United Firefighters' Union of Australia v Country Fire Authority

REASONS FOR JUDGMENT THE COURT: 1 The appellant brought a proceeding in this Court for the imposition of penalties for breaches of the Victorian Firefighting Industry Employees Interim Award 2000 ("the Award") and the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2002 ("the Certified Agreement") (both of which were made pursuant to the Workplace Relations Act 1996 (Cth)). Declarations as to the correct interpretation of some provisions of the Award and the Certified Agreement were also sought. The appellant's claims were rejected (United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853). The factual background to the legal issues raised by the appeal and, in particular, the circumstances relating to the second respondent's employment and appointment as a "Leading Firefighter" are set out in the judgment under appeal and it is not necessary to repeat them here. 2 The issues on the appeal were stated by the appellant in this way: "The first issue for determination is the correct interpretation of the word 'service' in clause 2.9.8 of the Award. The second issue for determination is what consequences flow from the CFA's appointment of Ms Wilms to a Leading Firefighter position, when she did not have the minimum 48 months service required by clause 2.9.8 of the Award." 3 The Award applies both to the Metropolitan Fire and Emergency Services Board ("the Board") and the Country Fire Authority ("the CFA"). Part One of the Award applies only to the Board. Part Two of the Award applies only to the CFA. Clause 2 of Part Two sets out a number of definitions of terms and expressions used in Part Two. Clause 2.9 contains the following definitions under the heading "Classifications": "2.9.1 Recruit Firefighter means a probationary employee, who is undertaking the recruit training course. 2.9.2 Firefighter Level 1 means an employee who has successfully completed the recruit training course. 2.9.3 Firefighter Level 2 means an employee who has completed twelve months service and has successfully completed all Firefighter Level 1 modules. 2.9.4 Firefighter Level 3 means an employee who has completed 24 months service and has successfully completed all Firefighter Level 2 modules. 2.9.5 Qualified Firefighter means an employee who has completed a minimum of 36 months service and possesses the Certificate of Proficiency. 2.9.6 Qualified Firefighter (with leading firefighter qualifications) means an employee who is eligible for promotion to Leading Firefighter. 2.9.7 Senior Firefighter means an employee who is currently appointed to this classification. If the employee has completed the requirements of the Leading Firefighter transitional arrangements he or she is deemed to be the equal of a Leading Firefighter for the purposes of determining eligibility for: • Attendance at courses conducted both internally and externally; • Transfer and/or promotion to a vacant position; and • Any other related matter. 2.9.8 Leading Firefighter means an employee who has had a minimum of 48 months service and has been appointed by the employer to Leading Firefighter. 2.9.9 Fire Officer Grade 1 means an appointed Officer who has completed a minimum of five years service, with at least one year at Leading Firefighter. 2.9.10 Fire Officer Grade 2 means an appointed Officer who has completed a minimum of two years service at the Fire Officer Grade 1 Level and has completed the Advanced Certificate. …" 4 Clause 2.7 of Part Two defined "Employer" as follows: "2.7 Employer means Country Fire Authority." Clause 2.6 of Part Two defined "Employee" as follows: "2.6 Employee means an employee subject to this award." Clause 3.1 of the Award which applies to all parties bound by the Award provides that the Award is binding upon the Board, the CFA, the Union and: "its members and those employees eligible to be members employed in any of the classifications set out in this Award." 5 Ms Wilms was employed by the CFA in February 1998. She was employed as an Instructor and not under the Award. In April 2000 Ms Wilms passed her assessment for the qualification of Leading Firefighter. She was informed that she had demonstrated that she was competent to perform the role of a Leading Firefighter with the CFA. In May 2000 Ms Wilms was informed that she did not hold the qualification of Qualified Firefighter, that she was considered to be an Instructor who had undertaken a course of training and attained assessment as a Leading Firefighter, that this did not amount to a promotion and that she was still regarded as an Instructor with qualifications as a Leading Firefighter. Ms Wilms complained about her position. Dialogue ensued with the CFA and ultimately in January 2003, the CFA described Ms Wilms as an Instructor and gave notice of her permanent transfer to the position of Leading Firefighter at Point Cook from a date to be advised. The appellant objected to this transfer. 6 If the "service" contemplated by cl 2.9.8 meant service with the CFA then from March 2002 Ms Wilms met the elements for appointment as a Leading Firefighter. She was appropriately qualified. She had more than 48 months service with CFA. Her appointment to a position of Leading Firefighter by her employer satisfied the definition of "Leading Firefighter" in every respect. 7 The appellant argued, however, both before the primary judge and on appeal, that "service" in cl 2.9.8 (and generally in cl 2.9) meant service with the CFA in one of the firefighting classifications defined in cll 2.9.1 to 2.9.7 of Part Two of the Award. Upon this approach, Ms Wilms' appointment was not made in accordance with the Award because, although otherwise appropriately qualified, she had no "service" in a firefighting classification under the Award and she was therefore not eligible for appointment as a Leading Firefighter. It was argued that her appointment, in circumstances where she failed to satisfy all the elements of the definition in cl 2.9.8, amounted to a breach of the Award. This argument raises a number of issues about the meaning, legal effect and purpose of cl 2.9 and the definitions which it contains but it is not necessary to resolve all of them on this appeal. 8 The primary judge rejected the appellant's claims for three reasons. First, he held that the Award did not impose an obligation not to appoint someone to a particular classification. He said: "26 … 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." 9 Secondly, although the primary judge took the view that "service" under cl 2.9 meant "service of a firefighting kind" it was not necessarily service with the CFA or in a classification under the Award. He said: "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. … 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." 