The effect of the Award and the Certified Agreement
26 The applicant's case runs into a number of difficulties. The first is the nature of the relevant provisions of the Award and the Certified Agreement themselves. Clause 2.9 of the Award is not in its terms prescriptive. Its function is to define terms for the purposes of the Award. The definitions it contains are of significance in construing other provisions of the Award in which those terms are used, to which I have referred in [10]. Neither cl 2.9 nor any other provision of the Award (nor any provision of the Certified Agreement) is the source of the first respondent's power to appoint its employees to classifications. That power is to be found in s 17(c) of the CFA Act. Because the Award and the Certified Agreement have statutory force derived from the WR Act, an Act of the Parliament of the Commonwealth, they may restrict or regulate the exercise of the power, but the source of the power to appoint to classifications remains in the State legislation. Clause 2.9 of the Award does not contain in its terms any obligation upon the first respondent not to appoint any of its employees to a particular classification. In relation to each classification defined, the clause contains material descriptive of the experience and qualification that an employee appointed to the classification is expected to have. It is difficult to say, however, that any employee appointed to such a classification, who does not have both the qualifications and experience described, has been appointed in breach of cl 2.9 itself. Any obligation not to appoint such a person must be found in another provision. In this case, it is necessary to turn to the Certified Agreement to see if such a provision can be found, bearing in mind that the Certified Agreement effectively overrides the Award to the extent that the two are inconsistent.
27 Neither cl 17 nor cl 45.8.2 of the Certified Agreement imposes on the first respondent an obligation not to appoint to any classification a person without the qualifications or experience found in the definition of that classification. The purpose of each of cll 17 and 45.8.2 is manifestly to ensure that the first respondent does not contract out the work to be performed by employees in the various classifications, by engaging to perform that work persons other than its own employees engaged in those classifications. Neither clause has anything to say about who should be an employee engaged in any of the classifications. Clause 45.11 relates to the filling of vacant positions otherwise than by promoting or appointing persons already employed by the first respondent. In its terms, it is an enabling provision, but it contains many provisions regulating the exercise of the power to appoint from outside which it purports to enable the first respondent to exercise. Clause 45.11 says nothing at all about who may be promoted or appointed from among the employees of the first respondent to a particular classification. Clause 53.9 of the Certified Agreement might be said to impose on the first respondent an obligation not to require or direct Instructors to perform duties normally undertaken by employees within the classifications to which it refers. The clause itself says nothing about who may, or may not, be appointed to any of those classifications. In particular, it does not say that a person who is employed by the first respondent cannot be appointed to one of those classifications, whether possessing requisite qualifications and experience or otherwise. Similarly, cl 53.10 of the Certified Agreement, to the extent to which it imposes any obligation on the first respondent, is silent on the question of who may, or may not, be appointed to any of the classifications. Only if it be assumed that, despite her formal appointment as a Leading Firefighter, the second respondent has never been appointed to that classification could any question of breach of cll 45.8.2.2, 53.9 or 53.10 of the Certified Agreement arise.
28 The second difficulty encountered by the applicant's case is that it depends entirely upon the acceptance of a particular meaning of the word "service" in cl 2.9 of the Award. Unless it can be said, as counsel for the applicant attempted to argue, that "service" means service under the Award, the applicant's argument must fall. In the absence of a definition of the term "service" in the Award, it is necessary to find some aspect of the context in which the word is used that would suggest that the word has a meaning more restricted than its ordinary and natural meaning. The Macquarie Dictionary relevantly defines "service" as "employment in any duties or work for another, a government, etc." It can be accepted readily that the context in which the word "service" is used in the various classifications set out in cl 2.9 of the Award requires that the relevant service involves service in a firefighting capacity. It would be pointless for the definitions of the various classifications to refer to service in general, when what is contemplated is obviously service that will provide the experience fitting a person for the duties associated with a particular classification. Once that is accepted, however, the question becomes to what extent does the context suggest that the meaning of "service" should be narrowed further? A range of meanings remains possible. For instance, the relevant service could be restricted to service only with the first respondent, or could include, as counsel for the applicant suggested at one stage, service under the Award. This would include service with the Metropolitan Fire and Emergency Services Board, to which Pt 1 of the Award applies. It might equally well include service with any firefighting authority, the equivalent of those covered by the Award, in any other State or Territory of Australia, or in any other country. On the face of the Award, there is no particular reason why it should not be extended to include firefighting experience in the non-government sector if that were considered to equip a person with the requisite experience to undertake the duties attached to the particular classification. Nothing in the terms of the Award itself shows where the line ought to be drawn.
