T13315
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984 United Firefighters Union of Tasmania and Minister Administering the State Service Act 2000
Interpretation - application amended to industrial dispute - application further amended - mode, terms and conditions of employment - senior station officer and district officer - application dismissed REASONS FOR DECISION [1] On 21 November 2008, the United Firefighters Union of Tasmania (the Union) applied to the President, pursuant to Section 43(1) of the Industrial Relations Act 1984, for an interpretation of various conditions contained in the Tasmanian Firefighting Industry Employees Award 2007. However, in a letter dated 11 December 2008, the Union sought to amend the application to Section 29(1) for hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 (the Minister) arising out of a dispute concerning the mode, terms and conditions of employment - senior station officer and district officer. [2] Following an informal meeting between the parties on 5 December 2008, the matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania, Tuesday 24 March 2009 at 9.30am. [3] Mr Garry Johnson was a Senior Station Officer (SSO) working in the north-west region of the state as an employee of the Tasmanian Fire Service (TFS). He was appointed to the position in July 2004 having attained the appropriate qualifications. In April 2007 the incumbent Mersey District Officer (DO), Mr Paul Hill, took leave. Mr Johnson was appointed to the position of Acting District Officer effective from 10 April until 2 May 2007. [4] On 10 April 2007 a major fire broke out in the district. On 11 April 2007 an Incident Management Team (IMT) was assembled to direct the fire fighting efforts. Mr Johnson was appointed logistics officer for the duration of the incident from 11 April to 15 April 2007 this was during his tenure as Acting DO. As a consequence Mr Johnson worked some overtime hours. [5] The applicable award at the time was the Tasmanian Fire Fighting Industry Employees Award of 2000 (the award). The award supported an industrial agreement, the Tasmanian Firefighting Industry Employees Industrial Agreement 2004 (the agreement). The State Service Act 2000 (the SSA) also had application. [6] The agreement incorporated an annualised amount for expected overtime in the DO’s salary. DOs were not entitled to claim additional pay for actual overtime. SSOs, on the other hand, were entitled to claim pay for any overtime hours worked. The practice, in the main, was to have any overtime pre-approved before employees worked it. [7] Mr R Warwick, for the Union, claimed that Mr Johnson was owed payment for the hours of overtime he had worked during that period because as an SSO he was entitled to be paid for such overtime. [8] Ms R Pearce, for the Minister, argued that Mr Johnson was the acting DO and as such enjoyed the remuneration commensurate with the position and, in concert with the agreement, does not include payment for overtime actually worked. [9] Mr Warwick rejected the Minister’s position and argued that even though an employee is acting in a more senior role than his substantive position and receiving the appropriate higher remuneration such a situation does not deny the employee access to the terms and conditions of his substantive position. He said “… a senior station officer is a qualified district officer awaiting promotion to a vacant position on merit.” (transcript p4, L25) [10] Mr Warwick submitted that DOs work a 320-hour eight-week cycle whereas career fire fighters work a roster of two 10-hour days followed by two 14-hour nights followed by a two-and-a-half day break. SSOs can work either system depending on the role at the time. When a DO goes on leave, typically an SSO steps up to perform the DO role. [11] Mr Warwick said the point of contention in this matter was the question of whether a person doing a more senior role for a period if time was indeed ‘acting’ in that role and assuming the totality of the role to the exclusion of his own substantive role. He said that this point was the whole argument in the instant matter. [12] From Mr Warwick’s description of the role of an SSO, the Commission sought clarification: was the position a ‘holding pattern’ for the DO role. He responded: “Yes, it is. The only thing that it entitles them to do - or two things, is seek promotion to a district officer, or perform those duties as and when required, if there is a need, and it doesn’t actually serve any other purpose than that.” (transcript p6, L5) [13] Ms Pearce rejected Mr Warwick’s interpretation of the substance of the SSO position. [14] Further Mr Warwick said that SSOs fill the ‘big