until such time as the SAMFS conduct another recruiting process or an employee from the metropolitan area requests to be transferred to Port Pirie.

Candidates who accept an offer of employment at Port Pirie station, but who continue to reside in the Adelaide metropolitan area will not be entitled to ongoing travelling allowances.

Candidates who accept an offer of employment at Port Pirie station and decide to reside in the Port Pirie area will be entitled to removal expenses as set out in the Firefighting Industry Employees Award 1993 provided that they agree to remain at Port Pirie for a minimum of two years.

I trust the above accurately reflects the agreed position and I look forward to your written response.

[127]

Although the letter invited a written response, there was no evidence before me of one being provided. However, I accept that the lack of any correction or challenge signifies agreement by the UFU to its content.
Although it referred to the entitlement to removal expenses as per 1993 Award, it was the 2002 Award which was by then in operation. Moreover, the entitlement to removal expenses for Port Pirie recruits had by then been included in the 2002 EA.
This was then how the SAMFS conducted its recruitment for new Firefighters including those for the Port Pirie Fire Station.
Subsequent to the 2003 Letter, the SAMFS wrote to the new secretary of the UFU, P Harrison, on 11 December 2003 informing him that two recruits in the Recruit Squad commencing in January 2004 had been employed on the basis that they were to serve a minimum of 12 months at the Port Pirie Fire Station. [40]
In April 2005 the SAMFS issued a Recruitment Information Document - Fulltime Firefighter Positions. This comprehensive document included under the heading The Shift System, a description of the two days on/two nights on/four days off system in the metropolitan area, and "The shift cycle for Port Pirie is different to that of the metropolitan area. Again there are four shifts but a 24 HOUR shift (commencing at 0800) is worked, followed by 3 days off." Under OTHER CONDITIONS OF EMPLOYEMENT (sic) it said "Applicants must be prepared to work at any SAMFS station as directed." Under Miscellaneous Questions was "Will I be posted to Port Pirie if I do not wish to be?" and the somewhat cryptic answer "It is possible that if you are made an offer it may be for Port Pirie."[41]
The 2005 recruitment process selected eighteen new recruits. The recruitment committee recommendation to the Chief Officer dated 12 August 2005 which was approved the same day said "It has been identified that two positions will need to be filled at Port Pirie. Using the process as agreed with the UFU, candidates seventeen and eighteen (as identified with an asterisk) will be offered positions in Port Pirie".[42]
Following the order of merit process referred to in the 2003 letter, the applicants who ranked seventeen and eighteen were offered employment on the condition that they serve twelve months in Port Pirie. One of these was the applicant John Sexton, who accepted the offer and is now claiming travel allowance for his first year working in Port Pirie.
Recruitment continued to feature in the subsequent enterprise agreements. Notwithstanding the agreement set out in the 2003 Letter, and the confirmation that the two recruits starting in January 2004 and October 2004 were required to stay at Port Pirie for only one year, the two year requirement in the 2002 EA (Cth) continued in the same terms in the 2005 EA (Cth) and in the 2005 EA (SA) and 2009 EA (SA).
The SAMFS issued Full-time Firefighter Recruitment Procedures on 7 December 2007 which referred at paragraph 15 to selecting recruits for posting to Port Pirie thus:

[129]

The reference to the 2002 Award appears to be in error as the 2007 Award commenced operation on 1 April 2007, and the entitlement to removal expenses was by then contained in the 2005 EA.
In 2010 there was further communication between the SAMFS and the UFU regarding recruitment to Port Pirie and also Mount Gambier, which had moved from being staffed entirely by Retained Firefighters to a combination of full time operational employees and Retained Firefighters.
In a letter to Greg Northcott, then Secretary of the UFU dated 16 June 2010, G Lupton, Chief Officer of the SAMFS, referred to the agreement reached between the SAMFS and the UFU at the Single Bargaining Centre meeting on 10 April 2003 "which formalised a position on staff recruited to fill vacancies at Port Pirie" and requested that it also include the same principles for Mount Gambier.[44]
This SAMFS letter then set out the same terms as the 2003 Letter except for including Mount Gambier on an equal footing with Port Pirie and reinstating the minimum two year period, notwithstanding that the 2003 Letter had recorded agreement for a minimum of one year. It closed by looking forward to the UFU written response and inviting any contact for any further information or clarification.
The SAMFS then wrote again to the UFU on 11 August 2010 referring to the agreement to utilise the reverse order of merit for appointment of recruits to Mount Gambier and Port Pirie and informing the UFU of the names of one recruit to be stationed at Mount Gambier and three at Port Pirie following completion of a recruit course commencing 17 September 2010.[45]
The UFU then wrote to the SAMFS on 12 August 2010 saying that it endorsed the position of the SAMFS in the 16 June 2010 letter but for the paragraph which referred to the minimum two year placement period.[46]
This UFU letter was referred to in witness evidence and in submissions as the 2010 Letter and I will also.
The one year minimum requirement set out in the 2003 Letter and confirmed by the UFU in the 2010 letter seemed to be abandoned by both the SAMFS and the UFU shortly thereafter, when the 2011 EA was approved. In that EA, cl 28.11.5 provided that "Graduates from a recruit course will be posted to Port Pirie for a minimum of five years, at which time they may elect to stay at Port Pirie or request a transfer to the metropolitan area". And at cl 28.11.6 "Graduates from a recruit course posted to Port Pirie for the five year period will not receive removal expenses".
This extended the minimum period for recruits assigned to Port Pirie from the one year in the 2003 and 2010 letters, and the two years in the earlier EAs, to five years and also expressly removed the entitlement to relocation expenses if moving residence to that town.
This five year minimum period has been maintained in the 2014, 2017 and 2022 Enterprise Agreements.
In 2014, the SAMFS decided to conduct an internal recruitment call specifically for the Mount Gambier and Port Pirie Fire Stations, with the aim of attracting applications from Retained Firefighters already residing close to those locations.
The UFU had a representative on the SAMFS Recruitment Committee. Minutes of a meeting on 9 September 2014 recorded an attendance by Greg Northcott, then Secretary of the UFU. This meeting considered the SAMFS proposal to conduct a separate recruitment process open only to Retained Firefighters, shortly prior to the usual open call recruitment process. The minutes did not refer to the issue of payment of travel allowances.[47]
This approach was confirmed by letter from CO Lupton to the UFU on 28 October 2014 and Memorandum 77/2014 issued on 10 November 2014. It included as a note: "No claims for expenses (including relocation expenses) or time will be considered by the MFS".
Consistent with the agreed position of the SAMFS and the UFU expressed in the 2003 Letter, the 2010 Letter and the EAs, the Firefighter applicants in all recruitment intakes from 2003 onwards were all offered and accepted employment on condition that they work at Port Pirie Fire Station on completion of their recruit training.
I note in this history that different terms have been used to refer to the same event of a recruit commencing their duties at Port Pirie. The word used in the EAs is post or posted, the word used in some internal SAMFS documents is posted and in others appointed, transfer or transferred. This usage does not determine the meaning of the word transfer in the travel allowance clauses of the Award.

[130]

The documented history in evidence of how Station Officers have been located at Port Pirie is not as extensive as that for the Recruit Firefighters, especially in relation to consultation and agreement with the UFU.
Station Officer positions are promotional positions that must be filled internally, from within the ranks of existing eligible operational staff.
The documentary history in evidence commences with the inclusion in the 2009 EA of Service Administrative Procedure No 40, entitled Promotion Procedures and including in the heading this descriptor "This is a directive of the Chief Officer." This copy dated 30 July 2010.[48]
What can be understood from this is that while the document had the status of a directive of the Chief Officer, it was also a procedure agreed by the UFU and endorsed by a vote of affected staff at that time of approval of the EA.
While it makes no specific mention of promotions to Port Pirie, it was this procedure by which a promotion process for Station Officer positions at Mount Gambier and Port Pirie was conducted in 2010.
Before 2010, where there was insufficient locally based Station Officers, the SAMFS had been directing Station Officers to work at Port Pirie, by secondment. Those secondments attracted payment of travel allowance where the seconded officer chose not to relocate their residence to Port Pirie.[49] The term secondment does not appear in the Award, but does appear in the enterprise agreements.
ACFO Button gave evidence that in 2010, the SAMFS decided to approach the Station Officer process differently, as a means of attracting Station Officers to work at Port Pirie and Mount Gambier without the SAMFS having to direct by secondment.[50]
It determined to include in the Station Officer applications process a nomination by the applicant as to where they were willing to work - metropolitan, Mount Gambier or Port Pirie. These were advertised on 9 August 2010 by way of Memorandum No 40/2010 issued by G Lupton, Chief Officer of the SAMFS.[51]
This memorandum described the process as having three separate orders of merit - one each for metropolitan, Mount Gambier and Port Pirie. Positions at those locations were then to be offered according to each order of merit.
The incentive which the SAMFS intended from this process was that with fewer applicants expected to nominate for the regional stations, those who did were likely to achieve promotion to Station Officer earlier than if they were in the same order of merit as the more numerous applicants for metropolitan positions.[52]
The memorandum contained nothing about the appointments being for a specified term at the regional locations, or any other difference in the appointments to be offered on each of the orders of merit.
In particular, there was no reference to eligibility for travel allowance, relocation expenses, or that appointment to one of the regional stations would count as day work. These were referenced separately.
The further incentive added for the first time in this selection process, was that time served at Mount Gambier or Port Pirie would count towards the officer's obligation to perform two years of day work.
Day work was and is a requirement of Station Officers to spend two years fulfilling roles in the SAMFS that are necessary for the Service to operate but are worked Monday to Friday from 8.30am to 5pm. In that duty, they do not have the flexibility that shift work offers, nor the opportunity to earn more from recall shifts. As such, day work was not generally considered attractive.[53]
Issued in relation to this 2010 call for applicants for the Station Officer promotions was a Frequently Asked Questions document, which relevantly included the following statements:

[132]

Although this FAQ did not reference the Award, it sets out the position taken by the SAMFS that an "appointment" to a position is not a transfer under the Award.
Although there was a Single Bargaining Centre operating which had been operating for some years, with representation by the UFU, the only minutes provided in evidence around this time were for a meeting on 22 June 2010 (but misdated 22 July 2010), before the Memorandum was issued, in which the only reference to regional staffing was in relation to travel allowance for one firefighter, followed by the comment "the future of Port Pirie recruits is being discussed by the MFS and UFU." There was no evidence presented to me, either by witnesses or documents, about whether the station officer recruitment process was discussed at the SBC around the time the 2010 promotion process was conducted.
As a result of this process, four officers were promoted to Station Officer positions and located at Port Pirie, each for a four year term. They were not paid travel allowance. Their time in Port Pirie was counted as day work. The applicant Gavin Day was one of these appointments.
The next relevant selection process for Station Officer positions was in 2014, at which time the SAMFS returned to its previous practice of a single order of merit with no option to indicate willingness for metropolitan or regional appointment.
Through this selection process, six applicants were offered Mount Gambier or Port Pirie only, each for a four year term, to count as day work, with no travel allowance other than first and last shifts to transport personal protective equipment up and back. The applicant Matthew Dawes and four others were appointed to Port Pirie.[55]
Around the time these five were due to complete their terms, the SAMFS complement of Station Officers was complete, with no promotion process required, but still a need for five station officers to go to Port Pirie to replace the earlier five appointees who were transferring back to Adelaide.
On this occasion, now in 2018, the SAMFS advertised for currently serving Station Officers to be appointed to Port Pirie, initially for a four year term with the offer of that term counting as day work.[56] There were no takers. SAMFS then amended the invitation to be for a two year term only, which initially attracted five applicants, one of whom quickly withdrew. This left four Station Officers having expressed interest in working at Port Pirie, for four vacancies.[57]
The applicant Brenton Ward was one of these Station Officers. It was at this point that the interested applicants sought confirmation from the SAMFS about the conditions of these appointments including that the term at Port Pirie was for two years, the Port Pirie travel allowance clause of the Award applied, and that it would also count as day work.

[139]

To avoid confusion in these reasons, I simply point out that the reference to Clause 15.5.4 of the Award appears to be in error. That was the numbering in the 2002 Award. Travel allowances appear in Cl 15.5.3(a) in the 2007 Award.
On 10 October 2019 the UFU wrote that the issue remained in dispute and requesting a meeting under cl 9.1.3 of the 2007 Award and proposing 15 or 16 October 2019.[67]
CO Morgan replied on 17 October that those dates were unable to be accommodated but he would arrange contact from his office to organise a suitable date.[68]
The matter was then referred by the UFU to the Single Bargaining Centre, whose Chair provided a determination on 13 December 2019, noting that the role of the chair was confined, inter alia, to offering "advice and counsel in relation to industrial matters".[69]
On 15 January 2020 the UFU Secretary wrote to CO Morgan referring to the SBC Chair's determination and asking if SAMFS would accept and implement the recommendations.[70]
On 22 January 2020 CO Morgan replied that as the SBC Chair's recommendations were not consistent with the advice SAMFS had received from DTF-IRAP, it had referred the SBC recommendations to DTF-IRAP "to determine the necessary steps to resolve this matter".[71]
On 29 January 2020 the UFU wrote again asking for the SAMFS position as a matter of priority, noting that the UFU State Council was due to meet on 13 February 2020 and would be considering the matter.[72]
The first of the applications in these proceedings were then filed on 28 May 2020 by the UFU on behalf of seven Station Officer applicants: Robert Ferguson, Brenton Barr, Gavin Day, Joseph Beshara, Matthew Dawes, Shane Finney and Simon Stapleton.
On 7 August 2020, the UFU sent a communication to members, Wordback No. 29/2020, advising its members that UFU had commenced proceedings in the SAET in relation to back pay of travel allowance for Station Officer members who had worked at Port Pirie, advising its view that Firefighters and Senior Firefighters may also be entitled to travel allowance for shift cycles worked on transfer to Port Pirie and suggesting they make a claim, noting the six year time limit for money claims to the SAET.[73]
The further applications which are a part of these proceedings were then filed progressively over the remainder of 2020 with a further one filed by Mr Ward in 2022. These include the claims by the Recruit Firefighters as well as Station Officers.

