Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement - whether entitlement to payment of relieving allowance applied in respect to two employees.

• [1] This decision concerns a dispute between the United Firefighters' Union of Australia (UFU), on behalf of two of its members, and Fire Rescue Victoria (FRV) as to the claimed entitlement of a "relieving allowance" under the enterprise agreement titled Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Agreement).

• [2] FRV is the successor entity to the Metropolitan Fire and Emergency Services Board (the MFB) and the Country Fire Authority (CFA). The restructure that led to the establishment of FRV has been documented previously[1]. Accompanying that restructure was a variation to various enterprise agreements that, at the time, applied to employees of the MFB and CFA. The two main agreements for operational firefighter staff were the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (MFB 2016 Operational Agreement) and the Country Fire Authority/United Firefighters' Union of Australia Operational Staff Enterprise Agreement 2010 (CFA 2010 Operational Agreement). The product of those variations led to the Agreement in its current form. Two overarching features of the Agreement are that the terms of 'Division A' are applicable to employees who would have been previously employed by the MFB under the MFB 2016 Operational Agreement and 'Division B' is applicable to employees who would have been previously employed by the CFA under the CFA 2010 Operational Agreement.

• [3] The current dispute concerns the employment of two firefighters substantively employed in Division B. Specifically, the dispute concerns whether those two firefighters were entitled to a 'relieving allowance' pursuant to clause 92.12.1.1 of Division B of the Agreement.

• [4] The factual context of the work performed by the two firefighters is largely, although not entirely, uncontroversial. The two employees each held a substantive position of Senior Station Officer or 'SSO'.

• [5] The first of the employees is SSO Luke Waterson. SSO Waterson commenced employment with the CFA in August 2006 as a Recruit Firefighter. By July 2018, SSO Waterson had been promoted to the rank of Senior Station Officer, which was his substantive classification at the time of this dispute. SSO Waterson's location was the Bendigo Fire Station and his substantive role was an on-shift firefighter/officer. The dispute for SSO Waterson concerns a period from 10 October 2022 to 2 December 2023 with respect to his work as an Acting Commander in FRV's Building Safety Regulation Unit (formerly known as the Building Codes Australia Unit) at Burnley.

• [6] The second of the employees is SSO Connor. SSO Connor was an operational firefighter, who commenced with the CFA as a recruit firefighter in 2012. He was appointed, at that time, to the CFA's Mildura Fire Station, which remains the location for his substantive position. In June 2022, SSO Connor was appointed to his current substantive role of Senior Station Officer. His substantive role is District Based Reliever. The dispute for SSO Connor concerns a period from 6 March 2023 to 2 July 2023 and 28 August 2023 to 4 February 2024 with respect to his work as an Acting Commander at Wangaratta (CFA District 23 Headquarters).

• [7] At the 6 December 2024 hearing, each of SSO Waterson and Connor gave evidence on their own behalf. Assistant Chief Fire Officer Glenn Pröbstl and Ms Tracey Kraehenbuehl gave evidence for FRV. ACFO Pröbstl was responsible for the management of the Secondment Management Department of FRV. He was employed in his current role since 2023 by FRV and, before that, FRV and the CFA for approximately 25 years. The Secondment Management Department is responsible for managing a secondment agreement between FRV and the CFA, under which FRV seconds its employees to the CFA to assist with the management and coordination of volunteer firefighters. Ms Kraehenbuehl was Team Leader of State Rostering for Division B employees in FRV. She gave evidence about various payroll matters. All witnesses were cross-examined, although not extensively. No issue of credit arises from the evidence of any witness.

• [8] The critical clause in question is clause 92.12 of Division B of the Agreement. It provides (emphasis added):

92.12.1 An employee is a reliever or who agrees to do relieving duty away from their appointed location shall receive:

92.12.1.1 If the distance between their appointed location and their duty location is greater than 100 kilometres measured by the shortest distance by road in accordance with the agreed schedule of distances:

92.12.1.1.1 an allowance in accordance with Schedule 4 per shift; and

92.12.1.1.2 when off duty, the cost of reasonable accommodation, not at the duty location, dinner and breakfast, and a meal allowance; and

92.12.1.1.3 the expenses as prescribed in clause 92.9; for the journey to their duty location: prior to commencing relieving duty at the location and; for the return journey: at the completion of the tour of relieving duty at the location.

