NSW Fire Brigades Employees' Union v NSW Fire Brigades [2007] NSWIRComm 128 | Case summary

3 The question to be determined, having regard to those facts and to the matters submitted on behalf of the opposing interests, is whether clause 9.6.1 of the Award applies in circumstances where, as here, an employee is asked and agrees to start work earlier than the rostered shift commencement time and works in some instances, for two hours prior to shift commencement time and in other instances, for one hour prior to shift commencement time. 4 I note the award provides for overtime to be paid at the rate of time and one-half for the first two hours and double time thereafter, a prescription which would on the union case, entitle a firefighter to receive a minimum seven hours pay - that is four hours at the overtime rate, irrespective of the fact that less than four hours of overtime is actually worked. In Station Officer Brown's case, the effect would be that he would be entitled to seven hours pay (four hours at overtime rates) on days where he worked or may work overtime for only one hour prior to the commencement of his rostered shift. 5 That is the claim which the union brings and which the employer vigorously resists and given the employer's contention that the provisions of cl. 9.1 (the general overtime provision) rather than the provisions of cl. 9.6.1 (the recall provision) apply to circumstances here being examined, it is convenient to set out the whole of the overtime clause so that its various parts may be considered in context. 6 Clause 9 Overtime of the Award provides as follows: 9. Overtime 9.1 Overtime shall be paid for at the rate of time and one-half for the first two hours and at the rate of double time thereafter, provided that an employee who is required to work overtime shall be entitled to payment for at least 15 minutes of overtime on each occasion that the employee is called upon to work overtime. 9.2 For meal allowance entitlements where an employee works for more than two hours after the rostered finishing time of the shift, see Clause 10, Meals and Refreshments. 9.3 When it is reasonably necessary for an employee who has returned to the station either before or after the ceasing hour of the shift to clean up before leaving the station, and thereby justifiably leaves the station after the ceasing hour, the time so reasonably and necessarily occupied beyond the ceasing hour shall be paid for as overtime; provided, however, that on return to the station the employee draws the situation to the attention of the Officer-in-Charge of the station and that during the next working shift applies in writing for the overtime due under this subclause, specifying the grounds of the claim; provided, further, that if an employee is prevented by duty or other reasonable cause from making the claim on the next working shift the employee shall make the claim on the next ensuing working shift. 9.4 The hourly rate of pay for an employee for the purpose of this clause shall be ascertained by dividing the appropriate weekly "rate of pay" for such employee by forty. 9.5 Recall to Incident 9.5.1 An employee who is off duty and who is called upon, pursuant to subclause 9.5.2, to report for duty to attend an incident shall be entitled to a minimum payment equal to two hours at overtime rates. 9.5.2 Notwithstanding anything elsewhere contained in this clause, in the case of an incident, all employees off duty shall be liable to be called upon to report for duty and if called upon shall report immediately for duty 9.5.3 An employee who is on annual leave or long service leave and who reports for duty to attend an incident shall, in addition to payment pursuant to subclause 9.1, be credited with consolidated leave equal to the amount of time so worked. 9.5.4 For meal allowance entitlements when the employee remains on duty for a period of four hours or more in connection with a recall pursuant to subclause 9.5.1, see Clause 10, Meals and Refreshments. 9.6 Recall to Maintain Required Staffing Levels 9.6.1 An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates. 9.7 Where an employee recalled pursuant to either subclauses 9.5.2 or 9.6.1: 9.7.1 Is required to transport the employee's gear from the station/location at which the gear is located to another station/location in order to perform the duties of the recall, such employee shall be paid the amount set at Item 23 of Table 3 of Part D, for the distance travelled on the forward journey between the two locations. In the event that the Department is unable to transport the employee's gear back to the station/location at which the gear was located, the employee shall also be entitled to be paid return kilometres equal to the forward journey. For the purpose of this subclause "distance travelled" means the agreed distance or, if the distance is not covered by a Matrix, the actual kilometres travelled. 