[152]

It said if he accepted the offer he was to report to the MFS Angle Park Training Centre at 0800 hours on Monday 28 July 2008.
In a variation to the conditions offered to Mr Sexton, his letter informed him that the Port Pirie posting will be for a period of two years and that he was entitled to removal/relocation expenses as per the Firefighting Industry Employees Award 2002.
I note that the operative Award at that time was the 2007 Award, not the 2002 Award, and that relocation expenses were covered by cl 14.9.6 of the 2005 EA, which was not referred to in the letter.
Mr Abrams accepted the offer, signing on 30 June 2008 that he understood and accepted "the conditions of employment offered for Port Pirie".[86]
Mr Abrams commenced his training at the Angle Park Training Centre on 28 July 2008. He and his family had moved to Adelaide from Sydney the week before, staying initially with his wife's parents in Redwood Park before moving to their own home in Ridgehaven in April or May 2009.
He recalls that during the recruit course, Greg Northcott, then secretary of the UFU, attended and spoke to the recruits about the UFU. In a break Mr Abrams had a brief conversation with Mr Northcott in which he asked him about payment for Port Pirie travel and was told by Mr Northcott that recruits were not paid an allowance for Port Pirie travel, but did not explain why.
On 8 October 2008 Mr Abrams completed a Station Preference form nominating his preferences as Paradise, Prospect, and Beulah Park in that order.
On 21 October 2008 he received a Notice of Transfer advising him that his transfer was directed subject to the successful completion of the recruit training program from Recruit Firefighter at Learning and Development to Firefighter at Port Pirie D shift commencing 3 November 2008.
Early in 2010 Mr Abrams arranged a swap with another firefighter who lived on Yorke Peninsula, who wanted to try out working at Port Pirie to see if it suited him, for six months.
Shift swaps arranged by officers amongst themselves needed approval and were on the condition that no travel allowances were paid to either officer in relation to the swapped shifts. The approval for the swap was confirmed by a Notice of Temporary Transfer dated 5 February 2010 that recorded Mr Abram's transfer from Port Pirie D shift to Gawler D shift for the period 22 March 2010 to 28 August 2010.[87]
Apart from this period working at Gawler Fire Station, Mr Abrams worked at Port Pirie until he was transferred to Adelaide, finishing his last shift at Port Pirie on 1 November 2010 before taking 3 days leave and starting at Adelaide Fire Station on B shift on 5 November 2010. He did not relocate to Port Pirie, but travelled up and back for each 24 hour shift.
Again, these essential facts were not in dispute. While Mr Abrams was cross examined it was not extensive and his affidavit evidence was not disturbed.
In oral evidence he reiterated that he had not wanted to go to Port Pirie but agreed he had accepted the position on the condition that he go there for two years following which he would transfer back to Adelaide.
He said that posting to the Port Pirie station was considered by the recruits in his course as the "booby prize" as it was a less attractive option than posting to a metropolitan station. This was for two reasons, the first being the time and expense of travel for which there was no allowance being paid, and second that the Port Pirie station was less busy than the metropolitan stations and so offered less experience to support their development in the early part of their career.[88]
While he considered it unfair that some officers who worked at Port Pirie got paid travel and the recruits did not, he believed what he had been told by Greg Northcott at the recruit course, that he was not entitled to it. He just accepted that was how it was and focussed on doing the job and getting back to Adelaide after the two year term was up.[89]
Consequently, he did not raise any query about possible travel allowance with either the SAMFS or the UFU until after he read the UFU Wordback newsletter of 10 August 2020. He then put in a claim to SAMFS for the travel and meal allowance on 20 August 2020.[90]
As he maintained his residence in Adelaide, he is claiming for the Port Pirie travel allowance at cl 15.5.3(a)(iv) of the Award.
Mr Abrams' claim is the most straightforward, in that he was posted to Port Pirie following his recruit training for a two year period and was not paid travel allowance for the Port Pirie shifts that he worked during that period, before being transferred to Gawler on completion of that term. The questions then arise whether he was entitled to the Port Pirie travel allowance from his first shift there after completing his recruit training and, if so, whether time should be extended for his money claim.

[159]

In the same document were similar transfer details for two firefighters in relation to Mount Gambier - one going there and one returning to Adelaide, and three others in relation to Port Pirie - one other going there and two returning to Adelaide.
Mr French then worked at Port Pirie until his transfer back to Adelaide in July 2017. During that time he lived initially at Kensington Park but then moved with his family to Goolwa South in February 2015.
He travelled between his home and the Port Pirie Fire Station for each shift that he worked there.
During his time at Port Pirie, he engaged in a number of shift swaps with other firefighters where they would work his Port Pirie shift and he would work their shift at their station.
Mr French first considered the question of whether he might be eligible for travel allowance for his Port Pirie travel by way of a phone call from another firefighter, Paul Rugala, who told him of contact with the UFU about that possibility. Mr French then submitted his claim for travel allowance to the SAMFS on 3 August 2020.[96]
None of this evidence was challenged in cross examination. However, Mr French did give further detail on his conversation with Mandy Chartier at the recruit course, that his concern was not being able to submit a station preference form, because he had not expected that he would be excluded from that process. He did not recall raising any issue with her about eligibility for travel allowances.
In relation to his initial posting to Adelaide Fire Station, he confirmed that he was not given any other option. He understood that the reason why he was posted initially to Adelaide Fire Station was that the SAMFS wanted to wait until other firefighters already posted to Port Pirie finished their terms and a vacancy came up.[97]
He recalled that on occasions he would carpool with other officers travelling up to Port Pirie for the same shift.
He recalled having discussions with other officers at Port Pirie about the cost of travel to work there, but did not read or refer to the Award, or raise the issue with anyone from the SAMFS or the UFU until his phone call from Paul Rugala in July 2020.[98]
I had no cause to doubt any of Mr French's evidence and accept it without qualification.
The particular feature of Mr French's circumstances is that he was not initially posted to Port Pirie following completion of his recruit course. His first posting was to Adelaide Fire Station. The SAMFS argued that if he was transferred from Adelaide to Port Pirie pursuant to cl 15.5.3(a), it was at his own request as he had accepted the offer of employment on condition that he be posted to Port Pirie, and as he had not served two years at Adelade he was not entitled to travel allowance by the exclusion in cl 15.5.3(a)(vii).

[160]

Mr Bentley filed his application on 18 September 2020 claiming for travel allowance payments from 22 December 2015 to 18 December 2020. His monetary claim is therefore wholly within time.
Mr Bentley provided three affidavits dated 5 July 2022, 13 February 2023 and 24 March 2023, which were admitted into evidence. He also gave oral evidence.
At the time Mr Bentley applied for a position as a full time firefighter, he was already a Retained Firefighter in the SAMFS, a role that he had held since 2 April 2023.
In that role, he had been stationed at Kapunda Fire Station, which operated entirely with Retained Firefighters. Retained Firefighters are part time employees of the SAMFS, but with different conditions to full time firefighters. He was required to attend two weekends of training initially, then an evening training session each week, and to respond to call outs as required. For this he was paid an annual retainer, and for his time in training and call outs. He estimated that he attended on average about 20 call outs per year in this role.
He was one of two teams of Retained Firefighters on a call out roster at Kapunda Fire Station.
It is a requirement of Retained Firefighters that they respond within 10 minutes of a call out, so most live close to the Fire Station to enable their response within that time. Mr Bentley lived at Freeling. He was otherwise employed at a workplace in Gawler.
In 2015, the SAMFS advertised internally for Retained Firefighters to apply specifically for regional full time Firefighter positions - that is for Port Pirie and Mount Gambier. This process was not open for application from the public. At the same time, there was a general public recruitment process for full time firefighters. Mr Bentley applied for both.
He was offered a position at Port Pirie, which he accepted without hearing about the outcome for the general selection process. That is, he did not wait to find out where he ranked in that other process. His evidence was that he would have preferred to be stationed in the Adelaide metropolitan area as it is closer to his home at Freeling and he did not want to relocate. He would not have accepted a position at Mount Gambier.[99]
The SAMFS did not promote the Retained Firefighters into full time positions. Mr Bentley was required to resign from that position in order to accept the full time Firefighter position. None of his prior training or service was recognised when he commenced as a Firefighter.[100]
His letter of offer of employment as a recruit Firefighter was dated 11 August 2015 and subject to conditions. In relation to his appointment to Port Pirie, it said:

[164]

Having accepted the offer, Mr Bentley commenced as a recruit firefighter at the Angle Park Training Centre on 14 September 2015. His recruit course included recruits from the regional selection process and the general selection process.
Towards the end of the Recruit Course he was asked for his preferred stations, which he nominated as Elizabeth, Salisbury and Gawler in that order, as they were closer to his home than the Port Pirie Station.
Towards the end of the Recruit Course, he received a Notice of Transfer dated 16 December 2015 confirming his commencement as a Firefighter on A shift at Port Pirie at 0800 hours on 22 December 2015.
Whilst stationed at Port Pirie, Mr Bentley engaged in numerous shift swaps with firefighters at other stations. He attached six Notice of Temporary Transfer forms approving these swaps between January 2019 and October 2020, for periods ranging from two weeks to over two months. However, he was not sure if this represented all of his shift swaps.
For somewhere between six and nine months of the time he was working at Port Pirie, Mr Bentley shared travel expenses by carpooling with another firefighter on his shift who lived at Clare. He would drive from Freeling to Clare, and then he and the other firefighter would drive to Port Pirie and back together, going turn about in each other's cars. On the trips where they took the other firefighter's car, Mr Bentley would leave his car at the other Firefighter's house at Clare.
Mr Bentley abandoned this arrangement as the trip from Freeling via Clare with his colleague added about 25 minutes each way to the trip, which was about one hour and forty minutes if going direct to Port Pirie by another route.
Apart from these shift swaps, Mr Bentley remained stationed at Port Pirie until his transfer to Elizabeth D shift, finishing at Port Pirie on 18 December and commencing Elizabeth on 22 December 2020.
Mr Bentley was paid travel allowance for his first and last shifts at Port Pirie, for the purpose of transporting his personal protective equipment there and back.
As he was not resident in the Adelaide metropolitan area at the time of his appointment as a firefighter, Mr Bentley is claiming travel allowance pursuant to the general travel allowance cl 15.5.3(a)(iii).
In cross examination Mr Bentley expanded a little on his training and role as a Retained Firefighter prior to his appointment as a Firefighter, basically confirming that the role of a Retained Firefighter is to respond to call outs as required, and in that process they perform the same firefighting tasks as full time firefighters.[102]
He confirmed that he understood it was a condition of the offer of employment as a Recruit Firefighter that he accept first posting to Port Pirie for a minimum of 5 years with no travel or relocation expenses paid by SAMFS and that he would have to resign from his Retained Firefighter role upon confirmation of his employment as a Firefighter.
In relation to the timing of his claim for travel allowances, he gave evidence that at his recruit course there was a presentation to the course by Max Adlam, who had by that time become Secretary of the UFU. He said that she spoke about the UFU and firefighters becoming members, but that she had not mentioned anything about the Award or travel allowances.[103]
He confirmed that the first discussions he had about the possibility of claiming for travel arose after a group of Station Officers commenced at Port Pirie Fire Station in 2019 and the other officers working there learned that they were getting paid travel allowance where the Station Officers they were replacing had not. He recalled a conversation with Max Adlam at the Gawler Fire Station while he was there on a shift swap. Initially he thought this was likely in 2020, but on reflection agreed it would have been late 2019.[104]
Mr Bentley's oral evidence provided a little more detail than in his affidavit but there was no significant challenge to that evidence.
The circumstances particular to Mr Bentley are firstly that he was already an employee of the SAMFS stationed at Kapunda, in a different role, prior to his posting to Port Pirie following the completion of his recruit training, and secondly that he was not resident in the Adelaide metropolitan area as were the other Firefighter applicants at the time of their posting.
Although his claim is that he was entitled to travel allowance because his posting to Port Pirie was a transfer from the Angle Park Training Centre, there is an alternative question of whether Mr Bentley's posting to Port Pirie was a transfer from Kapunda, where he was stationed as a Retained Firefighter.

[165]

Mr Day filed his application 28 May 2020, claiming for travel allowance payments from 7 April 2011 and 5 March 2015. Consequently, his monetary claim requires an extension of time for payments due before 28 May 2014.
Mr Day provided affidavits dated 7 July 2022 and 13 February 2023. He also gave oral evidence.
Having commenced with the SAMFS in around 2001, Mr Day applied for promotion to Station Officer by application dated 19 August 2010. At that time he was stationed at Elizabeth Fire Station where he had been working since 2008.
In the application he was required to indicate which positions he was applying "to be nominated for appointment to" with the options listed as Station Officer Regional Operations (Mount Gambier Day Work), Station Officer Regional Operations (Port Pirie Shiftwork) and Station Officer Metropolitan Operations. He indicated yes to Port Pirie and Metropolitan, and no to Mount Gambier.
During the promotion process he was given and he read the document 'Station Officer Promotion Process - Frequently Asked Questions from Information Sessions',[105] noting the statement that no travel money was to be paid for either of the regional appointments. He took this statement as true and did not think to challenge what he had been told by the SAMFS until much later.
He received a letter dated 31 January 2011 from GN Lupton, Chief Officer, notifying him that he had been "nominated for promotion to the rank of Station Officer Level 1, effective from 0800 hours on 11 February 2011" and asked him to "Please note that as part of the nomination for promotion you will be appointed to Port Pirie, to the position of Full Time Station Officer (Shift Work)."[106]
On 1 February 2011 Mr Day sent a memo to the Chief Officer asking for his commencement date at Port Pirie to be deferred as he had been accepted onto a USAR[107] logistics course running from 14 February to 4 March 2011, and was then due to take programmed recreation leave from 5 March to 6 April 2011. The course was being run at the Angle Park Training Centre.
This was approved and was documented in the following way:

[168]