92.12.1.2 If the distance between their appointed station and their duty station is between 50 and 100 kilometres measured by the shortest distance by road in accordance with the agreed schedule of distances:

92.12.1.2.1 an allowance in accordance with Schedule 4 per shift; and

92.12.1.2.2 when there is a break between shifts of 24 hours or less, the entitlements prescribed in clause 92.12.1.1.2.

92.12.2 A relieving employee shall not be entitled to the allowance prescribed in clause

92.12.1.1.2 when they return to their place of residence between shifts and receive the expenses prescribed in clause 92.9.

• [9] The questions formally agreed to by the parties for arbitration were:

a. Whether FRV should have paid a relieving allowance to Luke Waterson (SSO FS73 Bendigo) with respect to his work as an Acting Commander in FRV Building Safety Regulation Unit (formerly known as the Building Codes Australia Unit) at Burnley for the period 10 October 2022 to 2 December 2023, pursuant to clause 92.12.1.1.1 of Division B the 2020 Agreement (Question 1).

b. Whether FRV should have paid a relieving allowance to Scott Connor (SSO FS72 Mildura) with respect to his work as an Acting Commander at Wangaratta (CFA District 23 Headquarters) for the periods from 6 March 2023 to 2 July 2023 and 28 August 2023 to 4 February 2024, pursuant to clause 92.12.1.1.1 of Division B of the 2020 Agreement (Question 2).

• [10] For the reasons that follow, I conclude that SSO Connor was not entitled to the relieving allowance as claimed but SSO Waterson was not.

• [11] The underlined sections in the above extract from clause 92.12 of the Agreement focus on the key elements in dispute between the parties concerning the construction of the clause and its application to SSOs Waterson and Connor.

• [12] Neither SSO Waterson or SSO Connor were performing the role of a "reliever" while on their temporary duties. That matter was not in dispute. There is also no dispute that each officer was an "on shift" employee, when performing their substantive duties, but were not working shift work during their period work as Acting Commanders (that work was day work).

• [13] The differences between the parties are reasonably simple to state, although the resolution of the differences is not as straight forward.

• [14] For the UFU, it contends:
  1. Each SSO had agreed with FRV to perform their alternative duties (by, respectively, FRV issuing the expressions of interest, and the subsequent application by each SSO to the expression of interest and then FRV's approval of those applications).
  2. The work performed in the alternative duties was "relieving duty" with the meaning of the chapeau to clause 92.12.1.
  3. For each SSO, their "appointed location" was their home or duty station for their substantive duties (in SSO Waterson's case, being at the Bendigo Fire Station and SSO Connor at the Mildura Fire Station).
  4. The location of work for their respective alternative duties was more than 100km from their duty station.
  5. It follows that each SSO was entitled to the allowance pursuant to clause 92.12.1.1.1.

• [15] FRV had two responses to the UFU's contentions:
  1. For SSO Waterson, FRV contended that the work performed by SSO Waterson while on his secondment was "Division A" work. FRV contends that Division A work is payable according to Division A and the relieving allowance under clause 92.12 of Division B is simply inapplicable.
  2. For each of SSOs Waterson and Connor, FRV contended that the relieving duties allowance under clause 92.12 was only applicable for firefighters up to the rank of Senior Station Officer and for work undertaken in a position that was station-based. Ranks above SSO - specifically, the Commander roles being performed by SSOs Waterson and Connor - could not and did not attract the entitlement.

• [16] FRV initially advanced a third reason why neither employee was entitled to the relieving allowances. That reason was that neither SSO Waterson or Connor were performing relieving duties, rather, they were simply performing acting up duties. FRV's third reason was ultimately not pressed.

Issue 1 - did SSO Waterson performing Division A work preclude the Division B allowance?