9.7.2 Incurs a toll as a consequence of using a bridge, tunnel or motorway when travelling to perform the recall, such employee shall be reimbursed for the cost of the toll. 9.8 On such nights as may be fixed by the Department or by the Commissioner on reasonable notice in the circumstances not exceeding two nights in any week, an employee shall work such overtime as is reasonably necessary for usual Brigade inspections, or for giving instructions to Retained Firefighters. 9.9 When overtime work is necessary it shall, except in the case of an emergency, be so arranged that employees have at least eight consecutive hours off duty between the work of successive shifts. Where an employee works so much overtime between the termination of the employee's ordinary work on any day or shift, and the commencement of the employee's ordinary work on the next day or shift, that the employee has not had at least eight consecutive hours off duty between these times, the employee shall be released after completion of such overtime until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. 9.9.1 If on the direction of the employee's authorised supervisor, such employee resumes or continues work without having had such eight consecutive hours off duty, the employee shall be paid at the rate of double time until the employee is released from duty for such period, and the employee shall be entitled to be absent until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. 9.9.2 Provided that while recalls shall be paid for at overtime rates in accordance with this Award, where the actual total time worked on a recall or recalls is less than 3 hours it shall not count for the purpose of determining whether an employee has had an eight hour break pursuant to this subclause. 7 It may be seen for the purpose of these proceedings, that it is the provisions of cl. 9.1 above which apply to overtime generally worked by firefighters and it is the provisions of cl. 9.6.1 which apply to "recalls" where staffing levels need to be maintained. 8 The provision that is now cl. 9.6.1 of the award was originally inserted in the then Fire Brigade Employees (State) Award on 3 November 1978 and took effect from the first pay period to commence on or after 31 May 1978 (IG 215 at 934 to 936). Since that time, that is to say, for almost thirty years, the employer has routinely treated overtime worked immediately before the start of a rostered shift in the same way as it has treated overtime worked immediately after the finish of a rostered shift. In other words, it has paid overtime under the general overtime provisions (cl. 9.1) rather than the recall provisions (cl. 9.6.1). 9 This is because the employer does not believe and has never believed that a firefighter who is called on to start work earlier than the appointed starting time for the rostered shift is in fact recalled within the meaning of cl. 9.6.1 notwithstanding that the purpose for which the employee is called in is to make up what would otherwise be a shortfall in numbers of firefighters at a given fire station or in the words of cl. 9.6.1 "for the purpose of maintaining required staffing levels". 10 It is after all, a continuum of work which begins with the usual journey from place of abode to place of work, which involves the carrying out of work albeit over a longer than normal period and which then involves the usual journey away from the workplace at the end of the continuum. There is, in these circumstances, no break or interruption in the work such as there would be in the case of a recall to which cl. 9.6.1 might apply. In such a case, an off duty firefighter would be required to report for duty for the purpose of maintaining required staffing levels and having done so, would then be released from duty without commencing a rostered shift. 11 In such a case, there would be an entirely separate interval of work involving among other things, journeys to and away from work which would not otherwise be made and it is those circumstances which would give rise under cl. 9.6.1 to an entitlement to a minimum of seven hours pay (four hours at overtime rates) even though the interval of work may only span one or two hours. 12 I note in that regard, that the union does not contend that work carried out immediately after a rostered shift, creates an entitlement under cl. 9.6.1 even though the purpose of such additional work be in common with the purpose of additional work carried out immediately before shift commencement namely, to maintain required staffing levels at a given fire station. 13 Be that as it may, the union does contend that the award is being incorrectly applied and that firefighters such as Station Officer Brown who are required to start earlier than their rostered shift commencement time should receive the benefit of payment under the recall provisions of cl. 9.6.1 as long as the purpose for which the early start is required is to overcome a shortfall in prerequisite staffing levels. 14 The union argues, regardless of what has been applied (and in the absence of complaint by the union) seemingly accepted over the last thirty years or so, that the award provision falls to be interpreted upon applicable principles of statutory construction. When viewed in that way, the words in cl. 9.6.1 are plain and unambiguous and on their face, require only that three pre-conditions are met in order that the prescribed entitlement is created. 