The following day he received a letter from A L Chartier, Human Resource Consultant, advising that he was now to commence his leave from Port Pirie on 6 March 2011, with his first shift at Port Pirie to commence 0800 hours on 7 April 2011.[109]
The summary of this is that following his appointment as Station Officer effective 11 February 2011, he attended the Angle Park Training Centre to complete the USAR course, then went on leave before starting for the first time at Port Pirie on 7 April 2011. During this time he did not perform any shifts at Adelaide Fire Station.
His evidence was that to the best of his knowledge he last worked at Port Pirie about 5 March 2015. During his four years working there, he lived at Greenock, which is in the Barossa Valley and not in the Adelaide metropolitan area.
He estimated that he carpooled with another employee about a third of the time.
He first became aware that other Station Officers were getting paid travel allowance after the 2019 transfer of the Station Officers who were not promoted. He was included as a signatory to the 12 February 2019 email from Robert Ferguson to Shone Somerville and attaching his initial claim for travel allowance for his Port Pirie shifts.
In oral evidence Mr Day was taken to merit rankings for the 2010 Station Officer promotions and acknowledged that these showed that he was ranked 20 on the metropolitan rankings and 4 on the Port Pirie rankings.[110] He agreed that it is more competitive to get a Station Officer position at an Adelaide station than at Port Pirie.[111]
He was taken to paragraphs 11-13 of his affidavit dated 7 July 2022, where he referred to paragraph 66 of the amended application filed on behalf of himself and the other applicants. Where it said in relation to him "the Third applicant worked at Elizabeth Station from 2008 until 10 February 2011 and then at the Adelaide Station from 11 February 2011 until the transfer", Mr Day said he did not know why the amended application said this because he had not worked at the Adelaide Fire Station between leaving Elizabeth Station and starting at Port Pirie.
He also confirmed that although the SAMFS Notice of Transfer referred to him being transferred to Adelaide, he did not perform any shifts at Adelaide Fire Station. The whole of the time that the documents referred to him being at Adelaide, he was on leave or actually attending the Angle Park Training Centre. He said this time away from his operational shifts on training was referred to as "out work", and that he understood that was what all time spent in training was called.
From his point of view, he did not in any practical sense transfer to Adelaide. He worked at Elizabeth until he started his course, then went on leave until he started at Port Pirie.
In cross examination it was put to him that by applying for promotion to a position that he knew was located in Port Pirie, his transfer there was at his own request, to which he agreed. However that answer does not determine whether it was at his own request for the purposes of Award entitlements.
Mr Day reiterated in his oral evidence that he did not think to check the Award or contact the UFU about not getting travel allowance while he was working at Port Pirie because he believed what he had been told by the SAMFS - that he was not entitled to it.
He denied any communication with the UFU, either via the workplace representative or the UFU office about the issue prior to raising the issue with Robert Ferguson in 2019 after he learned that his replacement was getting paid the allowances.
He said he was not aware of any agreement between the SAMFS and the UFU about Port Pirie travel allowances.
The issues for determination are whether Mr Day was entitled to the general travel allowance for the shifts that he worked at Port Pirie, and if so whether he should be granted an extension of time for his claim for payment of those allowances due before 28 May 2014. The particular issue raised in the alternative by the respondent is whether Mr Day was transferred to Port Pirie from Elizabeth Fire Station or Adelaide Fire Station and whether the exclusion in cl 15.5.3(a)(vii) applies.

[178]

Under the words "I understand and accept the terms and conditions of the appointment outline in this letter", Mr Dawes signed on 12 January 2015.[114]
After his promotion Mr Dawes worked two shifts as a relieving Station Officer at Camden Park prior to commencing at Port Pirie.
As well as his regular 24 hours shifts, Mr Dawes worked overtime and performed recall shifts.
At the time he worked at Port Pirie, Mr Dawes lived at Hampstead Gardens which was about two and a half hours travel time each way. He estimated carpooling about half the time with other officers working the same shift.
He was transferred from Port Pirie back to Prospect Fire Station with his last rostered shift at Port Pirie being 20 January 2019.
He says that he first thought he might be entitled to allowances for his Port Pirie travel early in 2019 when he learned that the Station Officers replacing him were being paid travel allowances.
Before that, he believed that he was not entitled to them as the letter dated 30 December 2014 from the SAMFS had told him that he was not entitled to them at the same time as telling him that his conditions were as per the 2007 Award. So, he assumed he was being paid his Award entitlements.[115]
The travel claim form he submitted to the SAMFS in relation to his current claim was dated 1 April 2019.[116]
He said that at the time he was working at Port Pirie, there were eight Station Officers stationed there, only two of whom lived locally. He estimated 35 career firefighters working there, about three quarters of whom commuted there from Adelaide or other parts of the State.
In oral evidence Mr Dawes confirmed his understanding that in the promotion process he had ranked 12th out of 34 candidates, and that his chances of being promoted were greater if he agreed to go to Port Pirie, because fewer candidates were willing to take a position there.[117]
Otherwise, his cross examination was brief and did not disturb his affidavit evidence.
The issue for determination in relation to Mr Dawes is whether he is entitled to the Port Pirie travel allowance for the shifts he worked at Port Pirie Fire Station during the four years he served there.

[179]

Mr Ward filed his application on 5 September 2022 claiming for travel allowance payments from 24 June 2022 and ongoing. His claim is within the time limit for monetary claims.
Mr Ward provided affidavits dated 4 November 2022, 14 February 2023 and 22 March 2023. He also gave oral evidence.
Having joined the SAMFS in 1983, Mr Ward was promoted to the rank of Station Officer in around 2001. At that time he worked at the Oakden Fire Station. Apart from several months of working as a relieving Station Officer at various fire stations, and at what was then the Glynde Fire Station, Mr Ward then worked at the Oakden Fire Station as a Station Officer until his transfer to the Port Pirie Fire Station in 2019.
Following a memorandum dated 28 November 2018 calling for applications for appointment of Station Officers to Port Pirie for a period of two years, Mr Ward applied on 21 December 2018.
His application was successful without an interview. He understood that only four Station Officers had applied for the four vacant positions. He also understood that taking up the Port Pirie option would relieve him of his day work obligation.
Before their move, on 8 January 2019 one of the successful Station Officers, David Ross, sent an email on behalf of the four of them to Dave Collier of SAMFS seeking clarification of their entitlements upon their transfer to Port Pirie. The UFU industrial Officer was copied in to this email.
It asked for a meeting to consider a number of issues that concerned them, including their entitlement to travel allowances as none of them intended to relocate their residence to Port Pirie. It noted that they had been in contact with the UFU seeking their support.
On 10 January 2019 the UFU wrote by email to Dave Collier on behalf of the four Station Officers, quoting the Port Pirie travel clause at cl 15.5.3(a)(iv) of the 2007 Award and saying that the UFU had advised its members of this entitlement and that UFU expected the SAMFS to meet its obligations in the matter.
On 15 January 2019 there was a reply from Mr Collier to the applicants which did not allay the concerns of the UFU, which wrote again on 17 January 2019 notifying that the "grievance remained outstanding and appeared to be expanding. It cited 3 grievances:
1. The MFS did not reply to Mr Ross's email request of 8 January 2019 and did not meet as requested.
2. MFS failed to provide a copy of its 15 January 2019 response to the UFU as requested.
3. Information contained in the MFS's correspondence contrasts with other current practices: consistency of practice with other employees, and Memorandum No 104/2018.
To this was a same day one line reply: "Kathleen I think you will find that has been resolved and all parties notified".
There were then three further remails between 17 January 2019 and 22 January 2019 from the UFU asking for the terms upon which the issues had been resolved to be confirmed in writing.
This occurred by letter dated 22 January 2019,[118] which confirmed that the four transferring Station Officers were to be paid the Port Pirie travel allowances in accordance with cl 15.5.3(a)(iv) of the 2007 Award.
Mr Ward and the other three Station Officers transferred to Port Pirie in early 2019 and commenced receiving the travel allowances on that basis.
Mr Ward's transfer was confirmed by Notice of Transfer dated 31 January 2019 which confirmed his first duty at Port Pirie on 13 March 2019 at 0800 hours. The duration of the transfer was noted as "until further notice".[119]
Mr Ward then worked at Port Pirie as a Station Officer and at the time of his evidence remained working there.
Believing that his appointment there was for two years, consistent with the memorandum which informed his application, Mr Ward asked to stay on at Port Pirie after his two years was up. He did this by email dated 16 January 2021, submitting a Standard Procedure form 26 dated 20 January 2021 and sending another email dated 22 January 2021. He received a reply on 27 January 2021 that his request was being considered, but nothing further, and he simply kept working his Port Pirie shifts as nothing changed.[120]
In the middle of 2022, he became aware that SAMFS was proposing to promote Station Officers to replace Mr Ward and the other three who were also still working at Port Pirie. However, all four wanted to continue working at Port Pirie at that time.
The UFU raised this with the SAMFS Chief Office Morgan by letter dated 2 June 2022 notifying a dispute pursuant to cl 13.2 of the 2017 EA.[121]
On 17 June 2022 Mr Ward emailed a Station Preference form to the SAMFS which listed his preferences at Port Pirie, Oakden and Glen Osmond in that order. He received an email on 22 June 2022 confirming that his preferences had been so updated with a date of effect of 17 June 2022.
Shortly after sending the form, Mr Ward received a phone call from Assistant Chief Fire Officer Lindsay asking that he confirm his preferences, which he did.
By reply to the 2 June UFU email, on 23 June 2022 CO Morgan suggested some dates for a meeting, which then occurred on 28 June 2022. On 29 June 2022 the UFU confirmed by letter to CO Morgan that the UFU was willing to consider the dispute resolved subject to the SAMFS consulting the four Station Officers earmarked for transfer.[122]
This culminated in a letter from SAMFS Chief Officer M Morgan to the UFU dated 12 July 2022, which included the following:

[190]

ACFO Benham is a second-generation firefighter, following his father into the service in 1982. He worked in various operational roles, including as a firefighter at Port Pirie Fire Station, before his appointment as ACFO (formerly Commander) in 2006.
In his current role he has held portfolio responsibility for Country Operations, Emergency Management, Learning and Development, Urban Search and Rescue, Community Safety and Resilience, Regional Operations (including Port Pirie), Special Operations, Metropolitan Operations and Metropolitan Operations (Central). He has also had corporate responsibility for Work Health and Safety and Finance.
He gave evidence of historical practices in the SAMFS from his memory of his father's work patterns, as well as his personal experience in the SAMFS.
He was aware when he commenced in 1982 that operational staff at Port Pirie Fire Station worked a 48 hour shift followed by six days off. He later learned that the SAMFS rostered shifts there on a 24 hours on three days off basis, but that locally staff would swap their shifts to work the 48 hours shift pattern.
He understood at the time that this practice was meant to have ceased following the inquest into the 1982 death of a firefighter on his way home after working a 48 hour shift, but learned in these proceedings that the practice had continued until 1994.
His evidence was that while operational staff are rostered to work a shift pattern of 24 hours on followed by three days off, this can be altered whereby the ten hour day shift component and the 14 hour night shift component can be worked by different staff where an employee needs to be absent for only that part of the shift.
Where the absence is scheduled, the cover is known as a standby shift. Where it is unexpected, such as due to illness, it is known as a recall shift.
In his experience, the SAMFS paid travel allowance to staff that it directed to work at Port Pirie. That is, if there was no-one who expressed willingness to work at Port Pirie, then the SAMFS would select a person from Adelaide Metropolitan Operations and direct them to work at Port Pirie.
In his experience, the SAMFS did not pay travel allowance to recruits who were offered and accepted a position at Port Pirie, or to Station Officers who had applied for a position at Port Pirie.
In his experience he understood the UFU to be aware of the situations in which operational staff at Port Pirie were and were not paid allowances, and that the SAMFS kept the UFU informed by providing it copies of documents including notices of transfer.
In oral evidence Mr Benham confirmed that he had no personal involvement in the recruitment of the firefighter applicants, nor the promotion or appointment of the Station Officer applicants to Port Pirie Fire Station.[133] His involvement in the set up of the selection processes was limited to being aware of them through his membership of the management group where they were mentioned.[134]
He expanded on the evidence at [60] of his affidavit, about the difficulties facing the SAMFS in maintaining staffing levels at Port Pirie. He summarised those difficulties as the cost of travelling and the difficulty of getting people who were willing to work at that location. He confirmed that he was involved as a member of the management group which considered these issues and possible solutions to them.[135]
He said that a typical recruitment process attracts around 2000 applicants who go through a battery of tests, then an order of merit of perhaps 100, from which the top 18 are offered employment.[136]

[192]

Assistant Chief Fire Officer Peter Button has held this position substantively since 2014, having acted at that level since 2012. His experience in the SAMFS extends back to 1987. That experience includes three periods of service at the Port Pirie Fire Station. He worked there as a Senior Firefighter and Crew Commander for six months in each of 2000 and 2003, and then as Station Officer for a further six months in 2005. On each occasion he was paid travel allowances because he was seconded to Port Pirie Fire Station and kept his residence in Adelaide.
At the time of the 2010 promotion process for Station Officers to work at Port Pirie and Mount Gambier, Mr Button was in the role of District Officer and also had the role of Promotion Process Administrator. Part of this role was running the Promotion Process Information Sessions.
His understanding was that the SAMFS consulted with the UFU about that process, and that the SAMFS would often consult with the UFU about changes to work practices. In his experience, the SAMFS keeps the UFU appraised of matters involving appointments, promotions and transfers of firefighters.
In relation to the consultation with the UFU, Mr Button referred to documents tendered by the respondent but did not give evidence of any personal involvement in consultations about the payment of travel allowances for service at Port Pirie.
He said that at the time of the 2010 promotion process, there was no suggestion that travel allowance would be paid as the SAMFS would be appointing people who were applying for the position.
At the time of the 2014 promotion process, Mr Button was Chair of the Promotions Committee. He confirmed that this process ran with a single order of merit and that offers were made for the Stations Officer positions in Mount Gambier and Port Pirie on that basis of the order of merit. If an applicant was offered and refused the position, then it was offered to the next ranked applicant and so on until the positions were filled.
In the 2014 process the applicants ranked 7th, 12th, 14th, 15th and 16th were appointed, with the other applicants ranked above them refusing the offer.
In relation to recruitment, Mr Button gave evidence that the SAMFS relied on the agreement of the UFU to the process for recruiting and posting graduate Firefighters to Port Pirie, including agreement by the UFU that no travel allowances would be payable to those recruits.
He also gave evidence about the financial impact of the payment of the travel allowances at the rates applicable at the time of his affidavit on 2 December 2022.
He said that a Firefighter or Station Officer works approximately seventy-five 24 hour shifts per year, which may vary according to leave. The cost of the allowances was $679 per shift cycle for the Port Pirie travel allowances of 11 meals and 448 kilometres. Paid on a 24 hour shift cycle, this translated to $50,925 per year per operational officer if all shifts were claimed.
In oral evidence Mr Button supplemented his affidavit evidence from his memory that the cost of the recruit training course in 2017 was approximately one million dollars.[138]
In cross examination Mr Button confirmed that he had not personally been involved in deciding the appointments of any of the representative applicants nor the entitlements that would be paid for those appointments. Nor was he personally involved in the decisions about the terms upon which employment was offered to recruit firefighters or applicants for promotion.[139]
He acknowledged that where it was not within his personal experience, his understanding of the rationale for the practices of the SAMFS came from documents or from what he was told by other people in management positions.[140]