29 It is at this point that the applicant must call in aid its arguments based on the factual matrix of the Award and the custom and practice of the first respondent and the applicant. As to the factual matrix, there can be no doubt that firefighting is a dangerous occupation, involving considerable skill and knowledge, requiring stringent training, and depending upon each person engaged in it having a clear understanding of the procedures required in a particular situation, and his or her role in the execution of those procedures. Familiarity with the ways in which a particular firefighting authority carried out its functions is undoubtedly very important, especially given the unpredictability of the emergencies likely to be encountered. The exacting nature of the service, and the importance of the specialist knowledge of the functions and procedures of a particular employer, are of the greatest importance. It is to be hoped that they would be at the forefront of the consideration of whether a particular person had the experience, as well as qualifications, that would justify appointment to a classification. That question will arise in the consideration of any potential appointment, however. One employee might be considered not to have the requisite experience, despite employment with the first respondent for a specified number of years. Another might be considered to have the requisite experience, based in part on his or her service in firefighting for another employer. Nothing about the nature of firefighting in general, or firefighting as an employee of the first respondent, provides a context that would enable the drawing of a line somewhere within the range of possible restricted meanings to be given to the word "service" in cl 2.9 of Pt 2 of the Award.
30 Great caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement. Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation. See Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on. The evidence in the present case goes nowhere near establishing such a common understanding. It would be necessary to show that the word "service" had been used in the same context in a previous Award or agreement, now superseded by the Award, and for there to be clear evidence that both the applicant and the first respondent understood the word to have a particular restricted meaning in that context. There is no evidence of either of these kinds in the present case. Such evidence as there is about custom and practice in the appointment by the first respondent by employees to classifications seems to indicate that there is a recognition that it is not always possible, or advisable, to rely upon the experience levels specified in the definitions in cl 2.9 of the Award strictly. There have been cases of accelerated advancement, when there have been vacancies in positions requiring particular classifications, and shortages of employees with the length of experience designated for those classifications. There is evidence that the Union actively assisted in the promotion of one firefighter, who had emigrated from England, because of the high level of his skills as a result of his long service with a firefighting authority in England. Custom and practice provides no support for the proposition that the word "service" should be given a particular restricted meaning when it is used in cl 2.9 of the Award.
31 Apart from the obvious requirement that the service contemplated by the use of the word "service" in the definitions of various classifications in cl 2.9 is to be service of a firefighting kind, there is no warrant for giving it any particular restricted meaning. Certainly, there is no warrant for giving the word "service" in that context a meaning restricted to a service in the employ of the first respondent, or service in employment the terms and conditions of which are regulated by the Award.
32 The third major difficulty only confronts the applicant's case if it be assumed that the appointment of the second respondent to the classification of Leading Firefighter was in breach of the Award or the Certified Agreement. The difficulty is that of concluding that something done in breach of the relevant clauses of the Award and the Certified Agreement is to be treated as a nullity, in consequence of the breach. As I have said, none of the relevant provisions of the Award or the Certified Agreement appears to impose on the first respondent any obligation only to appoint to classifications persons with the required experience, much less any mandatory obligation. The question whether non-compliance with a statutory provision results in a particular act being treated as void no longer depends on the classification of the provision as mandatory or directory. Since Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[94], it has been recognised that it is necessary to gather from the statute, or statutory instrument, as a whole the intention that non-compliance should lead to invalidity, before a conclusion can be reached that a non-complying act is to be treated as void. It is certainly not the case that non-compliance with an award made under the WR Act would necessarily lead to the conclusion that an act was void. See Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 426-429 per Brennan CJ, Dawson, Toohey JJ and 453-457 per McHugh and Gummow JJ, and NTEIU v University of Wollongong [2002] FCA 31 at [38]-[39]. In the application of the approach favoured by Project Blue Sky, there are some guiding principles. One such guiding principle is that, where Parliament has chosen to make an act done in contravention of a statutory provision punishable by a specified penalty, it is unlikely that Parliament also intended other consequences, such as the invalidity of the act, to follow. See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 429 per Mason J, with whom Aickin J agreed. In the present context, Parliament has chosen in s 178 of the WR Act to enforce obligations in awards and certified agreements by means of the imposition of civil financial penalties. As a consequence, it is unlikely that it also intended that acts done in contravention of the provisions of awards and certified agreements should be treated as void. To the extent (if any) to which the particular terms of an award or a certified agreement might disclose an intention that contravention is to lead to invalidity, they certainly do not do so in the present case. It would be extremely difficult to argue that a failure to observe strictly the elements of a definition, in the appointment of a person to a particular classification, would result in the invalidity of that appointment. As I have said, only if the appointment of the second respondent as a Leading Firefighter were to be regarded as invalid would it follow that there were contraventions of any of the relevant clauses of the Certified Agreement.