New South Wales Fire Brigade Employees' Union v New South Wales Fire Brigades

Industrial Relations Commission (NSW)|2007-09-24|Before: Walton J, Harrison DP, Grayson DP, Mr J

CITATION: New South Wales Fire Brigade Employees' Union v New South Wales Fire Brigades [2007] NSWIRComm 265

APPELLANT New South Wales Fire Brigade Employees' Union PARTIES: RESPONDENT New South Wales Fire Brigades

CORAM: Walton J Acting President; Harrison DP; Grayson DP

LEGISLATION CITED: Industrial Relations Act 1996

Campbells Cash & Carry Pty Ltd v National Union of Workers NSW Branch (No 2) (2001) 106 IR 429 CASES CITED: Crown Employees (NSW Fire Brigades Firefighting Staff) Award (2005) 352 IG 270 Re SRA Firefighting Award 2001 (2002) 122 IR 13 Zoological Parks Board of NSW v Australian Workers' Union (2004) 35 IR 56

APPELLANT Mr J Nolan of Counsel Ms G Lawrence New South Wales Fire Brigade Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of Counsel Mr S Henderson New South Wales Fire Brigades

CORAM: WALTON J, Acting President HARRISON DP GRAYSON DP Friday 2 November 2007

New South Wales Fire Brigade Employees' Union and New South Wales Fire Brigades

Application by New South Wales Fire Brigade Employees' Union for leave to appeal and appeal against a decision of Commissioner Stanton given on 21.6.2007 in matter no. IRC 3456 of 2006

1 This is an application by the New South Wales Fire Brigade Employees' Union ("the Union") for leave to appeal and, if granted, appeal against a decision of Stanton C in Re Notification Under Section 130 by the New South Wales Fire Brigade Employees' Union of a Dispute with New South Wales Fire Brigades re Non Payment of BA/Hazmat Allowance to Member [2007] NSWIRComm 1033. 2 In the decision appealed, from the Commissioner was required to determine whether a particular employee, Senior Firefighter (SFF) Dives, in the circumstances of injury and return to work on restricted duties, should have received payment of the BA/Hazmat allowance prescribed by the Crown Employees (NSW Fire Brigades Firefighting Staff) Award (2005) 352 IG 270 ("the Award") during an engagement at the BA/Hazmat section of the New South Wales Fire Brigades whilst working under that disability. 3 The matter before the Commissioner proceeded on the basis of an agreed statement of facts. Neither party brought any additional evidence. 4 The Commissioner identified the background circumstances of the matter at paras [6], [7], and [8] of his decision in the following terms: 6 The Newcastle BA/Hazmat Section is, for certain operational reasons, co-located at the Newcastle Fire Station ('Station 260') in Cooks Hill. According to the respondent, the Section is separately funded through its Hazardous Materials Response Unit Cost Centre.

7 SFF Dives joined the respondent on 30 June 1989 as a Firefighter recruit. He was subsequently permanently assigned and for the purposes of the Award, "attached to" Station 260.

8 Between December 2005 and February 2006, SFF Dives was absent on workers compensation. Between February and April 2006 he was placed on light and alternate duties at Station 260 undertaking office and project work. He also provided some assistance to inspectors. The respondent later realised SFF Dives was BA/Hazmat qualified and subsequently placed him in the Newcastle BA/Hazmat Unit to service equipment and undertake other duties consistent with his medical restrictions. He resumed normal duties at Station 260 on 8 April 2006. 5 SFF Dives was permanently assigned to Fire Station 260. He had been previously rostered to undertake alternate duties at the BA/Hazmat section from 22 April 2005 to 22 May 2005 (whilst recovering from surgery unrelated to the circumstances giving rise to the restricted duties). For that period he was paid the BA/Hazmat allowance in addition to the Major Aerial and Rescue allowances (which the Union contends is the proper application of the Award). 6 It is not contested that an employee attached to Station 260 qualifies for the Major Aerial Allowance ($40 pw) and Rescue Allowance ($34.76 pw). These allowances are paid weekly and not claimed on the periodic time sheet. 7 The BA/Hazmat Allowance is $80 pw and also paid weekly. It is not claimed on the periodic time sheet. SFF Dives was denied payment for a later period of service in the BA/Hazmat section whilst on light duties. 8 In the decision at first instance, the Commission concluded that SFF Dives was not entitled to payment. It is helpful to restate those aspects of the Commissioner's decision central to this appeal (paras [47] - [57]): 47 SFF Dives was entitled to payment of the major aerial and rescue allowances on the grounds that he met the necessary qualifications governing their payment including the requirement that he was "attached to" Station 260, being a fire station accorded primary rescue station status with major aerial appliance capability.