[196]

Here I note that the question of intention is by reference to the author and the parties, being the parties to the Award, not the parties to these proceedings.
The applicants themselves had given evidence that they were not aware of any agreement between the SAMFS and the UFU about the non-payment of travel allowance to Firefighters recruited or Station Officers promoted on condition of serving at Port Pirie. That evidence is not relevant to the interpretation of the Award, only to the question of extension of time.
In these proceedings, there were no witnesses who were personally involved in the negotiations of any of the 2002, 2006 and 2007 Awards, called by either the applicants or the respondent.
The applicants argued that as the Award clauses in question had their origin in the 2002 Award, there was no evidence of what the drafters or the parties then intended from which the Court could ascertain a common intention for that Award or the subsequent 2006 and 2007 Awards. In relation to the agreement between the SAMFS and the UFU about the process for recruitment to Port Pirie, as expressed in the 2003 and 2010 letters, they came into existence after the 2002 Award and can be of no assistance as to what was a common intention before then.
The applicants also argued that the agreement expressed in the 2003 and 2010 letters made no reference to the Award, and both letters were expressive of "common inadvertence" to the relevant Award conditions in relation to the travel allowances. Furthermore, evidence of a common understanding is not evidence of a common intention. Nor would the Court be bound to accept any interpretation that was agreed by the parties. They argued that the Court must then interpret the Award by accepted principles in the absence of a common intention.
The respondent argued that the common intention of the parties to the relevant Awards could be determined objectively by reference to the documentary evidence. On its argument, the 2003 and 2010 letters are clear evidence of a common understanding between the SAMFS and the UFU about the recruitment process for Firefighters, the condition for some that they first serve at Port Pirie, and that no travel allowance was payable.
That common understanding, says the respondent, expressed in 2003, was thus the basis upon which the parties approached the 2007 Award process. If that common understanding was not reflective of their common intention, then one would expect it to have been raised and addressed in the process of drafting the 2007 Award.
There is a distinct difference between a common understanding about the interpretation of an existing award provision, and a common intention as to its meaning as it is being drafted or included in a new award.
In relation to the interpretation of the term shift cycle, the 1995 correspondence between the UFU and the SAMFS displayed a common understanding that in the 1993 Award this meant that officers travelling for Port Pirie shifts were entitled to the allowance of 448km and 11 meals once every two 24 hour shifts, by reference to the "tour of duty" definition clause. By agreement between the SAMFS and the UFU in 1997, the SAMFS directed that payment of travel allowances would be 448km and 5 meals per 24 hour shift from 1 September 1996.
The agreed departure in practice from the 1995 common understanding of the application of the tour of duty definition to the travel allowance clause in the 1993 Award was not temporary. What were the intentions of the parties in the drafting of the subsequent Awards? Why did they keep including award provisions in terms which did not reflect the more beneficial practice they had agreed on?
By the 1997 exchange of letters it is apparent that the SAMFS and the UFU both considered that their agreement reflected in the 1997 Service Directive was not consistent with the relevant clauses of 1993 Award and they agreed to discuss amending the Award "at an appropriate time".
In terms of intention, the most that could be inferred is that at that point in time, in mid-1997, the parties to the Award intended to discuss amending it in the future. However, they did not proceed to what would appear to have been, at that time, an uncontroversial amendment given their agreement.
Although there appears to have been extensive negotiations through the award simplification process in the AIRC which resulted in a consent application to vary the 1993 Award significantly before it then became the 2002 Award, there is no explanation of the changes or lack of them to the travel allowance and shift cycle clauses being in the drafts of the 2002 Award nor in the transcript of hearing in the AIRC in 1999, or subsequent correspondence and orders.
The 2003 and 2010 letters make no reference to the travel allowance provisions of the respective operative Awards. They refer to an agreement between the SAMFS and the UFU about the process for the recruitment of Firefighters to the regional stations, which was consistent with the relevant provisions of the 2002 EA. While both letters refer to the agreement having been reached at the Single Bargaining Centre on 17 April 2003, the minutes of that meeting were not in evidence and there were no witnesses who attended it called to shed any light on what was considered in coming to that agreement.
The applicants argue this failure in the 2003 and 2010 letters to refer to the Award is significant. It says that, without any reference to the Award, the letters do not refer to a common understanding of the Award, but are an example only of "common inadvertence" to the Award.
The argument of the respondent is that the 2003 and 2010 letters demonstrate a common understanding of the 2002 Award, from which I could infer that the parties had a common intention consistent with that understanding when the terms of the 2006 and 2007 Awards were made. More simply, if the SAMFS had been on notice that the UFU did not agree with its interpretation of the 2002 Award clauses relevant to Port Pirie travel, it would have taken measures to renegotiate them in the 2007 Award. Although this submission was made, there was no evidence from the SAMFS on what it would have done.
Given the UFU had raised concerns in 1997 about the application of the 1993 Award travel allowances provisions to its members working at Port Pirie, and proposed amending the Award at that time, I find myself without sufficient evidence to make the inference sought by the respondent.
This murky historical background speaks against inferring any common intention of these parties to the relevant terms of the 2002, 2006 or 2007 Awards. I can go no further than a finding that in July 1997 the SAMFS and the UFU had a common intention to discuss amending the travel allowance provisions of the 1993 Award. There is no evidence of what further discussions there were on that subject, at that or any subsequent time.
There is no evidence of whether it was discussed and agreed that it would not be amended, discussed and not agreed with the parties not wanting to further delay the other award changes it was applying for by consent, or simply overlooked. What the history does provide is evidence of an agreement between the SAMFS and the UFU which did not directly correspond with the terms of the relevant Award.
I am unable to infer any common intention, as to the meaning of the transfer clause in its application to service at Port Pirie, in its current or 2002 Award form.
Consequently, I am charged with interpreting the Award in accordance with accepted principles.

[197]

The applicants submitted that there are distinct concepts relating to employment in the SAMFS, which bear on the interpretation of the Award: rank, position and place of work. In summary their submission in relation to these terms was:
- 499.1 Rank is an expression used in the FES Act whereby employees are promoted to a rank, or may be reduced from a rank. Rank as referred to in the FES Act corresponds with classifications in the Award and the EA.
- 499.2 Position is a statutory expression used in the FES Act. An officer, firefighter or employee is "appointed" to a position following a statutory process. For each position there will be a Position Information Description (PID), which may be connected with a place of work.
- 499.3 Place of work - officers and employees have a place of work, where they perform their duties, which may be a fire station but may be other premises of the SAMFS that do not provide a firefighting service. A change of workplace may arise in a number of ways, by way of transfer or relieving or otherwise subject to the direction of the Chief Officer.
As noted above, the terms "rank" and "position" are used in the FES Act but not defined. Their meaning is a matter of statutory construction.
There are other terms and concepts which have emerged in the evidence which provide further context for the interpretation of the Award.
In referring to the term "position", the applicants referred to a Position Information Document (PID) for each position. This is an administrative document created by the SAMFS, under the legislative power of the Chief Officer to manage the staff and resources of the SAMFS.
There are necessarily a number of such administrative documents. These include Service Administrative Procedures, each of which have a number (e.g. SAP No. 40); Service Directives of the Chief Officer, such as Service Directive 24/97 which directed payment of travel allowance; Memoranda; Notices of Appointment; Notices of Transfer and others.
Necessarily, these documents have effect only insofar as they meet the minimum terms and conditions of the Award and the Enterprise Agreement. Their relevance to interpreting the Award is contextual. However, the understanding that they can bring to the context is beneficial.
In addition to the terms and concepts which the applicants referred to, are others encountered in the administrative documents and the evidence.
Of key relevance amongst these is the term "secondment" which does not appear in the Award and which the SAMFS uses to describe a particular form of transfer of an officer from one place of work to another. Also key is the administrative procedure by which the SAMFS operates its station preference system.

[205]

The Award does not itself define the word "transfer". The Macquarie Dictionary includes a number of meanings. The one closest to the use in the Award is "to convey or remove from one place, person etc to another."[146]
The applicants argue that the word transfer in cl 15.5.3(a) of the Award refers "simply to a change of the location at which work duties are performed by an employee from one place to another".[147]
The respondent argues that the travel allowance clauses are concerned with a change of an employee's location of work from one SAMFS station to another where the transfer is at the direction of the SAMFS. It says that the words "is transferred" contemplates a transfer that is instigated by the SAMFS, and adds an additional element of externality which must be read differently to where an employee "transfers to any other station."[148]
Taking a step back, the meaning of transfer as that term is used in the Award determines what entitlements flow from the transfer. These are relocation expenses, and/or entitlement to meal and mileage allowances at the prescribed rate. For the purposes of this exercise, I will refer to the meal and milage allowances collectively as travel allowances.
As relocation expenses are uncontroversial in this dispute, and only available on a transfer, the more useful reference is the purpose of the payment of the travel allowances. A consideration of where else the Award requires mileage allowances to be paid is a useful point of reference, because it only arises where there is travel involved, and travel is only involved if there is a change of location at which the work duties are performed. Reference to meal allowances is less useful as they are also paid in circumstances where no travel is required.[149]
There are three clauses of the Award which describe the circumstances in which mileage allowance is paid. Simply, these are Recall in cl 14.2.6, Transfer in cl 15.5.3(a) and Relieving in cl 15.5.3(b).
The terms on which it is paid have some common and some different criteria. In each case there is a change of the location at which the work duties are performed. The differences are based on the duration and purpose of the change of location.

[215]