• [17] SSO Waterson's temporary role was within the Building Safety Regulation Unit for FRV at Burnley, Victoria. There was no dispute that this unit was within the operational part of FRV comprised of the former MFB. The substantive holder of the roles filled by SSO Waterson while performing duties as an Acting Commander is covered by Division A of the Agreement.

• [18] FRV relied upon clause 6 of Divisions A and B of the Agreement. Clause 6 is in materially identical terms for each division. It states:

6. GENERAL STRUCTURE, APPLICATION AND CONSTRUCTION OF AGREEMENT, AND PARTIES BOUND

6.1. This Agreement comprises two Divisions: Division A and Division B. Each of Divisions A and B comprise discrete Parts, and annex discrete Schedules.

6.2. Division A applies to, covers, and is binding on:

6.2.1. FRV and any successor, assignee or transmittee of all or part of FRV's business, or activities, (whether or not that successor, assignee or transmittee is engaged in the business of fire prevention or suppression).

6.2.2. The United Firefighters Union of Australia (UFU), and

6.2.3. All employees of FRV who are "transferred employees" within the meaning of section 101 of the FRV Act and any person employed by FRV since its commencement to perform work that is or may be performed by an employee engaged in a classification or occupation referred to in Division A, where such work was formerly performed by employees of the MFESB in the MFD; and

6.2.4. Employees of FRV undertaking any of the work or duties performed by employees referred to in 6.2.3.

6.3. Division B applies to, covers and is binding on:

6.3.1. FRV and any successor, assignee or transmittee of all or part of FRV's business, or activities (whether or not that successor, assignee or transmittee is engaged in the business of fire prevention or suppression);

6.3.3. All employees of FRV who are "transferred employees" within the meaning of section 102 of the FRV Act or transferred to FRV as a result of a direction by the Minister under section 103 of the FRV Act and any person employed by FRV since its commencement to perform work that is or may be performed by an employee engaged in a classification or occupation referred to in Division B, where such work was formerly performed by employees of the CFA in the Country Area of Victoria;

6.3.4. Employees of FRV undertaking any of the work or duties performed by employees referred to in 6.3.3.

6.4. Divisions A and B (and their respective Schedules) have discrete historical origins derived from the former MFB and CFA, respectively. Their respective terms reflect those discrete industrial histories, and bargaining for antecedent agreements in relation to those predecessor agencies over many years. Accordingly, the parties agree that in construing this Agreement:

6.4.1. a construction of a provision which reconciles the text of a provision within the context of its own Division will be preferred over a construction which reconciles the text of that provision within the context of the other Division.

6.5. No third party (except where expressly provided and excluding FWC or any court) has any right to interfere with the terms and conditions provided for in this agreement.

• [19] For SSO Waterson, FRV relies on clause 6.2.4, namely "Employees of FRV undertaking any of the work or duties performed by employees referred to in 6.2.3". There is no disputation that the work SSO Waterson was performing while at the Building Safety Regulation Unit was "Division A" work.

• [20] The UFU, by contrast, states that SSO Waterson was at all times a "transferred employee" within the meaning of section 102 of the FRV Act. There was no disputation about this matter either. According to the UFU, therefore, clause 6.3.3 of each Division in the Agreement ensured that SSO Waterson's conditions of employment remained regulated by Division B, not Division A. The UFU contended that clause 6.2.4 for Division A work (and the analogue clause 6.3.4 for Division B) operated as anti-avoidance provisions. The UFU noted (correctly) that each of clauses 6.2.3 had a materially identical predecessor term under the MFB 2016 Operational Agreement. Taking the MFB 2016 Operation Agreement as an example, the UFU contended that the provisions ensured that the MFB and CFA could not avoid the operation of the respective agreements by directing employees who were not Career Firefighters to undertake the work or duties performed by Career Firefighters. For example, the UFU referred to FRV attempting to direct a corporate and technical employee to perform the work of a Division A operational employee - in this case, the employee would be required to be paid as a Division A employee.