time’ positions on an IMT whereas the SOs are not qualified to do so. [15] Mr Warwick referred to the AIRC Tasmanian Firefighting Industry Employees (District Officers) Enterprise Bargaining Agreement 1997 (Exhibit A2) and cited Clause 12 - Hours of Work. “An employee who is required to work in excess of 40 hours per week will not be entitled to overtime entitlements described in Clause 30 of the Tasmanian Firefighting Industry Employees Award 1995, except as provided for in Clause 14 and 23 of this Agreement, as these entitlements have been included as annualised salary components.” [16] At Clause 14 - Major Incidents it states: “Where an employee is associated with a major incident (as defined) which requires working abnormal and excessive hours by mutual arrangement, an employee shall be entitled to take time off in lieu for recovery purposes.” [17] At Clause 23 it refers to accessing public holidays. [18] Mr Warwick stated that at Clause 13 - Salaries Payable, there is a notation of a 6% productivity increase to compensate for overtime. He went on to say that the employees at the time sought to have the agreement (Exhibit A2) registered with the Federal Commission. He said: “And I would put it to you, Commissioner, that these circumstances suggest that at least the employees in question did not have a very good idea of what it was that they were doing.” (transcript p9, L15) [19] Mr Warwick argued that the TFS had four opportunities in 2000, 2002, 2004 and 2007 during bargaining negotiations to ‘clarify the issue’. He further argued that the TFS ‘bargained removal of the district officers overtime rights’ in 1997. [20] Mr Warwick said that ‘they gave no other employee employed under the award the right to have a view about that’. He was referring to annualising predicted overtime into the DOs’ salary package. He said ‘specifically they did not give Mr Johnson a right to have a say’. The Commission in not aware if Mr Johnson was an employee of TFS in 1997. [21] Mr Warwick cited from the Tasmanian Fire Fighting Industry Employees Award, No. 1 of 2007 (Consolidated), at Part IV – Allowances, Clause 1 - Higher Duties Allowance, subclause (a) - Entitlement: “Where an employee is directed by the employer to temporarily perform the duties of an employee with a higher classification, that employee will be paid an allowance equal to the difference between the employee’s own classification and the minimum rate of pay of the higher classified position.” [22] Mr Warwick stated: “There’s nothing in there … that says you are an acting district officer in this case … You do not hold the rights, we say of that position. … It does not expressly say the employees acting in the higher position. … It does not say the employee must accept the conditions that might go with the higher position. … the TFS does not have the right to take away his overtime rights.” (transcript p10, Ls25-40) [23] Mr Warwick argued that: “… Mr Johnson’s right to overtime, as a senior station officer, is a matter of fact, not a matter of opinion, and we say that regardless of the duties he is performing, he has a right to overtime because he is not a district officer …” (transcript p10, L42) [24] Mr Warwick stated that: “The Fire Service created this problem by reaching this agreement with a group of people who really didn’t know what they were doing”. (transcript p11, L10) [25] And further: “This award and agreement do not say that Mr Johnson has to accept the lesser entitlement to overtime that applies to district officers when he is performing a district officer’s duties”. (transcript p11, L35) [26] The Commission sought the following clarification from Mr Warwick: “If he had said, “Look, now, I’ll do the job but I’m going to stay as an SSO because I have the qualifications of a district officer, that I could still do it. Was that opening available to him? (transcript p12, L37) [27] Mr Warwick emphatically responded: “No.” (transcript p12, L40) [28] Ms Pearce stated that it was the Minister’s position that when an employee accepts a higher duties role, the role and associated conditions fall within the influence of the SSA. She said: “It is the minister’s position that where an employee is undertaking higher duties, then the employee has been allocated those duties in accordance with the State Service Act, is undertaking those duties to the full extent of the statement of duties, is entitled to be paid a salary to the same classification level as stated on the statement of duties and is entitled to all of the associated conditions of employment that are attached to that classification, and those will apply to the employee undertaking that work.” (transcript p13, L37) [29] Ms