15 The first pre-condition is that an off duty employee is required to report for duty. The second pre-condition is that the requirement to report for duty be for the purpose of maintaining staffing levels and the third is that the employee reports for duty. Once those pre-conditions are met, the union contends that the entitlement to a minimum of seven hours pay (four hours at overtime rates) is created, as Mr Nolan submitted, "irrespective of whether the firefighter actually works four hours - or four minutes - and irrespective of whether the firefighter's rostered shift abuts the recall". 16 With respect, I am not sure that the matter can be determined by the application of a narrow approach given among other things, the significance of the contextual approach to interpretation which was affirmed by Mason J in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 as follows: ... to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context ( Cooper Brookes (Wollongong) Pty Ltd v FC of T (1981) 35 ALR 151 at 156-7, 169; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have been viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, are not merely at some later stage when ambiguity might be thought to arise. See also Busby v Australian Telecommunications Commission (1988) 83 ALR 67 at 71; Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558 at 581;208 ALR 328 at 348 per Speigelman CJ. 17 The question arises in that regard, as to whether the circumstances in which Station Officer Brown finds himself constitute a true recall in the context of the award such that the provisions of cl. 9.6.1 should apply. 18 In the course of debate, Mr Nolan of counsel properly took the Commission to the settled law in this jurisdiction and in particular to the decision of Glynn J in Re Public Hospital Nurses (State) Award (1983) 5 IR 153 at 158 as follows: I decide that the correct interpretation of sub-cl (iii) of cl. 21 "Overtime" of the Public Hospital Nurses (State) Award, requires that it be applied in accordance with the definition of a "true" recall to work as set out by Richards J in the General Construction Award case. Minimum payment of four hours at the appropriate overtime rate for an employee recalled to work overtime after leaving the employer's premises requires that the employee either have returned home or at least have been released from duty by the employer at the completion of the emergency work. 19 In reaching that conclusion, her Honour at p 156 discussed Richards J's definition of a "true recall" in this way: RECALL TO WORK As a matter of convenience sub-cl (iii) of cl. 21 of the Nurses Award is again set out below: "An employee recalled to work overtime after leaving the employer's premises shall be paid for a minimum of four hours work at the appropriate rate for each time so recalled. If the work required is completed in less than four hours, the employee shall be released from duty. Provided that this subclause does not apply to a Director of Nursing, Deputy Director of Nursing, nursing staff that reside at the hospital and nursing staff on close call who remain at the hospital" (221 IG at 1874 at p 1893). The Corporation's basic contention was that time worked prior to the normal starting time, which time worked merged with ordinary working hours, was overtime in accordance with sub-cl. (ii) and should be paid on that basis. To qualify for payment in accordance with sub-cl (iii) the employee has not only to come from home but to return there prior to his/her next normal starting time. There is nothing on the face of sub-cl (iii) that suggests that a journey from and return to home is required for the provision to be applicable. The Corporation relied very heavily on the definition of "true" recall to work given by Richards J in the General Construction Award case. In the above case, Richards J held that 2 employees, called out without notice to an emergency, less than three hours before their normal commencing time, were not entitled to the minimum three hours payment, but simply overtime for the period worked as an early start, not a recall. The overtime provisions being examined by his Honour were in the following terms: "When an employee is recalled to work after leaving his job he shall be paid for a minimum of three hours at overtime rates" [1969] AR (NSW) 149 at 150. His honour described what he saw as a true recall to work situation as envisaged by the relevant clauses of the General Construction Award as follows at p 151: ... an employee was summoned to return to the job during the night, or in the early hours of the morning, to do an urgent job, and when the job was completed, he would return to his home before being required for his next normal days work. The employee would do the job, and irrespective of how long the job took, he would be guaranteed four and a half hours pay for his trouble in leaving his home, travelling to his working place, doing the job and travelling back to his home.