• [21] The difficulty with the UFU's contentions is the plain wording of clauses 6.2.4 (for Division A) and 6.3.4 (for Division B). Each of those clauses applies to "Employees of FRV" generally and each is specifically directed to those employees undertaking "any of the work or duties performed by the employees" referred to in either clause 6.2.3 or 6.3.3, including, in the case of 6.2.3, both employees transferred to Division A upon the establishment of FRV or employees subsequently employed to perform the work in a classification in Division A.

• [22] Clauses 6.2.3 (for Division A) and 6.3.3 (for Division B) involve a point in time assessment based on an employee being a "transferred employee" or being subsequently employed in, respectively, Division A or B. By contrast, clauses 6.2.4 (for Division A) and 6.3.4 (for Division B) have general application.

• [23] As there was no dispute that SSO Waterson was performing the work and duties of a Division A employee in a classification or occupation covered by Division A, it was the terms and conditions of Division A that applied to him while performing that work. As clause 92.12 is located in Division B of the Agreement, SSO Waterson was not entitled to the allowances under that clause.

Issue 2 - can clause 92.12 apply to district-based Commanders?

• [24] The second issue for determination encompasses two related inquires. The first inquiry is whether clause 92.12 can apply to work performed by an employee acting in a position higher than Senior Station Officer, at least so far as they are performing district-based work as distinct from station-based work. The second inquiry is whether, assuming that clause 92.12 can apply, did it apply to the particular circumstances of SSO Connor (and SSO Waterson in the event that the early conclusion for him was incorrect)?

• [25] Clause 92.12 has a drafting infelicity, which played a central role in the different positions taken by the parties to the construction of the clause. The drafting infelicity is that the chapeau to clause 92.12.1 refers to duty away from an "appointed location", a term also used in clause 92.12.1.1, which requires the distance between an "appointed location" and the "duty location" to be greater than 100km.

• [26] For relieving work undertaken between 50km and 100km away, clause 92.12.1.2 applies. The drafting infelicity is that this subclause does not use the terms "appointed location" and "duty location" but instead uses the terms "appointed station" and "duty station".

• [27] The terms "appointed location" and "duty location" are not defined. By contrast, the terms "appointed station" and "duty station" are defined, with the definitions located in clause 11. Specifically, by clause 11:

"Appointed station means the station of the brigade to which a Firefighter or Station Officer is appointed."

"Duty station means the station at which a Firefighter or Station Officer is carrying out his or her normal duties, whether the Appointed Station or not."

• [28] There is no definition of "Firefighter" or "Station Officer", despite the capitalised terms used above suggesting a defined term. However, and correctly in my view, FRV refers to the classification structure in clause 12 of Division B. Clause 12.2 identifies various classifications. FRV says classifications 12.2.1 (Recruit Firefighter) through to 12.2.8 (Senior Leading Firefighter) are "Firefighters" for the purposes of the definition of "Firefighter" as it appears in the above definitions of "appointed station" and "duty station". FRV also states that classifications 12.2.9 (Station Officer) and 12.2.10 (Senior Station Officer) are each a "Station Officer" for the purposes of that definition as used within the definitions of "appointed station" and "duty station".

• [29] Commanders are a rank above the station officers and are neither a "Firefighter" or "Station Officer" for the purposes of that definition as used within the definitions of "appointed station" and "duty station".

• [30] The significance of this issue is that, on FRV's case, on-shift firefighters and station officers are appointed to specific stations. By contrast, with limited exceptions, Commanders are appointed more generally to a "district". Commanders do not have a "appointed station" or "duty station".

• [31] Returning to the drafting infelicity within clause 92.12, FRV contends that that the terms "appointed location" and (the defined term) "appointed station" must be read interchangeably, as ought the terms "duty location" and (the defined term) "duty station".

• [32] It follows, on FRV's analysis, that clause 92.12 is only intended to apply to station-based employees who are appointed to one station/location and are relieving at another station/location. In circumstances where the work away from the appointed station/location is not station-based, clause 92.12 is said to be inapplicable. Put another way, the references to a "station" and the proposition that Commanders are not appointed to a "station" (they are appointed to a "district") demonstrates a textual intention to the effect that clause 92.12 does not apply to ranks other than firefighters or station officers.