In this context, the words any other Station could refer to transfers generally or could refer to a Station that is not one of those identified in the immediately preceding paragraph. That is, to any station that is not Port Pirie, Mount Gambier or Whyalla.
This ambiguity was not addressed in submissions. However, if the clause was interpreted as referring to stations other than Port Pirie, Mount Gambier or Whyalla, employees who live outside the metropolitan area and are transferred to Port Pirie would have no entitlement to travel allowance under that clause. The clause provides for mileage allowance for the distance between the employee's residence and their "new station" that exceeds the distance between their residence and Adelaide headquarters. The location transferred from is not referred to. It does not use the terms "home station" or "normal station".
The word "from" appears again if you are transferred to or from Port Pirie to or from the Adelaide metropolitan area you will be entitled to the specific meal and travel allowances in clause, 15.5.3(a)(iv).
This leads to an interpretation of the Port Pirie transfer clause that the reference to the location of the Adelaide metropolitan area in relation to the transfer is to a station, or a place of work, given that the only other available stations are excluded by the preceding clause. Where the drafting is then inconsistent is where it uses the Adelaide metropolitan area as the place of residence, ignoring the possibility which occurs in reality that some employees transferred from a station in Adelaide to Port Pirie may not have their residence in the Adelaide metropolitan area, even if they have been working in the Adelaide metropolitan area.
This is a lacuna which the SAMFS and the UFU appear to have agreed to fill in practice by interpreting the general transfer clause to include employees who maintain a residence that is neither in the Adelaide metropolitan area nor Port Pirie. In my view this is an interpretation which is consistent with the purpose of the mileage allowance and avoids injustice.
The purpose of the mileage allowance is to compensate the employee for the additional cost to them of travelling for duty at a station that is not their usual place of duty or at a new usual place of duty. In situations of recall and relieving, other than Port Pirie, it is tied to actual kilometres travelled which would not otherwise be required for that duty.
For situations of transfer, in cl 15.5.3(a)(iii) a deeming provision is introduced whereby, for the purposes of calculating the mileage allowance, the Adelaide headquarters, which is co-located with the Adelaide Fire Station, takes the place of the location referred to in the recall and relieving clauses as the "home station" or the "normal station".
While the SAMFS has no control over where its officers choose to reside, this deeming provision has an evident purpose of encouraging the SAMFS to assign operational staff to stations which are closer to their residence than is the Adelaide headquarters. The advantage to the officer of a placement closer to home than to the Adelaide Station is reduced time commuting to their shifts than if they were placed further away. The advantage to the SAMFS is reduced cost of travel allowance payments for close to home placements, as well as reduced response time for emergency recall to duty.
If one assumes that most employees would nominate their preference for a station closer to their residence than Adelaide headquarters, one can see how the Station Preference System would work to the advantage of both operational staff and the SAMFS when applying the general transfer clause. One can also see how over time this might translate to a common view that transfer to one's station of first preference would not attract travel allowance.
This is taken further in cl 15.5.3(a)(iv) where actual residence is replaced with a criteria of residence in the Adelaide metropolitan area or Port Pirie, and travel allowance compensates at a set rate which reflects the distance by road for return travel between the Adelaide station and the Port Pirie Fire Station. It simplifies the allowance payable such that it is the same for all officers entitled to the payment, regardless of where in the metropolitan area they choose to live.
The absence in the transfer clause of a specific identification of the place transferred from needs to be looked at in this light. The work of the terms "home station" or "normal station" in the recall and relieving clauses, as the reference point for the calculation of the mileage allowance, is replaced in the transfer clause with Adelaide headquarters. The work of the "duty station" as the station where work is temporarily being performed, is replaced with "new station" in the general transfer clause.
I accept the respondent's submission that where the Port Pirie transfer clause refers to a transfer from "one of those locations to the other" it must be referring to the location of the workplace. There is nothing else that it could refer to as it only applies where there has not been a change of residence. That is, it must refer to either the Port Pirie Fire Station as it is the only SAMFS place of work in Port Pirie, or to a SAMFS workplace in the Adelaide metropolitan area.
In context, the Award uses the word station to refer to the place where Firefighters and Station Officers perform their duty. There is no discernible purpose to the word station being lower case in the recall clause and capitalised in the transfer and relieving clauses.
The same goes for "home station" or "normal station" as referring to the place which is their normal place of work, from which they can be required to travel elsewhere for temporary duty of less than 8 shift cycles, and to which they then return, or from which they can be transferred to a new normal place of work.
The evidence on the recruit training course was consistent in that it was a daily attendance for training during "day work" hours of Monday to Friday, during which recruits were in training and were not qualified, classified or appointed as Firefighters. During this 14 week period, they are classified in the Award as "Trainee Firefighter" although in the evidence they were referred to as recruit Firefighters.
Day work is described at cl 16.1.6 of the Award, as being ordinary working hours of 38 hours per week, worked between the hours of 0700 and 1800, Monday to Friday, as distinct from shift work.
Trainee Firefighters are specifically excluded at cl 13.3.5 from the shift allowance paid to employees on other classifications, even though the shift allowance is still paid when those employees are on day work as if they were working shifts.
This exclusion is consistent with their status as trainees, who do not work shifts and are not qualified to perform the duties required in operational roles.
Clause 14 is entitled Penalty Rates.
Clause 14.2 is entitled Officers, Firefighters, Marine Staff and Communications Centre, indicating that the provisions under that title refer to employees in those classifications. They then refer to operational duties that are not performed by Trainee Firefighters, and the entitlements that attach to the circumstances described - overtime, standby, and recall.
Clause 15 is entitled Allowances.
The allowances in cl 15 are payable for particular kinds of operational duties - breathing apparatus maintenance allowance for Breathing Apparatus Technicians, Firefighter or Senior Firefighters assisting with recruit training, Officer in Charge of fire training, allowance for the trainer training in breathing apparatus use, day working, shift allowances, relieving and the subject of this dispute - transfers.
In context, all of these penalties and allowances are paid for particular activities or requirements occurring in the course of operational duties. Trainee Firefighters are not qualified to undertake the operational duties to which these payments refer. They do not become so qualified unless and until they successfully complete and graduate from their training.
It is at the successful completion of their training that they are:
- 562.1 appointed to the position of Firefighter under s 29 of the FES Act;
- 562.2 progress from the classification of Trainee Firefighter to classification as a 4th Class Firefighter under the Award;
- 562.3 assigned to a shift at a Fire Station (with each Fire Station having a designated number and each shift a designated letter, e.g. shift 50A denoting A Shift at Port Pirie Fire Station);
- 562.4 allocated to a leave roster; and
- 562.5 directed to attend for their first shift as a Firefighter at the time, date and location of their newly allocated shift.
Although their employment status changes from Trainee Firefighter to Firefighter upon their appointment as a Firefighter, it is at the point of their attendance for that first shift that they commence their operational duties as a Firefighter.
Although not specifically defined in the Award, its use of the terms of "home station" and "normal station" are descriptive of the station to which an officer is assigned by their shift allocation for any period of more than 8 shift cycles. It is by reference to this assigned shift and location that the entitlements described as penalties in cl 14 and allowances in cl 15 are assessed.
It is clear from the evidence that the Angle Park Training Centre would qualify as a "home station" or "normal station" for those officers who are assigned to duty in Learning and Development, i.e. they are assigned to duties that involve either training recruits or other employees, or which support the training of recruits or other employees. For some it may qualify as a "duty station" where they are performing duties on a temporary basis away from their home station.
The evidence in relation to training at the Angle Park Training Centre was that officers who attend there to be trained do so only for the duration of their training, which may be for days or weeks. They are not transferred there from their home station - they are considered to be on "out duty", which is another term not found in the Award. It is another descriptive term which refers to officers in training or performing other non-operational duties, who then return to their shift at their home station, or if the period of training coincides with a transfer, may be reassigned to another shift at another station.
The argument of the Firefighter applicants is that for the purposes of the transfer clause, the place they transferred from was the Angle Park Training Centre, such that the travel allowances became payable from the time of leaving that location. They argue that their attendance there for their training was the performance of their duties as employees at that place of work, and thus the change of location of their place of work upon graduating is a transfer for the purposes of the Award transfer clause. This would make the Angle Park Training Centre the starting place for the entitlement to travel allowance on transfer.
Such an interpretation would introduce an inconsistency in the application of cl 15.5.3, between the entitlements to travel allowance for transfer and those for relieving. The starting place for the entitlement to mileage allowances for relieving duty is the home station or normal station, from which the officers temporarily depart and to which they then return. The Angle Park Training Centre cannot be that place for newly graduated Firefighters. It can only be that place for officers who work there as a consequence of their assignment to duties in Learning and Development. For the newly appointed Firefighters, the entitlement to travel allowance for relieving duty only arises when they are required to travel from their home station. It commences with their duty at their first place of work as Firefighters.
If the argument of the Firefighter applicants is accepted, then the commencement of their entitlement to travel allowance on transfer would be different from and earlier than their entitlement to travel allowance for relieving. There is no objective or logical reason why this would be so. Angle Park Training Centre would assume the status of the home station, or normal station, from which all newly appointed Firefighters are transferred and potentially entitled to travel allowances, including those assigned to metropolitan fire stations.
The term used throughout the transfer clause for the circumstances in which the entitlement to travel allowance arises is the term "is transferred". The stated exception is transfers at their "own request" which limits the allowances to employees who have completed two years at the location they are transferring from.
That the transfer clause and the relieving clauses are to be read by reference to each other is demonstrated by the wording of cl 15.5.3(a)(i) which refers to relieving and its location at cl 15.5.3(b).
Viewed in these terms, the entitlement is consistent with the criteria and purpose in the Award for the payment of travel allowance to compensate employees for additional expenses to them of duties that they are required to perform at a location other than their home station, for recall or relief, or on transfer from that station.
The Award contemplates penalty and allowance payments for employees payable in the course of operational duties for particular incidents of that duty. There is no provision for allowances payable during the duty of recruit training.
The respondent referred to the process of a newly graduated Firefighter being assigned a shift at a fire station as an "initial posting". The word "posting" does not appear in the Award, but is a term that is used and has been used in enterprise agreements since 2002. It argued that for the purposes of the transfer clauses, there has to be a starting point and that starting point is the place of the initial posting.
In aid of their argument that the Angle Park Training Centre was the location transferred from, the Firefighter applicants referred to the use of the word "transfer" in the SAMFS administrative notices that they received informing them of their shift and location assignments at the conclusion of their recruit training.
The respondent argued that the use of this term in those notices does not aid in the interpretation of the Award transfer clauses, as their purpose was purely administrative, using forms of general application, to record the movements of officers between stations and associated cost centres.
The terms used by the SAMFS in its operational and administrative processes may or may not reflect Award entitlements. There are terms that it uses which do not appear in the Award, terms that it uses in substitution for terms in the Award, a mixture of terms in the Award itself which it may or may not use, terms in the Award which it uses interchangeably with other terms in the Award.
These usages are a matter of custom and practice. While they may or may not enlighten the Court about the understanding that a party had in relation to the meaning of the term, they do not enlighten the Court as to the proper interpretation of the Award.
I find that the provisions of cl 15 of the Award apply to Firefighters from the time and place at which they commence operational duty. It is from that time and place that their entitlements to allowances and penalties for the specified incidents of their operational duty accrue.
There is nothing in the Award which precludes the practice of the SAMFS offering employment to Firefighter positions on the conditions that it does, including the condition that upon successful completion of their training and appointment as a Firefighter, the potential employee agrees to accept their initial posting to the Port Pirie Fire Station. The further information that travel expenses will not be paid if they choose not to reside in Port Pirie is consistent with the Award provisions which apply from the commencement of that operational duty.

[216]

The respondent raised the argument in the alternative, that if the applicants were transferred, then in each case it was at their own request. In the case of the Firefighters, they had accepted the offer of employment on the basis that the position was to be located at Port Pirie. In the case of the promoted Station Officers, they applied for promotion and were offered that promotion on condition that they were assigned to duty at Port Pirie for four years. There was no requirement by the SAMFS that they either apply for or accept that promotion. In the case of the extended Station Officers, the extension of their agreed term at Port Pirie was at their own request in accordance with their submitted Station Preference Forms, as they had completed their agreed term and were entitled to return to duty in the Adelaide metropolitan area.
Embedded in this argument is an interpretation of the words "is transferred" in cl 15.5.3(a) to mean that such transfer was directed by the SAMFS in circumstances of compulsion. The argument when distilled was that a transfer was either involuntary by direction of the SAMFS, or if voluntary, was at the request of the officer. In essence, the respondent contended that only transfers which met the SAMFS definition of secondment enlivened the entitlement to travel allowances.
The applicants contended that such an interpretation could not be supported from the text or context of the Award, nor was such an interpretation consistent with established authority on what "own request" means in other industrial instruments.
The applicants argued that "own request" denoted an initiative of the employee to meet their own personal needs or preferences, independent of the operational needs of the employer. It requires more than simply a lack of compulsion by the employer. A transfer was not at an employee's own request if it was by consent of the employee to a request, proposal or offer by the employer to meet its operational needs or objectives.
The applicants referred to the judgment of the South Australian Supreme Court in Tempo Services[150] as authority for their argument.
In that matter, the Award clause to be interpreted provided an additional payment to employees "required to work permanently on afternoon or nights shifts" but that employees who worked permanently on those shifts "at their own request" were not entitled to the additional payment.
White J considered arguments in that matter similar to those presented in these proceedings.
He considered that the subject clause had to be construed as a whole. It was such as to create an entitlement subject to a proviso. The entitlement was to an additional payment for working permanently on afternoon or night shifts. The proviso was that employees who worked those shifts at their own request were excluded from the additional payment. To be so excluded, they must otherwise have been within the opening words of the clause. Otherwise, the proviso would be deprived of any practical effect.
He went on to hold that employees would work permanently on afternoon or night shifts "at their own request" if their request was the principal contributing factor to the decision of the employer requiring that they do so. He endorsed the view taken by the Full Bench of the Industrial Relations Court, that the words "at their own request" require a specific and identifiable solicitation by the employee.[151]
His Honour's approach to interpreting that clause is apposite to the interpretation of cl 15.5.3(a).
Clause 15.5.3(a) follows a similar structure, in that it provides for particular payments to employees who are transferred, but then has an exclusion in cl 15.5.3(a)(vii).
The exclusion in cl 15.5.3(a)(vii) is very specific. Even if the employee is being transferred at their own request, they are still entitled to the payments in the preceding subclauses if, prior to the transfer, they had served two years at the location they are transferring from.
This exclusion tells against the argument of the respondent that the words "is transferred" denotes any element of compulsion by the SAMFS. The exclusion in cl 15.5.3(a)(vii) simply inserts a qualifying period of two years at the pre-transfer location before the entitlements apply to transfers at an employee's own request. Otherwise, transfers at own request are to be treated the same as transfers for any other reason.
An employee may request a transfer, but not demand one. The request only becomes a transfer after the SAMFS grants the request and transfers the employee. At that point the employee "is transferred" within the meaning of the clause. What the exclusion in cl 15.5.3.(a)(vii) does is make clear that an employee who requests a transfer within two years at their current placement will, if their request is granted, not be entitled to the allowances that would otherwise flow from the transfer.

[218]

The respondent has argued that the Station Officers who applied for and accepted promotion on condition that they serve four years at Port Pirie were not transferred because they elected to be posted there by nominating Port Pirie as a position they were applying for. They were then promoted by appointment to those positions, not transferred. It also says that such an appointment was therefore at the instigation of the employee, not the SAMFS, and thus not a transfer.
The respondent argues that this element of promotion distinguishes them from the 2018 Station Officers who volunteered to work at Port Pirie in circumstances where otherwise the SAMFS would have had to resort to compulsory transfers.
It argued in the alternative that if the promotion was a transfer then it was at the officer's own request. In the case of Station Officer Day, the respondent says that he did not spend two years at his previous posting, which was for four weeks at Adelaide Fire Station where he was administratively assigned while he attended the Angle Park Training Centre for training before commencing at Port Pirie.
There is a level of confusion apparent in the SAMFS approach to promotions which involve a transfer. On the one hand, it informed applicants that no travel would be paid as the Port Pirie Station Officer positions would be appointments not secondments. Then in the letters of appointment, it referred to the appointment as being "deemed your station preference" for the purposes of the Station Preference System.[152]
Deemed station preference is a contradiction in terms. If it was indeed the officer's station preference, there would be no need for anything to be deemed.
The applicants argue that a promotion can also be a transfer and there is nothing in the Award that excludes a change of work location on the basis of promotion from the transfer provisions.
They argue that posting, promotion, appointment or secondment are reasons for a transfer, not definitions.
They point to cl 16.1.4(a) of the Award which says "On appointment or promotion an employee will be allocated to a particular shift roster." Their counsel submitted that "this Award knows that if it wants to use appointment or promotion as a trigger for something, it will use those words. [153] It does not use those words in relation to the transfer clause.
I note that a change of shift allocation can occur in circumstances other than appointment or promotion. Clause 16.1.5(b) provides for an inconvenience allowance for an employee who is required to change their shift to cover a short-term shortage. Clearly, secondment is also a reason for a change of shift. And, whatever the reason for it, a transfer also involves a change of shift. Certainly there is no wording which explicitly excludes an appointment or promotion from the meaning of transfer in cl 15.5.3(a). Any exclusion would have to be by necessary implication.
As noted by reference to s 29 of the FES Act, the Chief Officer is empowered to appoint officers and firefighters.
Apart from appointment to the lowest rank, not defined but logically referring to new recruits who are employed as Trainee Firefighters who only qualify for appointment as Firefighters upon successful completion of their recruit training, such appointments are subject to the nomination and review procedures in s 29(2).
These procedures prescribe that appointments are to a position. There was reference by the applicants to promotion to a rank. While an appointment may involve a promotion to a higher rank, the terms of the FES Act are clear that it is an appointment to a position. The FES Act does not prescribe the duration, duties, title, classification, rank or location of such positions, only that they are subject to the terms of the applicable award or enterprise agreement.
Administratively, each position that is filled by appointment pursuant to s 29 has a position information document PID which describes the duration, duties, responsibilities, classification, qualifications, and possibly the location of the position.
The creation of positions and the description of them in a PID is an administrative process within the power of the Chief Officer to manage the resources and employees of the SAMFS. It is open to the Chief Officer[154] to define the location of a position via this administrative process.
Consequently, it is open to the Chief Officer to create positions at particular locations and to appoint officers to those positions at those locations. The appointment of newly graduated Firefighters to Port Pirie, Mount Gambier or Adelaide metropolitan operations is an exercise of this legislative power.
However, decisions about what position is created and how it is described are subject to the terms of the relevant industrial instruments. In this case, the Award. For example, the duties of the position must accord with the Award classification criteria for the level at which it is created.
Appointment pursuant to s 29(2) of the FES Act is not limited to promotional appointments. The requirement for a nomination for appointment to be notified to all officers of the same or lower rank indicates that it applies equally to appointments to positions at the same rank as well as promotional appointments. In simple words, the appointment can be an upwards or sideways movement of the officer concerned.
The promotional or lateral appointment of officers to positions that they did not previously hold may or may not also involve a change of work location. The converse is also true - a change of work location may or may not involve appointment to a different position.
Whether an appointment is promotional or lateral, it is an action of the SAMFS to fulfill its operational objectives. It chooses what position or positions to fill and when.[155] It calls for applications. It then chooses who to nominate for appointment and if above the lowest rank, the procedure in s 29(2) then follows.
There is no provision for appointment or promotion at an employee's own request. An officer has a choice whether to apply or not, and if offered the position whether to accept it or not. An officer cannot be compelled to apply for appointment to a position, so in that sense all appointments are voluntary. But they are instigated by the SAMFS to meet its operational objectives.
The common element to what the SAMFS defines as an appointment and what it defines as a secondment is that each is an administrative action to fill a vacancy which the SAMFS has identified as needing to be filled.
SAP No. 6 states that appointments will normally be for a minimum of two years, but in the case of appointment to regional areas will normally be a minimum of four years. Secondments may range from three months to a maximum of two years, but for regional areas a maximum of four years.
According to this procedure, for regional duties, the normal term of appointment and the normal term of secondment is the same - four years.
The difference is only whether the position is filled by a competitive merit process, subject to the review provisions of s 29(2) of the FES Act, or by a management nomination, either voluntary or by compulsion. If the SAP No.6 is to be taken as the official SAMFS position on appointments and secondments, the management nomination can be of a volunteer, even if expressed with inverted commas.
Whether by appointment through a merit process, by voluntary or compulsory secondment, or by own request, employees are assigned by the SAMFS to fill vacancies at the assigned locations, to meet its operational objectives.
How the location of a position to be filled is described is an administrative decision taken by the Chief Officer. The CO can describe that location broadly, as for the metropolitan Station Officer positions, or narrowly as being in Regional Operations Port Pirie. That is an operational decision, but it is subject to the terms of the Award.
The only exclusion in the Award to the reasons for transfer is when it is for relieving, as defined in the transfer clause itself.
ACFO Button in evidence included his understanding that the SAMFS considered the benefit of earlier promotion and relief from the day work requirement as advantages to the promoted Station Officers that they would not have if they did not accept promotion on condition of serving four years at Port Pirie. [156]
The Award compensates employees who work at the level of Station Officer with a higher salary than those working at a lower level. It does not trade off other allowances for this salary.
Where the SAMFS decides to appoint to a position at a particular location to meet its operational objectives, the process by which the employee is selected does not affect whether that relocation or travel results in additional expense to that employee. It is for that additional expense that the Award provides recompense by way of the allowances in the transfer clause.
It is open to the SAMFS to offer incentives to attract volunteers for appointment to difficult to fill positions, such as exemption from the day work requirement or the possibility of earlier promotion, but the Award does not provide for such incentives to replace or be traded for the minimum entitlements that it prescribes.
Given that Station Officer appointments are limited to officers who are already employed and already entitled to the allowances in cl 15.5.3 of the Award, excluding them from those allowances by reason only of the process by which they are selected for appointment to a new position would require specific words of exclusion or a necessary implication.
There are no words of exclusion in the text of the Award, and I am unable to discern any necessary implication. To the contrary, the necessary implication is that the Award exists to protect the conditions of employment of the employees of the SAMFS and while the CO has responsibility for managing the resources of the SAMFS that power does not extend to structuring operations administratively to defeat the obligations of the Award.
I find that the transfer provisions in cl 15.5.3(a) do not exclude changes of work location consequent upon a promotion or appointment pursuant to s 29(2) of the FES Act.