48 There is no evidence before the Commission to support the proposition that SFF Dives had been transferred to the Newcastle BA/Hazmat Section. Rather, on the material before the Commission, SFF Dives was placed in the BA/Hazmat section "to service equipment etc. as long as the duties were consistent with the restrictions placed on his medical certificate" following a work related injury .

49 The nature of the light duties work SFF Dives undertook within the BA/Hazmat section included the service and repair of damaged airsets, the periodic maintenance and testing of airsets, face masks and fully encapsulated suits and database entry. There was also agreement that SFF Dives' medical restrictions included a prohibition on lifting above 5 kg with his left arm for the period 6 February to 4 March 2006 and 10 kg from 5 March 2007. 50 SFF Dives was first placed on light duties at Station 260 in a sedentary position to undertake project work, office duties and provide assistance to inspectors. He was only utilised in the BA/Hazmat Section to service equipment when it was realised that he was qualified to do so, subject to his medical restrictions. Clearly, the Union's claim will turn on whether SFF Dives was "attached to" the Newcastle BA/Hazmat Section within the meaning of cl 6.7.3 of the Award.

51 On the evidence before the Commission and within the plain and ordinary meaning of cl 6.7.3 of the Award, SFF Dives is not an employee who is permanently assigned to the Newcastle BA/Hazmat Section and nor can he be classified as a relieving employee whose base station is the Newcastle BA/Hazmat Section and is performing duty at some other location.

52 For its part, the Union vigorously contends SFF Dives was, within the plain and ordinary meaning of cl 6.7.3, "attached to" the Newcastle BA/Hazmat Section on the grounds that he was either a relieving employee with a base station elsewhere (Station 260) who was performing duty at the Newcastle BA/Hazmat Section or, in the alternative, was an employee who was permanently assigned elsewhere (Station 260) but was performing an Outduty at the Newcastle BA/Hazmat Section.

53 The Award restricts the performance of an "Outduty" to a period of duty where the Firefighter commences or ceases at a station other than the station where the Firefighter normally reports for duty. [emphasis added]. Clause 4, Definitions defines the relevant provision as follows: "Outduty" means a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty. 54 The term "normally reports for duty" contained in Clause 4 of the Award ordinarily infers the notions of regularity and general custom according to a rule or rules, whereas the expression "permanently assigned " referred to variously in cl 6.7.3 expresses a fixed and determined location of work.

55 Having regard to the principles of construction and plain and ordinary meaning of the actual words used in the Award, SFF Dives was not "attached to" the Newcastle BA/Hazm a t Section by reason that he was a "relieving employee" nor was he "permanently assigned" at Station 260 and performing an Outduty at the nearby BA/Hazm a t section.

56 The purpose of alternate and light duties is to facilitate rehabilitation and enable an injured worker to undertake appropriate work consistent with that worker's medical restrictions. In the Brigades' view, as Ms Anderson submitted without challenge: SFF Dives was not able to undertake his full duties at Station 260, nor was he able to undertake full duties within the BA/Hazmat Section if he was there to perform an Outduty because his injuries and medical restriction would not have allowed him to do so. 57 On the material before the Commission, SFF Dives' normal and regular place and location of employment while undertaking his alternate and light duties was the Newcastle BA/Hazmat Section. Accordingly, as SFF Dives "normally reports for duty" at the Newcastle BA/Hazmat Section , the plain and ordinary meaning of those words set out in cl 4, Definitions operate so as to prevent him from performing an Outduty as claimed by the Union. [emphasis added] Relevant Provisions of the Award