• [33] On the issue of whether the terms "appointed location" and "duty location" should be used interchangeably with "appointed station" and "duty station", the UFU contends that the text of clause 92.12 is clear and that it is inappropriate to limit clause 92.12.1 to ranks below Commander. The UFU notes that the chapeau to clause 92.12 is directed to "employees" generally and the clause falls within Part A of Division B, which is appliable to all employees.

• [34] The UFU's construction on this issue is ultimately to be preferred. So far as the inconsistency in terminology between clauses 92.12.1.1 and 92.12.1.2 requires resolution, a construction resulting in clause 92.12 applying to "employees" is preferred. That construction is supported by the direct text of the chapeau - which applies simply to an "employee" and to an "appointed location" - and also to the location of clause 92.12 in Part A of Division B, where Part A are conditions applying to "all employees". Recourse to the historical genesis of clause 92.12, set out above, supports the UFU's preferred construction.

• [35] I do not accept FRV's contention that the presence, in clause 92.12.1.2 of the Agreement, to the terms "appointed station" and "duty station", are a structural signal that the relieving allowance under clause 92.12 is more generally confined to operational firefighters and station officers (but not ranks above). If clause 92.12 was to be confined in operation to firefighters and station officers, the route to do so through clause 92.12.1.2 is a challenging one.

• [36] This is also a matter where the historical antecedents of the Agreement aid in interpreting the intention expressed by clause 92.12 of the Agreement.

• [37] Prior to the CFA 2010 Operational Agreement, the Country Fire Authority / United Firefighters Union of Australia Operational Staff Enterprise Agreement 2008 (Operational Staff Agreement 2008) applied to various classifications.

• [38] Appendix G of the Operational Staff Agreement 2008, which was titled "Scheduled Award", reflected a number of terms in the then Victorian Firefighting Industry Employees Interim Award 2000. The application clause of the Operational Staff Agreement 2008 was clause 4, and that clause identified the employees covered by the enterprise agreement as being "all employees who are engaged in any of the occupations specified in the Scheduled Award" (i.e. Appendix G).

• [39] Clause 2.9 of Appendix G did not apply to the rank of Commanders or ACFOs. The highest operational rank for a firefighter was a Leading Firefighter (at clause 2.9.8 of Appendix G) and for an officer was Fire Officer Grade 2 (at clause 2.9.10 of Appendix G).

• [40] Clause 10.4 of Appendix G of the Operational Staff Agreement 2008 addressed the circumstances in which employees would be entitled to an allowance for performing relieving duty away from their appointed station. The clause was titled "Relieving allowance - firefighters and fireofficers" and was relevantly as follows:

10.4.1 An employee required to do relieving duty away from their appointed station shall receive:

10.4.1(a) If the distance between their appointed station and their duty station is greater than 100 kilometres measured by the shortest distance by road in accordance with the agreed schedule of distances:

10.4.1(a)(ii) when off duty, the cost of reasonable accommodation, not at the duty station, dinner and breakfast, and a meal allowance; and

10.4.1(a)(iii) the expenses as prescribed in 10.3. for the journey to their duty station, prior to commencing relieving duty at the station and for the return journey, at the completion of the tour of relieving duty at the station.

10.4.1(b) If the distance between their appointed station and their duty station is between 50 and 100 kilometres measured by the shortest distance by road in accordance with the agreed schedule of distances: ..."

• [41] The terms "appointed station" and "duty station" were defined in clause 2 of Appendix G as follows:

"Appointed station means the station of the brigade to which a firefighter or fire officer is appointed"

"Duty station means the station at which a firefighter or fire officer is carrying out his or her normal duties, whether the appointed Station or not"

• [42] While "firefighter" and "fire officer" were not defined, it is clear that they referred to the eight classifications of firefighter in the classifications and the two levels of fire officer in the same.

• [43] The CFA 2010 Operational Agreement made a change to the classifications covered by the previous agreement. The CFA 2010 Operational Agreement added in classifications above the rank of fire officer, namely Commander and ACFO. The CFA 2010 Operational Agreement was structured into Parts A to G. By clause 7, Part A was expressed to apply to "all employees", Part B to "Firefighters and Station Officers", and Part C to "Operations Managers/Operations Officers". Clause 67 in Part B listed eight classifications of firefighter (up to Leading Firefighter) and two classifications of officer, now being "Station Officer" and "Senior Station Officer".