[223]

cl 16.1.1(c), or if it was unused. 6. Clause 3.14 does not stand alone. There is a clear and dependent relationship between it and cl 16.1.1, whereby cl 3.14 describes the same sequence of shifts as prescribed by cl 16.1.1(b). The definition appears to have its source in cl 16.1.1 which prescribes the Award conditions for the organisation and working of shifts in the SAMFS. 7. The interpretive difficulty arises in this case because the definition of shift cycle describes a sequence of shifts that, by virtue of cl 16.1.1(c), is not worked at the Port Pirie Fire Station. Although not in argument in this matter, nor does it describe the sequence of shifts worked at the Mount Gambier Fire Station. 8. This necessarily leads one away from the actual text to the context, both of the definition itself and the application of the definition to entitlements that are intended to flow from it. 9. Taking cl 16.1.1 as a whole, noting it is entitled Shift Cycle, cl 16.1.1(a) uses the term shift cycle to describe the start and finish times of each day shift and night shift which together cover the 24 hours of each day. It does not include the sequence by which those shifts are to be worked. 10. Clause 16.1.1(b) describes the sequence by which those shifts are to be worked, in exactly the same order as the cl 3.14 definition, as well as the number of days off duty between each set of consecutive shifts. 11. Clause 16.1.1(c) then allows for "this system of operation" to be varied by consent of the SAMFS and the UFU. A plain reading of those words as they follow the two subclauses above them, is that the variation allowed is to that which is prescribed in the preceding subclauses - that is the start and finish times of the shifts, the sequence by which they are worked and the days off duty between shifts. 12. Historically and currently the parties to the Award have relied on their agreement to the system of operation at Port Pirie rather than specifying it in the Award. Clause 16.1.1(c) allows this to happen. 13. The cl 16.1.1 system of operation for Mount Gambier has also been varied by consent. However, the shift arrangement at Mount Gambier has been included in the 2017 and 2022 enterprise agreements, both instruments voted on by SAMFS employees and approved by the SAET, which is an option the Award parties have chosen not to take in relation to Port Pirie.[158] 14. The interpretation pressed by the respondent raises the question of the scope and enforceability of the agreement between the SAMFS and the UFU made pursuant to cl 16.1.1(c). 15. As noted above, the Award itself is an instrument made by order of the SAET pursuant to s 90 of the FW Act, legally binding such that a failure to comply with an award provision is an offence. 16. It follows that the parties to an award cannot between themselves create an obligation with criminal sanction, which an award provision carries. That power lies only with the SAET by virtue of its award making jurisdiction under the FW Act. 17. Consequently, it must be the case that only the actual provisions of the Award which have been approved by order of the SAET can be enforced as Award provisions. 18. Where the Award allows for a departure from those standard provisions by agreement, either between the employer and the union, or the employer and an employee, it must be the case that the agreement cannot deprive an employee of the minimum entitlements that the Award otherwise provides. 19. The applicants argued that the agreement to vary the system of operation for work at Port Pirie Fire Station can and does include agreement to vary the shift cycle for Port Pirie, as that term applies elsewhere in the Award to entitlements for that work. 20. They pointed out that the system of operation as a matter of text includes all the elements of cl 16.1.1, which terms include text identical to cl 3.14. 21. They referred to the examples of the Position Information Documents dated 3 February 2011 and 7 August 2014 which read:

[225]

The applicants argue that they were engaged on the basis of the shift cycle for Port Pirie being as varied, and that historically the travel allowances in cl 15.5.3(a) have been paid on the basis of that Port Pirie shift cycle.
Ultimately they argue that the "SAMFS ought to be estopped as against the [a]pplicants from now departing from that position".[159]
This argument relies on evidence of conduct by the SAMFS that goes to the content of the agreement between it and the UFU pursuant to cl 16.1.1(c).
As to that content, there was no suggestion by the respondent that the SAMFS did not agree the arrangements set out in the letter from SAMFS to UFU on 22 January 2019, or Service Directive 24/97 before that. Nor did it suggest that SAMFS had not been paying travel allowance for service at Port Pirie on the basis of the 24 hours on 72 hours off shift cycle.
Its argument is that the Award does not oblige it to do so as the agreement between the SAMFS and the UFU could neither alter the definition of shift cycle in cl 3.14 nor its meaning wherever else it appears in the Award. It drew a distinction between what is an agreement between the SAMFS and the UFU, and what is an Award obligation.
Further, it argued that the Award obligation to pay travel allowance per the cl 3.14 definition, translates to shift cycle meaning four consecutive shifts which, when applied to duty at Port Pirie, equals payment per an eight day cycle not a four day cycle. Essentially this is the same interpretation agreed by the SAMFS and the UFU in 1995 pursuant to the definition of tour of duty as it appeared in the 1993 Award.
The respondent further argues that accordingly, payment on a four day cycle would exceed what the parties included in their bargain, their bargain being sealed by the Award.
With respect to the respondent, if its argument is accepted, that the meaning of shift cycle as expressed in the text of cl 3.14 must be applied wherever it later appears in the Award, then it can no more be held to mean four shifts in any sequence over eight days than it can be held to mean two shifts in any sequence over four days. On their own argument, it can only mean what it says - two day shifts followed by two night shifts.
The definition in cl 3.14 includes both the number of shifts and the sequence by which they are worked. That number and sequence are not included in the system of operation agreed between the SAMFS and the UFU at Port Pirie. With respect, that system of operation must also be a bargain between the SAMFS and the UFU, as it can only exist by their consent.
The definition of shift cycle in cl 3.14, as written, is meaningless when applied to the system of operation in place by agreement at Port Pirie.
That lacuna cannot deprive employees of the minimum entitlement that the Award provides. The question is, how is that minimum to be determined when the definition applying to it is not reflective of the reality?
In the absence of a memorandum of understanding or specific document recording exactly the terms of consent pursuant to c1 16.1.1(c), and in the absence of any witness on behalf of the SAMFS or the UFU giving evidence as to what the terms of the agreement include, it falls to the Court to determine objectively on the available evidence what is included.
The evidence is compelling that the system of operation the SAMFS and the UFU have agreed on pursuant to cl 16.1.1(c) has since at least 1997 included the basis upon which travel allowances are to be paid for the shift cycles operating within that agreement.
Although there is no express provision in cl 15.5.3(a) for a variation by agreement, those are minimum entitlements and it is and always has been open to the parties to the Award to agree terms more beneficial.
As noted above, the consent of the parties to vary the system of operation is allowed by the Award. However, that consent variation is not a variation to the Award itself. It is a variation that can only exist as long as the consent of the parties is maintained. If one party withdraws consent, from that time on the standard shift provisions apply as enforceable Award provisions. The agreement between the parties cannot therefore be enforced prospectively.
On the evidence of the 1997 correspondence, Service Directive 24/97 and the 22 January 2019 letter from the SAMFS to the UFU, I find that the agreement between the SAMFS and the UFU in relation to the system of operation at Port Pirie included agreement that travel allowance would be paid per Port Pirie duty cycle of 24 hours on duty followed by 72 hours off duty. This makes sense because the agreement to vary the system of operation resulted in a shift cycle that is not included in the Award definition of that term.
This agreement does not redefine the term shift cycle in cl 3.14 of the Award, which applies without difficulty to the shift arrangements prescribed in cl 16.1.1(a) and (b), whether described as shift cycle, day cycle or duty cycle. Nor does it give rise to an enforceable Award obligation to pay travel allowances as agreed between the parties.
The enforceability in retrospect of any aspect of the parties agreement to the system of operation at Port Pirie may be a matter that requires determination as an industrial dispute, but these are not industrial dispute proceedings between the SAMFS and the UFU.
To this extent I agree with the submission of the respondent that the agreement of the SAMFS to pay travel allowance as per the letter of 22 January 2019 or Service Directive 24/97 before it, is not an enforceable Award obligation.
That distinction does not however determine the Award entitlements of the applicants who are claiming in retrospect for their Award entitlement to travel allowance for service at Port Pirie under the agreed system of operation.
The difficult interpretive task remains of identifying the minimum entitlement for a pattern of work that the Award does not describe and to which the applicable definition cannot be directly applied.
How then might the meaning of shift cycle be interpreted in relation to the entitlement to travel allowance for duty at Port Pirie?
As noted by White J in Tempo Services:[160]

[229]

In this case, there is no available interpretation of the meaning of shift cycle in cl 15.5.3(a) as it applies to duty at Port Pirie Fire Station, which does not involve straining.
There is the plain text of the definition in cl 3.14. There is the prescribed system of operation set out in cl 16.1.1(a) and (b). There is the variation to that system of operation at Port Pirie by agreement between the SAMFS and the UFU.
The interpretation pressed by the respondent involves straining the words of the definition to disregard the sequence and prioritise the number of shifts to equal four worked in any order, without consideration of the purpose of the travel allowance. The effect of this is to pay mileage allowance for half of the travel actually required for each attendance for duty at Port Pirie, but is consistent with the number of meals in the allowance for duty over a four day cycle, not a 24 hour cycle.
The interpretation pressed by the applicants strains the definition to disregard the number of shifts and prioritises the purpose of the travel allowance clause.
It is a question of which, when strained for meaning, gives effect to the evident purposes of the Award and avoids inconvenience or injustice.
Applying either interpretation to transfer for work at Port Pirie results in anomalies. The first is allowance for 11 meals over a period of time which reasonably reflects 5 meals away from home. That is, 24 hours of duty and around 5 hours of travel.
The second is that the mileage allowance being paid once every four shifts would mean that the employees undertaking that travel would be entitled to mileage allowance in respect of half the travel they have to undertake to attend for their duty. In effect, this would compensate them at half the prescribed rate.
At issue is an award, and consequently some flexibility is required for the peculiar context here where the Award specifically allows for a variation by consent to one provision, without specifying a process by which consequential issues were to be addressed.
In my view the task of ascertaining the minimum Award entitlement must prioritise the purpose of the provision,[162] which can be informed by how the definition operates on the same clause in the reverse circumstances. By this I mean that the travel allowances in the Port Pirie transfer clause apply whether the transfer is to Port Pirie from Adelaide or to Adelaide from Port Pirie.
What does the clause compensate the employee for if the transfer was from Port Pirie to Adelaide, where the defined shifts are worked? If transferred to Adelaide, the employee would receive allowance for 11 meals and 448 km per shift cycle of two days followed by two nights. Given that commuting for each of those shifts would not be practicable, this represents a journey to the commencement and from the cessation of each period of consecutive shifts in Adelaide. That is the minimum that the Award prescribes by way of the shift cycle definition and its appearance in cl 15.5.3(a)(iv).
That minimum is 448 km of mileage allowance and 11 meals. The 11 meals is over a four day period of consecutive shifts, which would reasonably measure three per day within the shift cycle and one before and after for travel time.
Applied to the consecutive shifts worked at Port Pirie, there is a single journey to the commencement of the shifts and another back at the conclusion of the shifts. The 448 km mileage allowance accords with this return journey. Noting the purpose of the travel allowance, and the inconvenience and injustice to employees to be compensated at half the rate for travel on transfer in one direction compared to the other direction, I find that the minimum Award entitlement to milage allowance for travel from the Adelaide metropolitan area for consecutive day and night shifts of duty at Port Pirie is 448 km at the prescribed rate.
Noting the purpose of the meal allowance is to compensate for the costs of meals away from home when travelling for duty, I find the minimum Award entitlement for that period, 24 hours and approximately 5 hours of travel, is five meals, representing three meals during the 24 hours of duty and one meal each way for the travel.