9 The key provisions of the Award (as varied by Grayson DP on 11 April 2006 (361 IG at 463)) in the present matter are cl 6.6.5 and 6.7.3, which are in the following terms in cl 6.6 and 6.7 respectively:

6.6 Except as provided for in this subclause, or in subclause 6.7, in addition to the rates of pay prescribed in Tables 1.1 to 1.3 & 2.1 to 2.3 of Part D, employees, where applicable, shall be paid: 6.6.5 The BA/Hazmat Allowance set at Item 5 of Table 3 of Part D, per week, for Firefighters and Officers who are qualified for and attached to the BA/Hazmat sections at Sydney, Newcastle or Wollongong. … … 6.7 Exceptions, Explanations and Method of Adjustment 6.7.3 The term "attached to" within this Clause shall include employees who are permanently assigned to the relevant station or section, Relieving Employees whose base station is the relevant station or section and who are performing duty at some other location, Relieving Employees with base stations elsewhere who are performing duty at the relevant station or section, employees who are permanently assigned to the relevant station or section but who are performing an Outduty at some other location, employees who are permanently assigned elsewhere but who are performing an Outduty at the relevant station or section but subject to subclauses 6.6.7, 6.6.8, 6.6.9, 6.6.10 and 6.6.11 shall not include employees who perform duty at the relevant station or section pursuant to Clause 9, Overtime. 10 There are a number of other relevant provisions.

11 The expression "Outduty" is defined in cl 4 of the Award, as follows: " Outduty " means a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or cease duty at a station other than the station where the Firefighter normally reports for duty.

12 Clause 12.17, Performance of Outduties, of the Award provides: 12.17.1 An employee cannot be directed to perform more than eight (8) outduties in any Calendar year. 12.17.2 Notwithstanding the provisions of 12.17.1, an employee may elect to perform more than eight (8) outduties in any Calendar year. 13 The Respondent also submitted that if it were held that SFF Dives was, in fact, engaged in an Outduty, he would also be entitled to payment of a relief allowance pursuant to cl 12.1.2, which is relevantly in the following terms: Clause 12 - RELIEVING PROVISIONS

12.1 The provisions of this clause shall only apply to: 12.1.1 Relieving Employees, as defined in Clause 4, when such employees work a rostered shift at either the employee's base station/location or performs a relief duty at another station/location; and

12.1.2 Other employees when such employees perform an "Outduty", as defined in Clause 4. … … 12.6 "Base rate" payment. 12.6.1 A "base rate" of an amount set at Item 16 of Table 3 of Part D shall be paid to:

12.6.1.1 a Relieving Employee for each rostered shift worked by the employee at the employee's base station and, except as provided for by subclause 12.6.2 or as otherwise provided by this Award, for each rostered shift on which the employee performs a relief duty at another station/location. 12.6.1.2 other employees on each occasion, except as provided for by subclause 12.6.2 or as otherwise provided by this Award, when such employees perform an Outduty in terms of subclause 12.1.2. 12.6.2 Unless otherwise provided in this Award, the "base rate" payment prescribed in subclause 12.6.1 shall not be paid to either a Relieving Employee (or other employee pursuant to 12.1.2) in cases where the employee is compensated for excess travelling time and/or payment for travel/accommodation expenses in accordance with the provisions of Clause 26, Travelling Compensation. 14 "Relieving Employee" is defined in cl 4 of the Award as follows: "Relieving Employee" means an employee serving at a station while not being permanently attached to any one station. Submissions of the Parties