• [44] Under the CFA 2010 Operational Agreement, the relieving allowance clause was clause 38.10, located in Part A for "all employees" and was now titled "Relieving allowance", with the reference to "firefighters and fire officers" in that heading removed.

• [45] The chapeau to clause 38.10 began "An employee required to or who agrees to do relieving duty away from their appointed location shall receive:.." That is, the language of "appointed location" had replaced "appointed station". The term "Appointed station" remained a defined term (as did "Duty station"), referrable to a "Firefighter or Station Officer".

• [46] Clause 38.10.1(a) began "If the distance between their appointed location and their duty location is greater than 100 kilometres ...". Again, the terms "appointed station" and "duty station", as used in the Operational Staff Agreement 2008 had been replaced with "appointed location" and "duty location".

• [47] By contrast, clause 38.10.1(b), which dealt with circumstances for distances between 50km and 100km referred to distances between "appointed station" and "duty station", as was the language of the Operational Staff Agreement 2008. This appears to be the genesis of the drafting infelicity referred to above. There is no apparent explanation for the differing terminology between clauses 38.10.1(a) and (b). The best explanation appears to be oversight. The difference in drafting was propagated through to the Agreement, when the terms of the CFA 2010 Operational Agreement were varied to their current form as they appear in Division B of the Agreement.

• [48] The introduction of ranks above fire officers after the Operational Staff Agreement 2008 in circumstances where the relief allowance clause was included in Part A for all employees, together with the other amendments, leaves little doubt as to the objective operation of clause 38.10.1 of the CFA 2010 Operational Agreement. The objective operation of clause 38.10.1 of the CFA 2010 Operational Agreement was not intended to be modified, even though it was renumbered, when that enterprise agreement was varied to become the current Agreement.

• [49] For completeness, FRV contended that the "agreed schedule of distances" was a further matter supportive of its preferred construction. The agreed schedule of distances is important because the distances measured "in accordance with" that schedule determines whether an employee falls within the relieving allowance under clause 92.12.1.1 (i.e. distances greater than 100km) or under clause 92.12.1.2 (i.e. distances between 50km and 100km).

• [50] There was some dispute as to which document constituted the agreed schedule of distances, although I consider the best evidence before me was that it was a document most recently agreed to in November 2016. A copy of that schedule was contained in the evidence of ACFO Pröbstl.

• [51] The agreed schedule of distances is a table expressed to list "Time and Distance (hours, minutes and kilometres)". The table lists 38 locations in columns and also to the same number of rows across. For example, one row is labelled "Bendigo" and a column is "Ballarat City". The table indicates at the intersection of row Bendigo with the column Ballarat City, in one entry, "126" and "1:36" for another entry, which is evidently intended to show 126km between the locations and 1 hour and 36 minutes of travel time. There are some "Notes" included on the agreed schedule of distances but none that shed light on the dispute before the Commission.

• [52] In a supplementary witness statement, ACFO Pröbstl gave evidence that all but three of the 38 locations listed in the agreed schedule of distances refer to a "fire station" and not other locations where work may be performed by Division B employees such as "district headquarters". The three exceptions were the Burwood East Headquarters of the CFA and two 'Victorian Emergency Management Training Centres, with one in Craigieburn and the other in Bangholme. I accept ACFO Pröbstl's evidence in this respect.

• [53] To put the issue in sharper focus, FRV then contend that, taking the example of Wangaratta (where SSO Connor was acting as Commander), there is a Wangaratta fire station and a separate Wangaratta district office. They are in different locations (about 2 or 3 kilometres apart, according to an explanation from the bar table.)[2] The agreed schedule of distances refers simply to "Wangaratta", but I proceed on the basis that this is to the Wangaratta fire station, not to the district office.