[233]

Mr French's claim differs from that of Mr Sexton and Mr Abrams in that his offer of employment was stated to be on condition that upon successful completion of his recruit training on 6 July 2012, he would be initially posted within the metropolitan area and then posted to the Port Pirie Fire Station from 21 December 2012 where he would be required to serve for four and a half years with no travel expenses paid.
He accepted the offer on those terms and that is what then happened.
There is no difficulty with the condition in his employment contract whereby he agreed to first be assigned to a metropolitan station, then to serve at Port Pirie. However, the condition in his employment contract that he would not be paid travel expenses for his duty at Port Pirie could not deprive him of an Award entitlement to travel allowance.
While a contract of employment can provide for conditions and entitlements more favourable to an employee than the Award, "[a]n award prevails over a contract of employment to the extent the award is more beneficial to the employee than the contract"[163]
Mr French's initial posting, the shift and station to which he was initially assigned and when and where he commenced his operation duties, was the Adelaide Fire Station on 11 July 2012.
Consequently, on the interpretation that I have found of the application of cl 15 of the Award, it is from that time and location that cl 15.5.3(a) entitled him to allowances for travel on transfer.
Against this, the respondent argued that Mr French's assignment to the Adelaide Fire Station was a temporary transfer as it was always intended that he would serve his first five years at Port Pirie, such that travel allowance was not payable once he commenced duty at Port Pirie.
The assignment to Adelaide Fire Station was not a transfer because it was Mr French's initial posting following completion of his recruit training.
He did not commence at Port Pirie and then transfer to Adelaide for five months before returning to Port Pirie.
Consequently, Mr French's change of shift from Adelaide Fire Station to Port Pirie Fire Station involved a transfer from Adelaide to Port Pirie within the terms of the Port Pirie transfer clause. The fact that the timing of that transfer had been pre-determined in his contract of employment did not deprive Mr French of the entitlement to travel allowance as prescribed in the Award. The Award entitlement to travel allowance on transfer from Adelaide to Port Pirie is more beneficial to Mr French than the contract term of transfer without payment of expenses. So, the Award prevails.
The alternative argument of the respondent was that Mr French's acceptance of the contractual term that he serve at Port Pirie for four and a half years after his initial posting to Adelaide, was a transfer at his own request and brought him within the exception in cl 15.5.3(a)(vii), disentitling him to travel allowance.
For the reasons I have given earlier, merely accepting a condition required by the employer does not make that condition a request of the employee. Mr French's evidence was that although he agreed to it as a condition of his employment offer, he did not request a transfer to Port Pirie, and that he would have preferred to remain working in the Adelaide metropolitan area.
In relation to Mr French I find as follows:
- 717.1 He was assigned to A Shift at the Adelaide Fire Station as his initial posting upon his successful completion of his recruit training, commencing operational duty there on 11 July 2012.
- 717.2 He was transferred from the Adelaide Fire Station to the Port Pirie Fire Station commencing at Port Pirie on 21 December 2012.
- 717.3 He retained his residence in the Adelaide metropolitan area upon his transfer.
- 717.4 His transfer to Port Pirie was for a term of 4 years and 7 months, in accordance with a term of his employment contract to which he agreed.
- 717.5 His agreement to that term of his employment contract was not a transfer to Port Pirie at his own request.
- 717.6 The term of his employment contract which purported to exclude his entitlement to travel allowance upon his transfer to Port Pirie was ineffective as the Award entitlement to travel allowance was more beneficial to him and prevailed over the employment contract.
- 717.7 Mr French was entitled to the travel allowance prescribed at cl 15.5.3(a)(iv) of the Award, for the travel that he undertook for the periods of duty that he worked at Port Pirie between 21 December 2012 and his transfer back to Adelaide in July 2017.
Any order that he now be paid those allowances would require an extension of time, which I will refer to later in these reasons.

[234]

Prior to his appointment as a Firefighter, Mr Bentley was employed as a Retained Firefighter assigned to the Kapunda Fire Station, which was operated by Retained Firefighters only.
The Award does not currently and did not historically cover the employment of Retained Firefighters, except for the additional compensation in Schedule 1. Their conditions have been included in Part C of each enterprise agreement since 2009.
Mr Bentley was offered employment as a full time Firefighter conditional upon him being posted to Port Pirie for the first five years following successful completion of his recruit training, and upon his resignation from his position as a Retained Firefighter upon his appointment as a Firefighter.
It was not clear from the evidence why he was required to resign from his position as a Retained Firefighter. As a Retained Firefighter he was an employee of the SAMFS appointed pursuant to the FES Act. As a trainee Firefighter and then as a Firefighter he was also an employee appointed pursuant to the FES Act, although in his new role involved appointment to a new position subject to the terms and conditions of the Award. He was at all relevant times an employee of the SAMFS.
Consistent with those terms of employment, he was initially posted to the Port Pirie Fire Station and commenced his operational duties there on 22 December 2015. Throughout the duration of his placement at Port Pirie, he maintained his residence at Freeling.
The coverage of his employment by the Award commenced upon his employment as a trainee firefighter, and his operational duties for which the Award provides penalty payments and allowances commenced when he started his first shift at Port Pirie Station on 22 December 2015.
Consequently, for the purposes of the Award, he was not transferred from Kapunda to Port Pirie. Nor was he transferred to Port Pirie from the Angle Park Training Centre. Consequently, he was not entitled to the travel allowance that he claims pursuant to cl 15.5.3(a)(iii) of the Award.

[235]

As noted earlier when referring to his evidence, Mr Day was a Senior Firefighter stationed at Elizabeth Fire Station prior to his appointment to the rank of Station Officer effective 11 February 2011. That appointment required him to transfer to Port Pirie Fire Station. In accordance with the above interpretation of the Award, I find that the provisions of cl 15.5.3(a) were not excluded by this appointment and that his appointment to the position of Full Time Station Officer (Shift Work) at Port Pirie was a transfer from the Adelaide metropolitan area to Port Pirie pursuant to c1 5.5.3(a)(ii) and (iv).
The next question raised by the respondent's argument is whether Mr Day was transferred at his own request. It was the SAMFS which advertised, selected and filled the Station Officer positions at Port Pirie for its own operational reasons. Mr Day responded to that process and accepted the position then offered. His actions were voluntary, but he did not instigate the process which saw him relocated there. This was not a situation of an officer requesting transfer to Port Pirie and the SAMFS accommodating that request.
The respondent has argued in the alternative that if Mr Day's appointment to Port Pirie was a transfer for the purposes of cl 15.5.3(a) and it was at his own request then he is not entitled to the travel allowance because he had not completed two years at the location that he was transferring from.
The respondent argues that if Mr Day was transferred to Port Pirie, it was from the Adelaide Fire Station to which he had been administratively transferred from Elizabeth on the day of his appointment as a Station Officer, for the period from 12 February 2011 to 5 March 2011. During this time he was either on leave or on out duty attending a training course. He did not work any shifts at Adelaide Fire Station.
To the extent that it is necessary to address this issue, I find that the transfer by the SAMFS of Mr Day to Adelaide Fire Station was no more than an administrative device to account for the gap between his last shift at Elizabeth and his first shift at Port Pirie. As he did not attend for any duty at the Adelaide Fire Station during that time, it was not a station that he could be transferred from for the purposes of cl 15.5.3(a).
As he completed more than two years at Elizabeth Fire Station, he was not precluded from entitlement to the Port Pirie travel allowance.
As Mr Day maintained his residence in Greenock, which is outside the Adelaide metropolitan area, he was entitled to mileage allowance calculated by reference to the distance between Mr Day's residence and the Port Pirie Station which exceeds the distance between Mr Day's residence and the Adelaide headquarters, for the period 7 April 2011 and 5 March 2015.
For the period between 28 May 2014 and 5 March 2015, Mr Day's claim is within the six year time limit imposed by s 31 of the FW Act. An extension of time is required for any order for payments due prior to 28 May 2014.

[258]

The applicants relied on two counter arguments.
First, they argued that s 167 of the FW Act did not extinguish the cause of action for the money claims, granting only a defence which must be pleaded. The right to bring a claim remained.
Secondly, they argued that s 48 of the LOA Act granting power to extend time applied concurrently with s 167(2)(a) of the FW Act. So, they say, it is not a matter of retrospective application of the power granted to the court by the repeal of s 167(2)(a). The Court has had the power all along through the LOA Act.
Given that the claim of Mr Day extends to back to 7 April 2011 it is appropriate that I consider this argument.
Key to the differing arguments of the parties is the decision of the Full Court of the South Australian Industrial Relations Court in Sanchez,[167] determined in 2008 when s 167(2)(a) was operative.
The respondent argues that Sanchez is squarely on point and as such is an authority binding on me in this matter.
The applicant argues that Sanchez is not binding on me as it was a decision per incuriam. They refer to another decision of the Full Court of the Industrial Court in R v Prince Alfred College (PAC),[168] which they say is equally binding and more consistent with other authorities.[169] They argue that with two conflicting authorities on the same point, I must decide which to follow, that I should not follow Sanchez.
In PAC, decided in 1979, the Court at first instance had refused an application to extend time for a claim for reinstatement pursuant to s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 ('the ICA Act'). The employee then filed a notice of appeal and, as that was also out of time, applied for an extension of time to institute the appeal.
The Full Court granted the extension of time for the appeal, holding that the ICA Act did not provide power to extend time for an appeal but that s 48 of the LOA Act did apply to grant the Court power to extend the time for instituting the appeal.
In Sanchez, the Full Court considered a reference from an industrial magistrate on questions of law. The reference arose from an application for an extension of time for a money claim which sought to rely on s 48 of the LOA Act as providing power to the Court to extend time notwithstanding the exclusion in s 167(2)(a).
The questions of law were:

[260]

2.1. Is the limitation of time for bringing such claims prescribed by the Limitation of Actions Act or the Fair Work Act; and
- 2.2. Does s 48(1) or s 48(3) apply to a monetary action based upon a claimed Award entitlement?

The Full Court held that the answer to question 1 was no, and therefore it was unnecessary to answer the following questions.
Its reasoning, in summary, was that the power to extend time in s 48 of the LOA Act was limited to the actions identified in s 35 of that Act. The applicant in that matter was relying on his money claim falling within s 35(a) "actions founded upon any simple contract express or implied".
The money claim in Sanchez was, as in this matter, a claim for a sum due under an award. The Full Court considered this not to be the same as one due under a contract of employment and that the award was "in context "the factum" upon which the statute giving it effect operates". It held that a money claim was a statutorily created cause of action, not an action founded upon any simple contract, and does not fall within s 35(a) of the LOA Act. It held that s 167(2)(a) of the FW Act excluded access to the LOA Act for all claims described in s 14 of the FW Act.
It distinguished the decision of the Supreme Court in PAC as being concerned with an extension of time to institute an appeal and where the Supreme Court concluded that s 17 of the ICA Act did not deal with appeal time limits and so s 48 of the LOA Act could be relied upon. This, it held, was distinct from the express exclusion of power to extend in s 167(2)(a) of the FW Act.
The applicants pressed the argument that the decision in Sanchez was wrong, having been decided per incuriam. They submitted that I should not follow it and should determine the issue afresh.
The respondent countered that the applicants had not identified the factors in Sanchez that would render it per incuriam. It pressed on me that the principle of per incuriam sets a very high bar as to when a court should ignore a decision that is otherwise binding.
It said that the principle provides that if a decision would have been different had it not been made in ignorance of a statutory provision or an authority, then that ignorance qualifies the need to follow that decision.
It requires the provision or authority that has been ignored to be identified with specificity. A wrong application of a decision which has been considered by the Court does not come within the concept.
The respondent submits that the Court in Sanchez considered and distinguished the PAC decision. In relation to the relevant statutory provisions, the Court identified and considered them all.
The respondent says the other decisions referred to by the applicants, including Redapple,[170] concerned different provisions and did not need to be brought to the attention of the Full Court, nor were any of the other authorities cited by the applicants of such relevance that they would have resulted in a different decision.
I do not consider the authorities in PAC and Sanchez to be conflicting. The Court in Sanchez specifically considered and distinguished PAC.