And later at p 157: That Richards J simply restated a generally accepted industrial reality is indicated by the fact that there was no appeal from his decision. Furthermore, since 1969 there have been few decisions made on the subject. 20 In Race Clubs etc Employees (Cumberland and Newcastle) Award [1991] NSWIRComm 22, Cullen J followed the reasoning of Richards and Glynn JJ in concluding that, in effect, there must be a discrete or separate interval of work which abuts a normal or rostered interval of work before the recall to work provisions of the racing industry award would apply. 21 In Electrical Trades Union of Australia NSW Branch v Boral Hardies Pty Ltd (1993) 51 IR 412 Maidment J is said by Mr Nolan to have applied the plain ordinary English meaning test in construing the provisions of the Electricians etc (State) Award notwithstanding the effect of doubling payment or in other words, payment of a penalty on a penalty (in that case, the payment of a stand-by allowance and also a re-call payment). It is this approach which should commend itself to the Commission in the present case, according to the union argument and it is of no moment that the end result may be to confer upon firefighters in Station Officer Brown's circumstances, a benefit which is thought by the employer to be unduly generous. Mr Nolan submitted that the way in which to test the industrial merit of the provision, if the employer is so disposed, is to file and prosecute an application to vary the award. 22 That, however, is not a matter for these proceedings and should not distract the Commission in its approach to the task of properly construing cl. 9.6.1 of the award. 23 In that regard I was also taken by Mr Nolan to a South Australian case which involved the interpretation of a recall clause that for all practical purposes, is materially indistinguishable from the clause under consideration here. As will be seen, it also involved consideration and analysis, in some detail, of the decisions of Richards and Glynn JJ in the cases discussed above. 24 In Re Interpretation of the St John Ambulance Officers Award (1992) SAIRC 14 (27 March 1992), McCusker J of the Industrial Court of South Australia, after setting out the relevant provisions of the St John Ambulance Officers' Award, said this: I remind myself that the interpretation of an award begins with the consideration of the natural and ordinary meaning of the words, read as a whole and in context. If there is no ambiguity, that ordinary meaning and effect must be upheld: see City of Waneroo v Holmes (1989) 30 IR 362 at 378, per French J, Atwood Oceanics Australia Pty Ltd v Commissioner of Taxation (1989) 30 IR 58 at 64 per Lee J, Re Health Administration Corporation (1985) 12 IR 122 per Sweeney J. Mr Lieschke, for the Ambulance Employees' Association, contended essentially this. That once an employee, having completed his hours of employment, and not being an employee rostered on call, was recalled, his active compliance with the recall entitled him to an immediate sum equivalent of three hours at overtime rates. If he took ten minutes or if he took two hours fifty nine minutes, his reward was the same. Therefore, if the act of recall was made and complied with at any point in time before the commencement of rostered ordinary hours of duty for that officer, that whole sum became instantly due and owing, and had no connection with the sum which became due when the officer commenced his rostered ordinary time. In effect, as a result of Mr Lieschke's argument, if the officer received a recall at say 0500 hours, and had been rostered to commence ordinary hours at 0700 hours, and further, stayed at work, then for his recall he would receive three hours at the appropriate overtime, and from 0700 hours onward, would receive his ordinary rate of pay besides. Mr Beasley, for the St John Ambulance Service, argued that in the hypothetical case, the worker would be entitled to two hours at overtime, but as employment in the arranged sense followed, that truncated the three hour minimum at appropriate overtime rates provided in Clause 9(4). Mr Beasley's argument was that to do otherwise would result in double counting, the period 0700 to 0800 hours being rewarded twice, (i.e. double time for Clause 9(4) and at ordinary time). This, he argued, could not have been the intent of the award maker. I was referred to two decisions, namely General Construction Award (1969) NSW (AR) 149 and Re Public Hospital Nurses (State) Award (1983) 51 IR 153. In the first of these, the circumstances concerned storm damage on a highway and the requirement for men to attend urgently to repairs. On the Monday, the day before the storm, they had completed ordinary hours, (with no overtime). On the next day, the Tuesday at 0515 hours, they were phoned and advised of recall and were collected by truck at 0530 hours. At 0700 hours, the damage was cleared and the