• [54] In addition to the general contextual support FRV provides to its preferred construction of clause 92.12, FRV rely on the fact that the most recent version of the agreed schedule of distances (i.e. from November 2016) was the document in existence at the time the CFA 2010 Operational Agreement was varied in 2020 to form part of the Agreement. FRV contends that the agreed schedule was necessarily a document that, objectively, was in the minds of the parties moving the variation (i.e. FRV and the UFU) in 2020. It follows that the agreed schedule of distances can and should inform the construction of clause 92.12, so far as it indicates that clause 92.12 is only intended to apply to on-shift firefighters and station officers. According to FRV, this intention is supported because the table (with the three exceptions it says can be disregarded) deals with distances between "stations" and Commanders do not work at "stations" (but districts).

• [55] The UFU contend that recourse to the agreed schedule of distances is inappropriate to construe the Agreement, as the Agreement was itself a pre-existing enterprise agreement, namely the CFA 2010 Operational Agreement (as varied). I accept the FRV's general premise that 2020 is the appropriate time for construing the Agreement, at least as it pertains to a clause that was materially varied at that time, although it makes no difference to the case at hand.

• [56] I do not consider that the agreed schedule of distances provides assistance in construing the substantive provisions of clause 92.12. Reliance on the agreed schedule of distances to affect or inform the substantive operation of clause 92.12 is a circuitous pathway that does not, objectively, provide the support that FRV seeks. I refer briefly again to my earlier observations about clause 92.12, its chapeau and the clause's location in Part A, for "all employees" instead of being located in Part B for "Firefighters and Station Officers".

• [57] For clause 92.12, the agreed schedule of distances is a mechanism to determine which limb of clause 92.12.1 applies - i.e. the limb pertaining to distances from 50km to 100km, or the limb pertaining to distances exceeding 100km. In ascertaining which limb an employee might fall into, that assessment must be "in accordance" with the agreed schedule of distances. Where the two locations in question are specifically listed in the agreed schedule of distances, ascertaining which limb might apply is straight forward. In other cases, there might be a greater challenge in ascertaining what is "in accordance" with the schedule but the fact that the schedule does not list a specific location does not affect the task to be performed.

• [58] The agreed schedule of distances is also referred to in clause 28 and clause 119 of Division B. Clause 28 deals with "Conditions for employees participating in consultation etc" and clause 119 deals with "Payment for attending interviews/appeals". Both clauses are located in Part A, for all employees. Clause 28.4.3 establishes an entitlement for travel time for certain consultation meetings, with the travel time calculated "in accordance with the agreed schedule of distances based on the distance between the persons work location or place of residence (wherever they are leaving from/returning to) and the location at which the meeting is being held". Clause 119.1.1 similarly establishes an entitlement for an employee to be paid for travel time to and from an interview (or other selection component) or appeal at the agreed schedule of distances rates, based on the distance between the employee's normal work location and the location of the interview/appeal. It is unrealistic to expect that these clauses are confined to travel time between places specifically listed in the agreed schedule of distances. It is also unrealistic to consider whether they are confined to firefighters and station officers (as I am being urged to accept for clause 92.12).

• [59] In summary, the agreed schedule of distances is not intended, by side effect, to confine the substantive operation of clause 92.12. The role of the agreed schedule of distances in clause 92.12, while important, is subsidiary to the anterior issue of whether an employee is "a reliever or who agrees to do relieving duty away from their appointed location".

Issue 3 - were SSO Waterson or Connor performing relieving duties?

• [60] For an entitlement under clause 92.12.1 to arise, it is necessary for an employee to be "a reliever or who agrees to do relieving duty away from their appointed location". The term "relieving duties" is not defined.

• [61] While FRV's case was run primarily on the basis of the first two issues, above, FRV initially contended that there was a third issue, which was that each of SSO Waterson and Connor were not performing relieving duties. Rather, as FRV's written submissions stated at the time, "they were performing acting up duties".

• [62] That third argument was ultimately not pressed by FRV[3]. I return to this below.