15 The Union contended that the issues to be determined on appeal are: · Whether the principles of interpretation were correctly applied; · Whether the Commissioner gave due consideration to the consequences of his decision; · Whether the Commissioner wrongly determined the meaning of "Outduty". 16 The Union contended that the Commissioner was wrong in his finding that a Firefighter can be "placed" at another station/location without being transferred, or without performing a relief or Outduty. 17 The Union further contended that the Commissioner was wrong in his determination that "normally reports for duty" was different to "permanently assigned". 18 It was contended by the Union that, by deciding that the allowance was not payable on the basis that SFF Dives could not perform the full range of tasks, the Commissioner imposed a condition upon the payment of the allowance not contemplated by the Award. 19 The Union contended that the Commissioner's conclusion that payment of the BA/Hazmat allowance is linked to the performance of BA/Hazmat work, rather than being "BA/Hazmat qualified" when performing an Outduty where BA/Hazmat work may be required is wrong. 20 There is no Award authority, it was submitted, for the part payment of a BA/Hazmat allowance. It was erroneous to conclude that a Firefighter who is injured was not entitled to all the allowances (i.e. Major Aerial, Rescue and BA/Hazmat) when a Firefighter in the same circumstances who is not injured would qualify. 21 The Union submitted that the fundamental error by the Commissioner was to examine the nature of the work undertaken by SFF Dives in the BA/ Hazmat unit and then try to fit that within the Award. The Appellant argued that the correct approach is to commence with cl 6.7.3 of the Award and to determine the category of "attached to" applicable to the circumstances. 22 The Union contended that the actual work performed is not relevant to payment of allowances which derive from the location the Firefighter is "attached to" and the qualifications held. That is, if a Firefighter is attached to a station/location which has capability or responsibility for a function which attracts an allowance and the Firefighter is qualified to undertake that duty, the allowance is payable irrespective of whether the Firefighter is actually required to perform the task. 23 The Union submitted that cl 6.7.3 is a code encompassing all of the available states of "attached to", and provides that a Firefighter may be "attached to" a station or section for payment of an allowance by:

Relieving employees whose base station is the relevant station.

Relieving employees who are relieving at the relevant station or section away from their base station.

Permanently assigned to another station or section performing an Outduty at the relevant station or section.

Permanently assigned to the relevant station or section performing an Outduty at another station or section. 24 It is helpful to consider these categories and their effect in the context of the present matter. 25 Station 260 has major aerial appliances and rescue equipment, and, hence, the categories, so described, would operate in the following ways:

A Firefighter permanently assigned to Station 260 will, where qualified, be paid the Major Aerial and Rescue Allowances.

A relieving employee who has Station 260 as his/her base will, where qualified, be paid the allowances.

A relieving employee with a base station other than Station 260 will, where qualified, be paid the allowances for the period he/she is attached to Station 260 undertaking relief.

A Firefighter permanently assigned to another station will, where qualified, be paid the allowances whilst performing an Outduty at Station 260.

A Firefighter permanently assigned to Station 260 will, where qualified, continue to receive the allowances during any period he/she is performing an Outduty at another station/location. 26 The BA/Hazmat allowance applies to Firefighters, so qualified, who are attached to a BA/Hazmat location and may be a Firefighter:

Relieving Firefighters who have the BA/Hazmat section as their base location.

Relieving Firefighter with a base station elsewhere directed to undertake relief work at the BA/Hazmat location.

Firefighters permanently assigned elsewhere performing an Outduty at the BA/Hazmat location.