[265]

Consequently, I must follow the decision of the Full Court in Sanchez. Accordingly, the argument of the applicants that s 48 of the LOA Act applied to money claims pursuant to then s 14 of the FW Act, and concurrently with s 167(2)(a) of the FW Act must be rejected.
Further, the reasoning in that case leads to the same conclusion that I must reject the argument of the applicants that s 48 of the LOA Act applies to the money claims in this matter pursuant to s 9 of the FW Act. Section 9 is in relevantly identical terms to s 14 at the time of the Sanchez decision.
In short, when considering the extension of time issue, I must do so on the basis that the power to grant an extension of time for money claims commenced in this jurisdiction via s 61 of the SAET Act on 1 July 2017, following the repeal of s 167(2)(a) of the FW Act on 30 June 2017.
This then leaves the argument of the applicants that the power granted by s 61 of the SAET Act extends to the commencement of the right to bring an action, because s 167(2)(a) did not deprive the Court of jurisdiction to entertain the claim but limited the remedy available subject to the defence being raised.
They argue that as s 167(2)(a) did not extinguish the right to being an action, it is not a matter of reviving a cause of action which had been lost.
They argue that it is a matter of construction as to whether a provision providing for an extension of time has application to existing rights. In this case they argue that the text of s 61(2)(a) specifically addresses non-compliance and that the expression "may be authorised even though the time for complying has passed" is directed precisely to the circumstances such as those of the applicants where a claim cannot be commenced because of lapse of time. They say that s 61(2)(a) has the prospective effect of permitting the commencement of a claim with respect to existing and subsisting rights.
The respondent pressed the argument that Sanchez established s 167(2)(a) prevented the Court from extending time for a money claim up until 30 June 2017, when it was repealed. At that date the Court did not have the power to extend the time within which a money claim must be made. Consequently, the right to claim for sums payable before 1 July 2011 expired on 30 June 2017.
Absent a clear expression to the contrary, the power that the Court obtained on 1 July 2017 to extend time applies only to claims made from that date forwards in relation to sums payable from 1 July 2011.
The respondent relied on the presumption that a legislative amendment is presumed not to be retrospective in its operation where it affects existing rights and obligations.[174] That presumption may be displaced by clear parliamentary intent. While there may be retrospective application where the amendments are merely procedural in nature, that is not the case here.
The respondent relied on the Full Court of the Supreme Court of South Australia in Van Vliet v Griffiths,[175] which considered amendments to s 48 of the LOA Act.
Particularly relevant to the argument in this matter are the words of King CJ:

[273]

The applicants submit that a particularly significant factor in the reason for their delay is the conduct of the SAMFS in representing to them that they had no entitlement to the claimed allowances while at the same time representing that it was complying with the Award.
In relation to the recruit firefighters generally, I have found that travel allowance pursuant to cl 15.5.3(a) of the Award becomes payable from the time and place at which they commenced their operational duties. That is, from the shift and station to which they were first allocated following their successful completion of the recruit training course and their appointment as Firefighters class 4 pursuant to the Award. For those initially posted to Port Pirie Fire Station, the information provided to them by the SAMFS in their offers of employment and their recruit course was correct. Consequently, there was no misrepresentation to them about their entitlement to the allowances.
In relation to Mr French, who was initially allocated to a shift at the Adelaide Fire Station and later transferred to Port Pirie, I have found that he was entitled to Port Pirie travel allowance for the shifts that he then worked at Port Pirie. The representations to him by SAMFS that he was not so entitled were incorrect. It was argued on his behalf that as he was new to the SAMFS, it was reasonable for him to have relied on what he was told by his new employer, until he was alerted by another Firefighter to the possibility of that information being incorrect.
It was submitted that he would suffer hardship if an extension of time were not granted, but there was no evidence from him of hardship.
In relation to the Promoted Station Officers, given that I have found that they were transferred and entitled to the allowances in cl 15.5.3(a), the representations to them by the SAMFS that they were not so entitled were also incorrect.
The argument on their behalf was that it was reasonable of them to rely on the representations of the SAMFS at the time, and until such time as they were alerted to the possibility of their entitlement when they heard that the Station Officers appointed to Port Pirie in 2019 were receiving travel allowances. It was also submitted on their behalf that it was reasonable of them to wait on the outcome of correspondence between the UFU on their behalf and the SAMFS about their claimed entitlement, commencing February 2019, before filing their claims at various dates commencing in May 2020.
In relation to prejudice to the respondent, the applicants argue that the respondent has been obliged in the proceedings to respond to the same issues and evidence for the late filed money claims as for the other issues in dispute. The ability of the respondent to address the claims, in the context of the matters being essentially a question of interpretation rather than disputed facts, is demonstrative of the lack of prejudice as to the conduct of the proceedings.
The applicants argue that there is no relevant prejudice to the respondent if the extensions of time are granted. They say that it cannot be a relevant prejudice for the respondent to now be required to make payment of allowances that it did not make because of an erroneous view of the law.
The respondent opposed the grant of any extension of time, with the following arguments:
- 820.3 The applicants were informed that their employment was in accordance with the Award and it is reasonable to expect that they consider their entitlements thereunder.
- 820.4 They accepted their postings to Port Pirie on the express understanding that no allowances were payable.
- 820.5 The communication to Mr French that he was not entitled to the allowances was the result of an understanding between the SAMFS and the UFU that the travel allowances were not payable to recruits.
- 820.6 The UFU has at all times been aware of which employees were posted to Port Pirie Fire Station and the basis of those assignments.
- 820.7 The delay in commencing proceedings had prejudiced the respondent's ability to collect historical documentary evidence, contact witnesses and rely on evidence of events that occurred more than a decade ago.
- 820.8 That the delay in commencing proceedings had prejudiced the SAMFS ability to clarify the terms of the Award or otherwise structure postings to Port Pirie in a manner which took account of any unrecognised liability to pay entitlements.
- 820.9 The claims of the applicants involve an unanticipated and significant financial burden on the SAMFS.

[277]

In relation to the recruit firefighters, that confidence was generally well placed. The exception is Mr French, whose circumstances were outside the ordinary and where there is no evidence of the UFU being aware of or in agreement with the mistaken view taken by the SAMFS in relation to his entitlement to travel allowance.
The issue of unquestioning reliance by the Promoted Station Officers on the correctness of the terms of appointment offered to them has a different quality. They were not new to the SAMFS. None of them nominated Port Pirie as their station of preference. There was no evidence orally or in the evidence of the SAMFS of an agreement with the UFU that travel allowance would not be payable if employees accepted promotion on condition that they serve four years at Port Pirie. It was open to the applicants to check the terms of the promotional offer before they applied or before they accepted, as did the transferred Station Officers in 2019, but none of them did.
In simple terms, they did not claim initially because they did not know they could, having accepted what they were told without themselves checking the Award, contacting the UFU or obtaining independent advice.
Once alerted to the possibility of being entitled to the allowances, the applicants submit that it was reasonable for them to wait on the outcome of UFU communications on their behalf with the SAMFS before filing their claims.
This is a more problematic submission. The UFU was clearly aware of the six year time limit applying to money claims and yet the applications were not filed promptly once the claims were made. The correspondence in relation to the promoted station officers trailed backwards and forwards between the SAMFS and the UFU for 15 months as an industrial dispute, including a reference to the Single Bargaining Centre which could only provide an opinion, before the first applications were filed on the money claims. There was no evidence from the UFU, but the circumstances lead to the pressing conclusion that this was a forensic choice by or on behalf of the applicants. Such choices cannot assume that an extension of time is there for the asking.

[280]

As noted by the Full Court in Harradine, prejudice to the respondent from the delay is always material and can be presumed by the fact of the expiry of the limitation date, but if the respondent wants to rely on specific prejudice, it is normally incumbent on it to provide evidence.
The SAMFS evidence was that SAMFS management relied on what it understood were arrangements and interpretations of the Award which were agreed with the UFU, up until February 2019 when it was put on notice of the Station Officer claims by the UFU.
This evidence was not challenged and there was no contrary evidence from the UFU. The extensive documentary evidence of the consultative arrangements between the SAMFS and the UFU lend substance to the SAMFS claim.
Either the SAMFS was mistaken about the agreement of the UFU, or the mistaken view was shared by the UFU.
I accept that, up until it was put on notice of the Station Officer claims in February 2019, the SAMFS conducted itself on a mistaken interpretation of the Award, in circumstances where that view was not challenged by the UFU or any of the applicants in these proceedings.
Given that the hearing of these claims proceeded by consent on the question of interpretation of the Award, where the relevant facts of each applicant's claims were not in dispute, and the historical documentary evidence was extensive, I am not persuaded that there has been any unfairness to the respondent in the conduct of the proceedings.
The two arguments of prejudice which do require consideration are the last two of their list of seven. These are that:
- 839.3 the delay in commencing proceedings prejudiced the SAMFS ability to clarify the terms of the Award or otherwise structure postings to Port Pirie in a manner which took account of any unrecognised liability; and
- 839.4 the claims of the applicants involve an unanticipated and significant financial burden on the SAMFS.
I accept that both of these are factors which are a material prejudice to the respondent, in that the SAMFS was not put on notice by the UFU or any of the applicants in a timely manner that its interpretation of the Award was erroneous, when the prior conduct of the applicants and the UFU was one of acceptance of that interpretation.
Whether or not an extension of time is granted, both of these are consequences for the SAMFS for the six years for which the claims are within time. The question is whether the interests of justice require that they extend back even further.

[281]

The industrial context which I have referred to throughout these reasons is a significant factor. The SAMFS referred to the Award in its correspondence with the applicants in relation to their appointments and their entitlements, and was consistently in communication with the UFU through a range of consultative mechanisms in the course of which it expected any disagreement to be raised.
The primary prejudice suffered by the respondent in relation to the extension of time arises from the SAMFS not being on notice that the applicants and the UFU did not agree with an interpretation of the Award which it understood was agreed.
The first notice of the Station Officers claims arrived to the SAMFS by way of the email from Mr Ferguson on 12 February 2019 attaching travel allowance claims on behalf of himself, Mr Day and Mr Barr.
After these claims were dismissed by way of email from Ms Somerville back to Mr Ferguson on 18 February 2019 denying any breach of the Award, there then followed the correspondence from the UFU on 26 February 2019, which could have left the SAMFS in no doubt that its interpretation was being challenged.
Having been thus put on notice, SAMFS had the opportunity to mitigate any further prejudice by doing that which it argues it would have done had it been on notice earlier - clarifying the terms of the Award or otherwise structuring the postings to Port Pirie to take account of any unrecognised liability to pay entitlements.
The correspondence between the UFU and the SAMFS in relation to the claims tells of a good faith attempt by the applicants and the UFU to understand the rationale for the SAMFS position and to engage with the dispute resolution procedures in the Award to reach an agreed resolution. Only when that failed did the applicants file their claims.
I have commented that the applicants made a forensic choice to pursue their claims by way of the UFU dispute when the time limitation clock on their money claims was clearly ticking. Their failure to file their claims promptly and minimise the prejudice to them of the time limit is a factor weighing against the grant of an extension of time.
On the other hand, once on notice, the SAMFS did not act promptly to mitigate any adverse consequences to itself while the dispute was resolved and/or the claims determined. This tells against the prejudice that it claims in relation to the time period for which remedy should be considered.
While the UFU initially sought to resolve the matter by correspondence and by way of the dispute settling procedures in cl 9 of the Award, neither it nor the SAMFS sought to refer that dispute to the SAET pursuant to cl 9.2 of the Award and s 11 of the FW Act to expedite its resolution. There is no reason why that could not have been done at the same time as the money claims were filed.
Although it is finely balanced, there was substantial prejudice to the respondent of the delay in the notice of the challenge to its interpretation of the Award, but only until it was given that notice. Once it was on notice it was in a position to act promptly to mitigate any further prejudice to itself.
I make no distinction between the notice about the claims of the Promoted Station Officers and the newly recruited Firefighters. Both involve unexplained delay between learning of the possibility of claim and filing the claim. Both are about interpretation of the same clause of the Award, cl 15.5.3(a).
However, the applicants were all members of the UFU, which signified its awareness of the time limitation applying to money claims in its correspondence to the SAMFS of 22 March 2019 and in its Wordback newsletter to members on 7 August 2020.
While mere membership of a union does not mean that appropriate advice was given or that an applicant was following advice, none of the applicants gave evidence about why they had not filed their claims earlier. There was no evidence in chief about it nor any cross examination about it.
As noted earlier, the onus is on the party applying for the extension of time to prove that the interests of justice require it be given. Where there is accepted evidence that an applicant acted promptly to file a claim upon becoming aware of the grounds, this is a significant factor. However an unexplained delay is also a significant factor pointing away from the grant of an extension.
As noted above, an extension to a legislated time limitation is not simply there for the asking. Where an applicant has not acted promptly upon becoming aware of the grounds for the claim, the reasons for that delay are properly the subject of evidence.
Although it is finely balanced, given the good faith attempts by the UFU to resolve the claims by way of industrial dispute procedures in the Award, and the notice that gave to the SAMFS in March 2019, the simple reality is that these are money claims with a legislated time limit and onus on the applicants to make their case for the extension they are seeking. In my view, by failing to provide evidence of the reasons for that part of the delay which followed them becoming aware of possible grounds to claim, they have not met that onus.
Consequently, the applications for extension of time are denied.

[282]

The entitlement to the allowances in cl 15.5.3(a) of the Award starts from the time and place that newly appointed Firefighters commence their operational duties.
The limitation on payment of the allowances in cl 15.5.3(a) is limited only where an employee requesting a transfer has not worked for two years at the station from which they are requesting the transfer.
The Award contains no explicit exclusion from the entitlement to the allowances in cl 1.5.53(a) where the transfer arises from a promotional or lateral appointment pursuant to s 29(2) of the FES Act.
There is no necessary implication to be inferred that the Award excludes the entitlement to the allowances in cl 15.5.53(a) where the transfer arises from a promotional or lateral appointment pursuant to s 19(2) of the FES Act.
Where a transfer occurs as a result of a first preference nomination via the Station Preference System, this may qualify as an own request pursuant to cl 15.5.3(a)(vii), noting that it only excludes the entitlement to travel allowance if the move is within two years at the previous posting.
Where a transfer is from Adelaide to Port Pirie, the allowances come to an end according to either of the two criteria in cl 15.5.3(a)(vi), which does not include nomination via the Station Preference System. The Station Preference System is an administrative system which cannot override the terms of the Award.
The shift cycle in cl 3.14 of the Award is not worked at Port Pirie Fire Station.
The shift cycle worked at Port Pirie is a system of operation that is a variation to the day-cycle duty-cycle described in cl 16.1.1 (b), as allowed by consent between the SAMFS and the UFU pursuant to cl 16.1.1(c).
The agreement between the SAMFS and the UFU pursuant to cl 16.1.1(c) includes agreement as to how travel allowance will be paid to employees transferred to work at Port Pirie. That agreement cannot result in payments less than the Award minimum.
Given that the shift cycle defined in cl 3.14 does not reflect the shift cycle worked at Port Pirie, the minimum must be established by considering the presumed purpose of the clause, which is to compensate for the additional cost of transport and meals away from home to attend for a period of duty. The application of the term shift cycle to the allowances prescribed in cl 15.5.3(a) upon transfer to the Adelaide metropolitan area results in mileage allowance per the deemed return journey distance for the sequence of shifts. When translated to transfer to Port Pirie, to meet the minimum Award standard it must also be for the deemed return journey distance for that sequence of shifts that are worked there.
The power for SAET to extend the time limitation in s 31 of the FW Act is limited to that provided by s 61 of the SAET Act and Rule 8 of the SAET Rules. Section 48 of the LOA Act does not apply to those claims.
The power of the SAET to extend the time limitation in s 31 of the FW Act was extended prospectively upon the repeal of s 167 of the FW Act on 1 July 2017. There is no power to extend time on claims that were statute barred on or before 30 June 2017.
The power to extend time pursuant to s 61 is discretionary, to be exercised where it is required in the interests of justice.
The applicants have not met the onus of proving that the interests of justice require an extension of time for their money claims.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (374 paragraphs)

Ferguson & Ors v Chief Executive, Attorney General's Department [2026] SAET 2 (7 January 2026)

Parties

Legislation Cited (7)

Cases Cited (9)