Pearce stated that this view was supported by the SSA, the relevant award and agreements as well as case law. [30] Mr Warwick rejected Ms Pearce’s assertion that the standard practice in the Tasmanian State Service was for an employee who acted in a higher position did so under the conditions of that position. [31] Ms Pearce, at page 15, line 1 of transcript, read from an email sent by John Streets the Regional Chief North-West to all staff. In the email he announces the appointment of Mr Johnson as the ‘Acting Mersey District Officer’ and Ms J Armstrong was to be the Acting District Officer in another area. [32] Ms Pearce also noted that had Mr Johnson been on sick leave at any time during the period he was the Acting DO, his sick pay would have been at the higher DO level, not his substantive SSO level. This, she asserted, indicated that Mr Johnson had assumed the DO role in its totality. [33] Ms Pearce referred to s34 of the SSA. She stated that at subsections (b), (c) and (d) of that section the Head of Agency is given the power to: “(b) to determine duties to be performed by employees; and [34] She further cited s37 of SSA, at subsection (3): “(3) The appointment of a person as an employee is to be – [35] Ms Pearce argued that the appointment of Mr Johnson in an acting position was consistent with CD1. [36] With regard to the salary paid to Mr Johnson while acting DO, Ms Pearce cited the SSA at s38(1): “The terms and conditions of employment of employees are to be those specified in an award relating to persons engaged in the work for which they are employed …” [37] Ms Pearce further asserted that the duties Mr Johnson undertook at the time were detailed in a Statement of Duties entitled ‘District Officer Field’. (Exhibit M3) She said the TFS has DOs working in numerous different functions and as such have since developed a generic classification for DOs, namely ‘District Officer Generic’. [38] Ms Pearce put the proposition that the terms and conditions of the award current at the time of the dispute, namely the Tasmanian Fire Fighting Industry Employees Award of 2000, are largely the same as the contemporary award, the Tasmanian Fire Fighting Industry Employees Award, No.1 of 2007 (Consolidated) and as such she would refer to the most recent document. Mr Warwick did not raise an objection. [39] Ms Pearce argued that Part I – Application and Operation of the Award, Clause 3 - Scope, linked those employees covered by the award to sections 37 and 38 of the SSA. [40] Ms Pearce directed the Commission to Part IV – Allowances, Clause 1 - Higher Duties, subclause (a) - Entitlements, where the award outlines the commitment to an employee undertaking higher duties: “Where an employee is directed by the employer to temporarily perform the duties of an employee with a higher classification, that employee will be paid an allowance equal to the difference between the employee’s own classification and the minimum rate of pay for the higher classified position.” [41] Ms Pearce said that when an employee acts in a higher classification they are subject to the terms and conditions of the higher role and cannot retain their substantive position. They must, she argued, assume the responsibilities and accountability of the more senior role. She said: “You either are a district officer during that period or you’re not, in order to be entitled to a higher-duties allowance.” (transcript p24, L40) [42] Ms Pearce said that the Minister may authorise payment of overtime for fire fighting duties, but this would be done prior to the individual engaging in such activities. It is clear from Exhibit M5, Administrative Instruction Number 05-06, vegetation and bushfires; that during vegetation fires or bushfires DOs are not entitled to paid overtime, but can access TOIL for recuperation purposes. [43] Ms Pearce addressed Exhibit M6, the Tasmania Fire Service Employees Enterprise Bargaining Agreement 2004. She said that Section C(3) – District Officers applied to Mr Johnson in his position as Acting DO. Further, she argued that Clause 97 - Hours of Work specifically states that employees who fall under this section, i.e. DOs, are not entitled to claim overtime as per Clause 30 of the Tasmanian Fire Fighting Industry Employees Award of 2000, because their salary already had an overtime component built into it. However TOIL for overtime for recovery purposes was accessible to DOs. [44] Ms Pearce noted that she could not locate any previous matter before any Commission which had addressed the issue of an employee seeking access to the wages and conditions of his substantive position while receiving a higher duty allowance for acting in a more senior