Firefighters permanently assigned to the BA/Hazmat location performing an Outduty elsewhere. 27 It was submitted that the Commissioner 'carved out' a separate category of employee on restricted duties not found within the Award. 28 Further, the windfall gain to the employer arising from non-payment of the BA/Hazmat allowance to an employee performing BA/Hazmat work on an Outduty was not considered by the Commissioner. 29 It was also submitted that the construction applied to the term "normally reports for duty" introduces the notion of a temporary transfer to another location, which is a concept foreign to the Award, by allowing the employer to regard or cause a location other than the location of permanent assignment or designated base location to become one at which the Firefighter "normally reports for duty". 30 The Union relied upon the limitations to performance of Outduties to eight in any calendar year, other than by agreement, in cl 12.17 of the Award, to support the argument that the Award places limitations upon the employer's ability to determine a Firefighter's work location on a temporary basis. 31 The Union submitted that, if the employer were able to place a Firefighter at a location other than their permanent location on a temporary basis so as the temporary location becomes the one to which they normally report for duty, as found by the Commissioner, the limitation imposed by cl 12.17.1 would be avoided. 32 By determining that SFF Dives, it was submitted, was not undertaking an Outduty at the BA/Hazmat section, the Commissioner threw into doubt the circumstances which may constitute an Outduty. This gave rise to uncertainty over the length of time a Firefighter might be undertaking an Outduty before the alternate location becomes the location at which the Firefighter "normally reports". 33 The Respondent on appeal did not oppose leave, however, submitted that the appeal should be dismissed. 34 The Respondent relied upon cl 27(3) of NSW Fire Brigades Regulations 2003 which provides that a Firefighter must serve wherever directed by the Commissioner of the NSW Fire Brigades. 35 The Respondent did not take issue with the proposition that the Award provided for the circumstances of placement, putting that the terms: "normally reporting for duty"; "permanently assigned"; and "attached to" have different and distinct meanings when used in the Award. 36 The Respondent contended that analysis of the circumstances should logically commence with an understanding that a large proportion of Firefighters are "permanently assigned" to a particular location, whilst others are regarded as relief Firefighters who are not permanently assigned to a particular location but for whom a particular location is regarded as their base station. Relief Firefighters are "attached to" the location at which they are providing relief at a particular time. 37 It was contended that the device of an Outduty is a mechanism whereby a Firefighter "permanently assigned to" a particular location can be utilised as a relieving Firefighter at another location where necessary. 38 The Respondent submitted that the use of "permanently assigned" Firefighters for relief by an Outduty is limited to eight days per calendar year other than by agreement. The Respondent did not seek to avoid that restriction. 39 It was submitted that an Outduty is limited to a circumstance of either commencing or ceasing duty at a station other than where the Firefighter normally reports for duty. This suggested that for a Firefighter to be undertaking an Outduty he/she must either start at their permanent location and finish at another on the same day; or, start at another location and finish at their permanent location. (This contention was not supported by any evidence of custom and practice or industry usage.) 40 The Respondent submitted that, during the period SFF Dives was undertaking alternate duties at the BA/Hazmat section, he commenced and ceased duty in that section, and accordingly, during that period, the section to which he normally reported for duty was the Newcastle BA/Hazmat section but he was not performing an Outduty. 41 SFF Dives was not placed in the BA/Hazmat section to provide relief, but as a means to provide him with suitable duties during a period of recovery from injury. The Respondent submitted that SFF Dives was in the BA/Hazmat section due to his medical condition, not to meet operational requirements as directed by the Commissioner of NSW Fire Brigades pursuant to cl 27(3) of the Regulations. This must mean that SFF Dives could not be regarded as performing an Outduty. 42 The Respondent further submitted that the allowances provided by cl 6.6.3, 6.6.5 and 6.6.12 of the Award are only payable where a Firefighter may be called upon to exercise the relevant skill. In order to meet this criteria, a Firefighter must be attached to a location where the skill may be required and must hold the qualification and be available to perform the relevant task. As a consequence of his medical restrictions SFF Dives was not available to perform the task in the BA/Hazmat section as he could not undertake the full range of duties that may be required. 43 Thus, SFF Dives was not "transferred" to the BA/Hazmat section and he remained permanently assigned to Station 260 and, accordingly, was only entitled to payment of the Major Aerial and Rescue Allowances. 44 The Respondent's approach was that the permanent assignment of a Firefighter is not altered as a consequence of placement away from that location occasioned by the need to find suitable duties. The Respondent submitted that, had SFF Dives been permanently reassigned to the BA/Hazmat section, he would have qualified for that allowance but would not be entitled to the Major Aerial or Rescue Allowances. 45 It is the Union who sought a windfall gain, it was submitted, by claiming the Major Aerial, Rescue and BA/Hazmat Allowances concurrently when SFF Dives was not capable of performing the full range of any of the duties. 46 The essence of the Respondent's case was that, as an injured worker placed for the purpose of suitable duties during a period of rehabilitation, SFF Dives did not fall within any of the definitions of "attached to" employed to define the term "Outduty". 47 The Respondent maintained that SFF Dives remained "attached to" Station 260, the location of his permanent assignment, which preserved his entitlement to the Major Aerial and Rescue Allowances. 48 The Respondent rejected, as unfair and impractical, the notion that SFF Dives, or someone in the circumstances of rehabilitation, would be transferred to a station or location where no allowances applied and thus lose entitlement to those allowances arising at the station/location or permanent assignment pre-injury. 49 It was acknowledged that there may well be a lacuna in the Award in as much as no specific provision is made in respect to placement of employees for the purpose of suitable duties. However, the Respondent asserted that, in a proper construction of the Award, such provision was unnecessary. 50 The construction advanced by the Respondent commenced with rejection of the Appellant's assertion that cl 6.7.3 is a code which sets out all of the available alternatives in placement of employees. The Respondent submitted that the Award did not, and could not, foresee every eventuality, putting that the Award was written to afford payment of wages, and in this case allowances, where employees were ready, willing and able to carry out the requirements of the employer. Emphasis was placed on the nexus between the capacity to meet the requirements of the employer and entitlement to an allowance. It was contended that, in the circumstances of suitable light duties in a period of rehabilitation, the employer was not directing the employee to undertake a task or function necessary to the operation of the service, but co-operating with the employee by finding or creating tasks within the restrictions placed upon the employee; and, accordingly, an entitlement to additional payment did not arise. 51 The Respondent submitted that a demand for payment of an additional allowance was counter to the best interests of the rehabilitation of the employee, as to seek more for less would discourage the employer and may ultimately lead to a conclusion that the employee remain in a sedentary position or that no suitable/light duties are available. 52 Finally, the Respondent submitted that SFF Dives would obtain an additional $119.60 pw for five shifts which, apart from being an enormous windfall gain, emphasised that an Outduty was a relief position and could not be used for the purpose of light/alternative duties in rehabilitation.