men returned to their depot where ordinary hours commenced at 0730 hours. The award provided that when an employee was recalled to work after leaving his job, he shall be paid for a minimum of three hours at overtime rates. The workers argued they were entitled to the three hours at overtime rates and thus for the first hour, namely 0730 to 0830 hours, should have received pay at time and one half instead of ordinary time. As will be seen, the workers argued for less than Mr Lieschke argues in the subject case. The employer in the General Construction Case argued this was not recall, but merely the employees being summoned to start work earlier, and thereby entitled to the general overtime clause calculation. Richards J concluded the facts did not amount to a recall to work within the meaning of the award. He stated at [151]:- The employees were summoned to return to work, after leaving their job on one day before the commencement of work on the next day, without having been given prior notice in an emergency situation, but I think it was a summons to commence their normal work early rather than a recall to work. Clauses 34 and 24 were, in my opinion, intended to cover the type of case where an employee was summoned to return to the job during the night, or in the early hours of the morning, to do an urgent job, and when the job was completed, he would return to his home before being required for his next normal days work. The employees in the present case however, were summoned to work less than three hours prior to the commencement of their normal working time, travelled to work to do the job and on completion of the job merely presented themselves for their normal work. In such a case they did not incur the inconvenience of the extra journeys to and from their work which would occur in a true recall under cl. 34 and cl. 24 of the awards. The overtime rate would apply to them as employees starting early and their ordinary rate of pay would apply once their normal working hours commenced. In Re Public Hospital Nurses (State) Award , the nursing staff employed in a hospital worked two shifts from 0830 hours to 2200 hours. Two members were called back to the hospital at 0600 hours to attend an emergency. They worked from 0700 hours through to 0830 hours when their normal shift commenced. They were paid overtime for the period 0700 hours to 0830 hours. It was regarded as one to one and a half hours in excess of the rostered daily ordinary hours of work. The award stated that all time work (sic) by employees in excess of the rostered daily ordinary hours of work was overtime. The award also stated an employee recalled to work overtime after leaving the employer's premises shall be paid for a minimum four hours work at the appropriate rate for each time so recalled. The reasoning of the Industrial Commission includes discussion of the reasons for the minimum payment being provided for in call back situations. However, as a generality, the reasons that move an award maker to put similar provisions in other awards cannot, in my view, displace or substitute for the normal and ordinary consequence of the unambiguous language used. In this, the curial approach will have different disciplines to the arbitral approach. It is no part of the court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate: see Australian Workers' Union v Graziers Association (NSW) (1939) 40 CAR 494. On the other hand, obvious absurdities of result must be presumed not to have been intended. The Commission in Re Public Hospital Nurses (State) Award decided the matter by adopting the limitation of what, recall, constituted, described by Richards J in the General Construction Award case. That is, the employee had to return home, or at least be released from duty by the employer at the completion of the emergency work, for it to become recall work. That means that, despite the employer recalling the employee, it was not until the employee finished the work and was released or returned home before normal starting time, that the recalling became a 'recall'. The decisions referred to me deserve the utmost respect and are of a significant persuasive nature. But I am not ruled by them. In the end, I am not in agreement with their reasoning. One absurdity of the result is described by the learned Judge in Re Public Hospital Nurses (State) Award , namely a nurse recalled and who completes the work in one hour and returns home gets the equivalent of six hours wages, when the nurse recalled and works for three hours up to a normal starting time, will be entitled to four hours wages equivalent. Moreover, I am unconvinced that as a matter of legitimate approach, I am entitled to define recall in terms of return home when its ordinary usage does not necessitate or infer that. In my conclusion, a recall focuses on a situation of return at request to work after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to