10 On this view, Ms Wilms' earlier employment by a contractor providing firefighting services at the military base at Puckapunyal appears to have been regarded by his Honour as sufficient to satisfy the "service" element of cl 2.9.8. 11 Thirdly, the primary judge said that even if a relevant breach of the Award (or the Certified Agreement) was established that would not result in Ms Wilms' appointment being treated as a nullity. 12 He stated his final conclusion about the issues before him in this way: "33 It follows from these reasons that the applicant has been unable to make out its case. It has not been able to establish that the appointment of the second respondent as a Leading Firefighter involved a breach of either the Award or the Certified Agreement. Even if there were breaches, they would not lead to invalidity of the appointment, and much of the applicant's case would fall for that reason. The application must be dismissed ..." 13 The appellant challenges each of the conclusions to which we have referred and the reasoning on which they are based. 14 The respondents' case before the primary judge was that "service" in cl 2.9.8 meant service with the CFA but that it was not necessary that it be service in one of the Award firefighting classifications. On the appeal they took a different position. They sought to support the primary judge's conclusion that "service" meant simply service somewhere in a firefighting capacity and not necessarily service with the CFA. 15 The respondents argued that cl 2.9 was only definitional and did not impose any substantive obligations on the CFA. Accepting that premise for the purpose of analysis it is nevertheless necessary to assign some meaning to the notion of "service" in the definitions themselves, if only as a starting point to consider the appellant's arguments. We are of the view that "service" in cl 2.9.8 must mean service with the CFA. We do not share the view of the primary judge (now embraced by the CFA) that "service" in cl 2.9.8 may mean service outside the CFA. 16 We do agree, however, with the primary judge that "there is no warrant for giving the word 'service' … a meaning restricted to … service in employment the terms and conditions of which are regulated by the Award". 17 The classifications defined in cl 2.9 progress, in terms of experience and period of employment, from "Recruit Firefighter" through to "Fire Officer Grade 2". The expression "service" first appears in that progression in the definition of "Firefighter Level 2". The progression from "Recruit Firefighter" to "Firefighter Level 1" and then to "Firefighter Level 2" demonstrates that the "service" required for an employee to quality as a "Firefighter Level 2" is service with the CFA. The expression "an employee who has completed twelve months service" identifies, in context, service with the CFA. The same observation may be made in relation to the definitions of "Firefighter Level 3" and "Qualified Firefighter". 18 A similar conclusion can be reached when considering the definitions of "Fire Officer Grade 1" and "Fire Officer Grade 2" in which the expressions "who has completed a minimum of five years service" and "who has completed a minimum of two years service at the Fire Officer Grade 1 level" respectively appear. In both of these definitions the expression "service" must mean service with the CFA and does not allow for a meaning of service anywhere with any employer whether CFA or otherwise. 19 One difficulty with the appellant's argument is that cll 2.9.9 and 2.9.10 (which deal with appointment of Fire Officers Grades 1 and 2) expressly require previous service in specific classifications in the Award structure. The absence of any specific requirement of this kind for the position of Leading Firefighter tends against the appellant's argument that "service" in cl 2.9.8 means service in a position within the Award structure. 20 There are a number of other matters in the Award which are difficult to reconcile with the appellant's contention on the first, and basic, issue of construction on which its appeal depends. It is true, as the primary judge said, that the Award contains no definition of "service". However, it refers to "service" in a number of places. For example, Part Two of the Award defines "continuous service" in the following way: "2.4 Continuous service means service under an unbroken contract of employment …" 21 This definition becomes important in the establishment of entitlements to severance pay in the event of redundancy or periods of notice upon termination, each of which require a calculation to be made by reference to a "period of continuous service". The definition of "continuous service" clearly refers to length of service with the CFA rather than in any particular classification or classifications. 22 Part Two of the Award also refers to service in a number of places in connection with the grant of leave of various kinds (eg parental leave, cl 14; personal leave, cl 15; special sick leave, cl 16; and annual leave, cl 18). In each of these provisions the relevant entitlement is stated by reference to service with the CFA. In none of them does it depend upon, or suggest, length of service in a firefighting classification. 23 Section One of the Award applies to both employer parties to the Award. It contains provisions dealing with "Transmission of business". Again, it is clear that "service" is used in this provision to refer to service, relevantly, with the CFA as employer and a predecessor or successor business as the case may be. 24 To accept the meaning suggested by the appellant would depart from the meaning of the same term wherever it is found elsewhere in the Award. It would require clear language to dictate a different and more limited meaning for the purpose of cl 2.9.8 and cl 2.9 generally. The Award does not contain such language. The specific examples which the Award itself provides are also consistent with a common understanding of "service" under a contract of service (ie a contract of employment) being measured by reference to the length of employment with an employer. 25 Although the appellant has satisfied us that the meaning given to the term "service" by the primary judge should not be accepted it has failed to make out the meaning for which it contends. The result remains that the primary judge was correct to dismiss the claims before him. As the appellant's case arguing breach of Award fails on the issue of construction it is not necessary to deal with the other grounds upon which the case failed at first instance. 26 The appeal must be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg, Graham and Buchanan.