53 The Union submitted that it was in the public interest that the issues arising in the matter be considered on appeal, as the decision at first instance had wider application to Firefighters covered by the Award. 54 Leave to appeal is not opposed by the Respondent, who accepted the proposition advanced by the Union that the present matter raised issues of interpretation applicable to the Award generally. These issues had not previously been considered by a Full Bench. 55 We are in agreement with those submissions and conclude that the present application has satisfied the principles to be applied in a grant of leave to appeal. 56 Leave to appeal is granted. Consideration of the Appeal

57 This matter concerns the interpretation of cl 6.6.5 of the Award.

58 The matter before Stanton C ultimately required the interpretation of that provision in conjunction with other clauses of the Award, having regard to ordinary principles of award interpretation.

59 The question then and now is one of construction. In that respect, we consider that the Commissioner correctly identified at first instance the relevant principles, namely, primacy must be given to the actual words used in the instrument (giving them their plain and ordinary meaning) and the context in which those words appear: Zoological Parks Board of NSW v Australian Workers' Union (2004) 35 IR 56 at [43] and [44]. It was necessary to consider the whole of the instrument in construing a particular provision of it. However, as modern principles of statutory interpretation propound, recourse should also be had, in appropriate circumstances, to the purpose of the provisions in question. 60 By that clause, a Firefighter, such as SFF Dives, will receive the applicable allowance where that employee is "qualified for and attached to" the BA/Hazmat section of the NSW Fire Brigades. SFF Dives contends that he should have received payment of that allowance for the entirety of his service in that section whilst on light duties.