an arrangement generally in existence between employer and employee. Moreover, of prime importance to me is the usage, "shall be paid as for a minimum of three hours work". That is not concerned with the period the worker shall actually work, but rather the computation of the minimum reward that an employee shall receive, 'if recalled', and that reward in my view is not subject to qualification. This is the answer to the contention that the approach argued by Mr Lieschke necessitates the error of double counting. The worker, once recalled, is entitled to the full amount at the moment he complies, and that entitlement is quite disparate from the entitlement he will have when he starts work at the ordinary rostered time, the latter being referable to and wholly determined by different parts of the award. I am satisfied that such an approach allows Clause 9(1) work to do in those cases of overtime which are not brought into being by recall. The answer therefore is that if the Ambulance Officer is recalled to work, otherwise than in an accordance with a direction given prior to the end of the Officer's shift, and less than three hours prior to the start of his/her next (planned) shift, though remaining at work until the commencement of that shift, the Officer is entitled to an amount equal to three hours overtime at the appropriate overtime rate, (as determined by Clause 9(2)), in any event and shall be paid for the whole shift worked besides. 25 As may be seen, a critical feature of McCusker J's reasoning was that the natural and ordinary meaning of the word 'recall' focussed on the act of returning to work and did not permit the act of being released from work to be imported into it. Thus the latter element did not constitute or form part of the meaning of the word 'recall' in the award. 26 The appeal against McCusker J's decision in St John Ambulance Officers (supra) was dismissed by the Full Court of the Industrial Court of South Australia (Stanley J, President, Allan and Crathorne JJ, Deputy Presidents) [1992] SAIRC 30 with the President observing: In my opinion, it has not been shown that the learned judge erred in the interpretation which he placed on the provision in the award in the passage just quoted. In fact, I entirely concur with it. If I give the words contained in that award provision their normal grammatical meaning, a recall to work means simply that after a worker has left his place of work, the employer has requested him to come back there to carry out some unexpected or unplanned duties. There is no ambiguity in the sub-clause. Once an employee covered by this award has completed his work for the day and left the workplace and is recalled or summonsed to come back to work by the employer to perform duties, he is entitled to minimum payment for three hours work, no matter how long he remains there. It is the recall to duty which triggers the entitlement to the minimum payment. What occurs thereafter is irrelevant to that entitlement. To suggest that an employee must return home or leave the workplace before he becomes entitled to the minimum three hours payment is not a construction properly available on the working of this provision. 27 With every respect to the earlier decisions which have guided and until now been accepted by the industrial interests in this jurisdiction and notwithstanding Ms Anderson's vigorous submissions to the contrary (which I apprehend were based largely on the desirability of comity) I find the reasoning in St John Ambulance Officers, affirmed as it was on appeal, to be highly persuasive. To the extent that it supports the interpretation for which the union contends in this case, I propose to follow it. 28 Having said that, it may be appropriate for the parties to consider, going forward, whether in the wider context of the award, a firefighter who is told before ceasing work in one shift, that he or she is required for an early start prior to the next or subsequent shift (for whatever reason) can then claim to be entitled to payment for recall rather than general overtime. As McCusker J observed in St John Ambulance Officers, a recall focuses on a situation of return to work on request after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to the arrangement generally in existence between employer and employee. I am of the view that such an approach would be consistent and in harmony with the general overtime provisions of cl. 9.1 of the award and the recall provisions of cl. 9.6 of the award. 29 For the purpose of these proceedings, I determine that the proper interpretation of cl. 9.6.1 of the award is that for which the union contends. The proceedings are concluded accordingly.

NSW Fire Brigades Employees' Union v NSW Fire Brigades

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Judgment (13 paragraphs)

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Cases Cited (11)

Cited By (2)