role. [45] Ms Pearce cited an authority1 where Kirby J found that the construction or meaning given to a clause in an award should not be strictly or narrowly interpreted, but should contribute to a ‘sensible, industrial outcome’. She said that the plain English interpretation of ‘higher duties’ was well understood and had been adhered to by numerous SSOs since the agreement of 1997. She said higher duties were ordinarily understood to be the temporary performance of a classification above the substantive classification of the person taking up the acting role. [46] A further point of importance, Ms Pearce said, was that an award and an agreement must be read as a whole and different provisions should not be selectively applied. [47] In Exhibit M7 Ms Pearce cited another authority2 which goes to the natural meaning of the words of an award and the necessity to read those words in the context of the award as a whole. She argued that the Union’s position clearly sought to be selective in applying some but not other elements of the award and agreement. She added that if the Union’s position was accepted, it would mean that when employees acted in a more senior position alongside employees permanently in those positions then two different sets of conditions would apply. She opined that this would be a ludicrous scenario. [48] Ms Pearce then referred to the reverse scenario where DOs, as part of their role, are expected to sign on to an availability roster for which they are remunerated. The TFS, in line with the award, cannot direct SSOs to participate in such a roster. If the SSO while acting DO does not participate in the roster he/she cannot fulfil the requirements of the SOD for the more senior role. Mr Johnson, she said, while acting DO earlier this year, did participate in the availability roster for which he received payment. [49] Ms Pearce argued that should the Union’s position be valid it would mean an SSO acting as a DO would receive the DO salary inclusive of around 5% loading for overtime as well as actual overtime payments. She suggested this proposition was ‘double dipping’ and absurd. [50] Ms Pearce addressed the proposition put by Mr Warwick that the DO provisions in the agreement should not apply because employees like Mr Johnson were not party to it at the time the agreement was made. Her view was that the DOs of the day voted for the provisions as they stood in 1997. [51] Mr Warwick referred to the current agreement which contemporaneously applies to the DOs and which he asserted ‘substantially restored their overtime rights’. He argued this was because the TFS ‘saw the writing on the wall’. He also argued that Exhibit M4, the ‘Statement of Duties - District Officer’ referred to the duties of a DO and did not apply to an SSO. Further he argued that the reference in Exhibit M5 regarding payments for fighting vegetation fires does not say that SSO’s are not entitled to overtime. He argued that Exhibit M6, the 2004 agreement, at Section B(3) - District Officers, only has application to DOs not to SSOs. He claimed that: “It was the fire service who managed to reach an agreement with a group of very uninformed people, without the assistance of their union …” (transcript p38, L40) [52] Further, Mr Warwick argued that Mr Johnson did not know that he could not access overtime payments. He said: “They should have written him a letter and said, “You will be acting as a district officer for this period of time and you will not be entitled to overtime.” It’s their fault that he didn’t know. (transcript p40, L42) FINDINGS [53] This matter centres on the employment status of an employee engaged in higher duties. It was agreed by both parties that Mr Johnson was offered and accepted to perform higher duties over the period in question. It was also agreed that he participated in an IMT during that period and did work overtime. [54] Ms Pearce argued that when an employee accepts a more senior position in an acting capacity that employee assumes the role in its entirety. This includes all responsibilities and accountabilities to the full extent of the SOD of the role, but also enjoys the remuneration commensurate with the more senior role. This arrangement, she said, was in complete accord with the SSA, and in particular outlined the following. [55] At s34 - Functions and powers of the Heads of Agencies: “(b) to determine duties to be performed by employees; and (e) to assign duties to each employee within that Agency and to vary those duties;“ [56] At s37 - Appointment and promotion of employees: “(3) The appointment of a person as an employee is to be – (a) … or (b) for a specified term or for the duration of a specified task.”