• [63] I will record at a high level only the contentions of the UFU. For SSO Connor, while his substantive role was a reliever (a matter not in dispute), the UFU did not contend he was acting as a reliever but, rather, in his acting role he was performing "relieving duties". The concept of "relieving duties" was said to be wider that the specific role of a "reliever" established by Division B. In support of this position, the UFU drew attention to various other provisions in Division B dealing with FRV's wider obligations to provide "relief" support. In response to the possible characterisation that higher duties and relieving duties are "different and mutually exclusive", the UFU acknowledged that it "may be accepted to the extent that higher duties and relieving duty may differ." However, the UFU rejected the suggestion in FRV's initial position that they are "mutually exclusive".

• [64] ACFO Pröbstl gave evidence that, generally, there were three ways in which operational employees change positions within FRV on a temporary basis: relieving; temporary transfers or secondments; and higher duties. For temporary transfers or secondments, he stated that the "difference between transfers and relieving work is not a rigid one". ACFO Pröbstl's interpretation of matters, while genuinely held, is not a matter that can inform the interpretation or application of the Agreement, but his observation that the line between different types of position changes and relieving work not being a "rigid" one is fair in the sense that the position is unclear.

• [65] While the UFU accepts that higher duties and relieving duties may differ, it takes a broad view of what is captured as "relieving duties". For example, in the case of day workers, the UFU points to clause 47.1 which states that FRV will address fatigue management and employees' health and wellbeing by providing adequate "relief" where required to prevent employees from being negatively affected by the accessing of their leave or their absence from the workplace. Clause 47.2 then states "leave means time in lieu, and all other types of leave, and absence means any absence from a normal role including but not limited to higher duties, training courses and project work." Clause 47.3 states that "relief" will be provided "for all absences or leave".

• [66] Whatever the circumstances are where higher duties and relieving duties do not coincide, that is not a matter necessary for me address for this proceeding.

• [67] For SSO Connor in the present case, I am satisfied he was undertaking "relieving duties" within the meaning of clause 92.12.1. I have come to that conclusion from his evidence and the fact that FRV's case was pressed only on the first two issues (above). SSO Connor's evidence describes (albeit at a high level only) the fact that he was not performing a single, higher duty role but performed multiple, short-term duties for other Commanders who were absent for various periods of time.[4]

• [68] The position for SSO Waterson is different. Although I have already concluded that SSO Waterson was not entitled to an allowance under clause 92.12 of Division B because that clause did not apply to him, I also consider that secondments from Division B positions to Division A positions are not a "relieving duty" for clause 92.12. The circumstances of SSO Waterson being seconded to the Building Safety Regulation Unit raised an issue on how that secondment was effected. The Agreement is very proscriptive as to the circumstances in which secondments can occur. While the mechanisms supporting SSO Waterson's secondment remain, to me at least, obscure, there is no question that he performed the work. There is also no doubt that work, within the Building Safety Regulation Unit, was work within the structure of Division A. Wherever the boundaries of "relieving duties" under clause 92.12 of Division B might lie, they do not encompass relief work for Division A duties. The wider obligations of FRV to provide relief under Division B - for example, clause 47 referred to earlier - do not support the very broad notion of relief for work covered by Division A.

• [69] The answers to the questions asked for arbitration are therefore:

• Question 1 - 'No'. No relieving allowance was payable pursuant to clause 92.12.1.1.1 of Division B the 2020 Agreement to Luke Waterson with respect to his work as an Acting Commander in the FRV Building Safety Regulation Unit (formerly known as the Building Codes Australia Unit) at Burnley for the periods identified.
• Question 2 - 'Yes'. FRV should have paid a relieving allowance pursuant to clause 92.12.1.1.1 of Division B of the 2020 Agreement to Scott Connor with respect to his work as an Acting Commander at Wangaratta (CFA District 23 Headquarters) for the periods identified.

• [70] For completeness, the parties indicated that in the event that either of my answers to the questions posed for arbitration were 'yes', the parties would resolve any issues of quantum between them. The dispute is accordingly concluded.

M. Felman of Counsel with A. Thomas of Counsel, instructed by T. Molan of MinterEllison, for the Respondent.

[1] [2020] FWC 3428 (Gostencnik DP).

[4] See paragraph [13] of SSO Connor's witness statement.

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