61 The first condition necessary to be met for the payment of this allowance concerns the qualifications of the Firefighter. This aspect is agreed in one respect: SFF Dives is qualified for the BA/Hazmat section. However, there is a dispute as to whether the clause requires the Firefighter to actually utilise his qualifications in the performance of work. 62 We agree with the Union that the clause does not require the employee be both qualified and carry out the work in question for which the qualification is held in order to attract the allowance; only the holding of the qualification is required. However, we do not agree that this conclusion, of itself, resolves the question as to whether the employee attracts the allowance in this case. This is because of the second condition necessary to be met in order to attract the allowance under the clause, namely, that the qualification be held when assigned in the manner contemplated by the clause. We will now turn to that further condition. 63 It is the second condition, that the Firefighter be attached to the relevant section, that raises the most significant controversy attracting this appeal. 64 The expression "attached to" is defined in cl 6.7.3 of the Award, although that definition is not without ambiguity.

65 It is clear that the definition, by the use of the word "include", is intended to give a more extensive meaning to the words "attached to" than might be normally attributed to them by their ordinary usage: see Campbells Cash & Carry Pty Ltd v National Union of Workers NSW Branch (No 2) (2001) 106 IR 429 at [14], [15], [17] and [18].

66 It is also clear that the more extensive meaning given to the expression "attached to" falls into three broad categories, each of them relating to the nature of the assignment afforded a Firefighter. The three broad categories are: permanent assignment, relieving employees (which consists of various sub-categories) and employees engaged in Outduties (which, again, has sub-categories). 67 It is the meaning which is to be attributed to those classifications of employees (who are said to be attached to a station or section) that is ambiguous. In that respect, both the Commissioner at first instance and this Full Bench should have received greater assistance by the provision of a more detailed factual background, which would have aided interpretation. That material may have provided a better understanding of usage of the expressions in cl 6.7.3 and the practices regularly or conventionally undertaken within the New South Wales Fire Brigade as to the assignment of employees either under these various categories or otherwise.

68 Despite reliance upon provisions concerning 'relieving employees' at first instance, by the hearing of the appeal the controversy had crystallised into a question of whether the employee in question had been engaged in an Outduty at the BA/Hazmat section. More particularly, the issue became whether he was, using the language of one of the categories in cl 6.7.3, an employee who was "permanently assigned elsewhere but who [was] performing an Outduty at the relevant station or section". (That particular definition, as it appears in that clause, does contain some exceptions, but they are irrelevant for present purposes.) It is that expression which we consider to be ambiguous, having regard to the language used, and other relevant provisions within the Award. Central to its investigation is the definition of "Outduty" in cl 4 of the Award. 69 As we have previously noted, the term "Outduty" is defined in cl 4 as "a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty". 70 After the provision of some additional written submissions by the Union, and factual material provided by the respondent (surprisingly, with some reluctance), it is clear that SFF Dives is not a relieving employee. That would have required an assignment of that kind, per se, and an engagement out of a base station (see also cl 12.1 and 12.2 of the Award). SFF Dives was permanently assigned to Station 260. 71 The definition of "Outduty" requires, as one of its elements, that the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty. 72 Although somewhat clouded by the use of the expression "permanent assignment" in cl 6.7.3, when read in context, the expression "normally reports for duty" must be a reference to a location other than where the Firefighter is posted for the performance of the Outduty. This will ordinarily mean the location where the employee is permanently assigned. In this respect, we consider the Commissioner's decision was in error, as contended by the appellant, as he found SFF Dives normally reported for duty at the BA/Hazmat section. SFF Dives was, however, permanently assigned to Station 260 and then required to work on light duties in the BA/Hazmat section. 73 The question arises then as to whether the appellant should succeed, given that SFF Dives was qualified to carry out the BA/Hazmat duties, engaged away from his normal place of reporting for duty (that is Station 260) and commenced (or ceased duty) each day (of the period subject to the claim) at another section, normally the BA/Hazmat section (as contended by the Union). 74 Despite its apparent consistency with a literal interpretation of the Award, we consider the answer must be negative. 75 First, the literal interpretation must always be the subject of context. As contended by the respondent, when one considers the provisions of cl 12.17 of the Award (regarding limits on the performance of Outduties), it becomes tolerably clear that the drafters of the Award imposed a temporal limitation upon an Outduty which is inconsistent with the pattern of work engaged in by SSF Dives. This conclusion derives from the distinction between "Outwork" and "relieving employee", the apparent (although unclear) notion of a single engagement arising from the words "either commences or ceases duty" at a station in the definition of "Outduty" in cl 4 and the limitations upon the performance of "Outwork" in cl 12.17. 76 We are not dissuaded from this conclusion by the appellant's contention that an employee may agree to greater periods of "Outwork" duty in cl 12.17.2. The purpose of the "Outwork" provision of the Award is to provide very limited opportunities for temporary assignments other than by the performance of work by 'relieving employers'. By an Outduty a permanently assigned employee may be temporarily moved to another location (where, if qualified, the employee would attract the requisite allowances). The alternative providing for agreed arrangements under cl 12.17.2 represent an exception to the norm, in this respect, and does not assist in understanding the true purpose of cl 12.17. 77 Secondly, whilst the definition of "attached to" in cl 6.7.3 is wide, and intended to enhance access to the allowances provided in cl 6.6 (where persons hold appropriate qualifications), the provision does not constitute a code, as submitted by the appellant. 78 The use of the word "include", and the particularisation of the instances in which the allowance would be attracted (on certain assignments) in cl 6.7.3, acts against this construction. 79 The effect of this construction is that the duties performed by SFF Dives, whilst on rehabilitation, do not constitute an Outduty (or, for that matter, an 'attachment' consistent with any other of the categories of assignment which attract the payment of an allowance under cl 6.7.3). 80 In reaching this conclusion we have been mindful of the principle stated in Re SRA Firefighting Award 2001 (2002) 122 IR 13 at [22] - [28] that the provisions of awards should be read, so far as the language of the instrument permits, as having an operation. Nonetheless, we consider that here the relevant provision, when read together and in the context of the Award as a whole, should have resulted in the claim for the subject allowance being declined. 81 However, the outcome is also explicable when considered in a wider context.