“(1) The terms and conditions of employment of employees are to be those specified in an award relating to persons engaged in the work for which they are employed …” (highlighting my emphasis). [58] Ms Pearce argued that it is common practice in the Tasmanian State Service for employees to ‘act’ in more senior roles under the conditions of the higher position. It is my experience that employees ‘acting’ in a more senior capacity is a common occurrence in most industries. [59] Mr Warwick argued on a number of fronts. He argued that an employee does not lose access to the terms and conditions of his substantive position while performing the function of a more senior employee. Further he argued that the agreement and in particular the incorporation of overtime into the annualised salary, was agreed to by ‘uninformed’ employees and although he did not say it, inferred that it lacked validity. Similarly he argued that Mr Johnson was not party to the agreement as it was developed in 1997, again inferring the agreement should not apply to Mr Johnson. [60] Mr Warwick stated that the current agreement had restored, in part, access to overtime for DOs. He argued this development showed that the original agreement was flawed; I take it he was referring to access to overtime. He also argued that the TFS had the opportunity to ‘clarify the issue’ in 2000, 2002, 2004 and 2007 but had failed to do so. [61] Mr Warwick challenged Ms Pearce’s assertion that the SSA allows for the Head of Agency to appoint an employee to a higher position and remunerate that employee as if he/she were in that higher position. He argued that the Head of Agency does not have the capacity to deny an employee the terms and conditions of his substantive position in such a situation. [62] Mr Warwick also ran the argument that the employees were either subject to enterprise bargaining or they were not, in that the agreement should not be influenced by the SSA. I see no conflict in the contents of a bargained agreement being subject to the structure within the SSA. [63] I now turn to the status of Mr Johnson during the period 10 April to 2 May 2007. [64] Mr Johnson was offered and freely accepted to take on the role of DO on a temporary basis. The common term for the practice of an employee taking over a more senior role on a temporary basis is ‘acting’. It is clear from the SSA that when an employee acts in a more senior position that employee is expected to assume the responsibilities and accountabilities that go with the role, in their entirety. In accepting an acting position the employee is appointed to that role as if it were his substantive role for the duration of the term. [65] According to the SSA an employee must be remunerated for holding a more senior position, and in the words of the SSA the employee must be given an allowance to bring his/her remuneration up to the base salary of the more senior position. When an employee accepts an acting position according to the SSA, he assumes the position and therefore, in my view, temporarily relinquishes his substantive position and the associated responsibilities and remuneration. [66] I reject Mr Warwick’s assertion that Mr Johnson had his ‘right to overtime’ as an SSO denied him. During the period in question Mr Johnson was not an SSO he was in every way a DO and entitled to the remuneration appropriate to that role; and as prescribed in s38(1) of the SSA: “The terms and conditions of employment of employees are to be those specified in an award relating to persons engaged in the work for which they are employed …” for that period of time he was employed as a DO. [67] I do not accept Mr Warwick’s assertion that, in his opinion, the relevant employees who originally negotiated the terms and conditions of the agreement were uninformed and this in some way lessens the binding nature of the agreement. Agreements are negotiated for conditions in a time and place and those agreements are on foot until rescinded or re-negotiated regardless of how their content reflects contemporary practice. In the same vein, the fact that Mr Johnson did not have an opportunity to influence the decision the DOs took in 1997 is simply not relevant. Any agreement is made between the parties engaged in negotiation at the time. [68] As Mr Warwick has stated, there were opportunities for the parties to the 2000, 2002, 2004 and 2007 agreements to have the ‘overtime’ issue renegotiated. Unlike Mr Warwick however, who put blame on the TFS for not ‘clearing up the issue’, it is evident that both parties were comfortable with the arrangements all thorough this time. [69] Mr Warwick implied that because in 2008 the ‘overtime’ for DOs was renegotiated and found its way back into the agreement the validity of the pervious agreements should be challenged. I find his position lacks any logic. [70] Mr Johnson was acting DO from 10 April to 2 May 2007 and received the appropriate remuneration for the role as prescribed in the SSA. He did not have access to the remuneration which accompanied his substantive position of SSO during this period. Mr Johnson is not entitled to overtime for the above period. I so find. [71] Under a letter by the Union to the Commission dated 8 April 2009, Mr Johnson submitted what he saw as additional information after the matter had been heard. In his letter Mr Johnson asserted that both Ms Pearce and Mr Warwick ‘missed the basis of the case’. The Commission must deal with the case before it as presented. The content of the additional documentation, in my view, has no material influence on the arguments laid out above therefore I have not directly addressed the content. RECOMMENDATION [72] Mr Warwick suggested that had Mr Johnson been given a letter of appointment outlining the fact that he could not claim overtime then he would have been under no misapprehension of what conditions he was agreeing to by accepting the acting role. This is Mr Warwick’s opinion and was not tested. [73] There was no evidence educed whether Mr Johnson was given a letter of appointment or not. [74] However in many industries, particularly where there are legal obligations such as mining, when a person accepts a position of acting in a more senior role that person is given a formal letter of appointment outlining his responsibilities and the conditions of such appointment. [75] It is my recommendation that the TFS consider such a process in the future. [76] The matter is dismissed. I so order.
Appearances: Date and place of hearing: 1 Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; (2005) 214 ALR 56; (2005) 79 ALJR 703 (9 March 2005) |