82 The essence of an Outduty is that it is at the direction of the employer to perform work at a location other than the location where the Firefighter "normally reports for duty". 83 On this basis, and putting aside the broader discussion of a construction of the provision of the Award above, the finding by the Commissioner that SFF Dives was not performing an Outduty at the BA/Hazmat section is correct; not because that section had become the one to which he normally reported for duty, but because he was not directed there for that purpose. 84 We accept the submission that to be engaged in an Outduty the employee must be directed by the employer to meet a positive operational requirement; although the employer would not be permitted to use a direction to avoid the requirement for payment when the provisions of the Award for payment of an allowance are properly met. Although we are not asked to consider it, we would not think that this conclusion detracts from a finding that the requisite allowance would be paid to SFF Dives, when engaged in Station 260, which is his permanent assignment. 85 The notion that the qualification attracts the allowance, not full performance or actual performance of duty, is sound in the circumstances of a placement for an operational purpose; and is consistent with the emergency response nature of the New South Wales Fire Brigade service wherein an operational employee may be required at any time to exercise the full range or any aspect of his/her abilities. This cannot be said in respect to an employee in a program of rehabilitation who is limited in their capacity to respond to an emergency.

86 The Award is silent, therefore, on the circumstances of an employee involved in a rehabilitation program or deployed for the purpose of rehabilitation from a work related injury. 87 The parties may wish to determine specific arrangements for rehabilitation which would be of assistance in encouraging the appropriate level of flexibility in the interest of improving the effectiveness of the rehabilitation process. This may be the matter of an appropriate Award application. 88 We note that we do not envisage that our decision will affect any payment of the BA/Hazmat allowance already made to SFF Dives. 89 Despite the error which has been demonstrated in the decision at first instance, we consider the conclusion reached is, nonetheless, correct, and the appeal should, therefore, be dismissed. Orders

90 We make the following orders:

Leave to appeal is granted;
The appeal is dismissed.

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At a glance

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Before

Source

Judgment (53 paragraphs)

Parties

Cases Cited (4)