T13004
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 United Firefighters Union of Tasmania TASMANIAN FIRE FIGHTING INDUSTRY EMPLOYEES AWARD
Interpretation - Clause 3 - Scope and Part II, Clause 4(i) Career Paths - Lateral entry by experienced firefighters - order issued REASONS FOR DECISION [1] This is an application by the United Firefighters Union of Tasmania (UFU) for an interpretation of Clause 3 (Scope) and Clause (4)(i) of Part II (Lateral entry) of the Tasmanian Fire Fighting Industry Employees Award (the award). [2] Clause 3 Scope provides:
[3] Clause 4(i) of Part II Career Paths provides:
[4] The application by the UFU followed a request by a TFS employee to the State Service Commissioner (SSC) for a review of an appointment made by the Tasmania Fire Service (TFS). The TFS advised the SSC that it was more appropriate that the matter be determined by the Tasmanian Industrial Commission (TIC) as it relates to the application and interpretation of an award provision. [5] The parties agreed that the matter should be referred to the TIC and accordingly an application was filed by the UFU. [6] The application said:
The UFU [7] The UFU noted that the issue in dispute is between the UFU and the TFS about the application of an award provision and has "nothing to do with the Union and its relationship with any of its members, including members of other branches."1 Further, "This application is nothing to do with the relative merits or qualities of these individuals, rather this application is about what we thought was an honourable consent agreement between the TFS and the union but which now the TFS is seeking to repudiate."2 [8] Mr Warwick, appearing for the UFU, said:
[9] The UFU argued that the agreement between the parties did not allow direct appointment by a lateral applicant to the position of Station Officer. The UFU said that such procedure would reduce career options for TFS members perhaps creating an inference that lateral applicants are more preferable and more skilled than TFS employees. [10] The award defines the Leading Firefighter at Clause 3(e) as follows:
[11] It was the submission of the UFU that "Leading Firefighters from within the TFS system and qualified officers from outside the TFS system should have to seek promotion to Station Officer level on an equal basis of merit."4 "We say the qualified Station Officers from outside should come into the job at Leading Firefighter level and compete with all the other qualified Station Officers, that is Leading Firefighters, who are awaiting promotion to a vacant Station Officer position on merit."5 [12] The area of difference between the parties seems to be that the TFS is of the view that it can directly appoint a lateral entrant to the position of Station Officer. The UFU argued that the agreement they reached which resulted in clause 4(i) of Part II being included in the award, by consent, does not allow such approach. The UFU submitted that it was their understanding that the agreement would limit a lateral applicant to be engaged at the Leading Firefighter classification and not at the Station Officer classification. Further, Mr Warwick said that probably to date there had been no lateral entrants engaged who had gone straight to the Leading Firefighter level. [13] The UFU has long accepted "that the TFS has the right to appoint outsiders directly into Station Officer positions when there are no internal applicants, that is when no Leading Firefighters apply."6 [14] The current dispute has arisen as the TFS has selected an external applicant to a Station Officer position over an internal Leading Firefighter applicant. The TFS [15] The TFS generally agreed with the history as provided by the UFU, albeit the dates differ but the intention appears to be clear. The TFS submitted that Clause 4(i) of Part II of the award "...was included to enable the appointment of experienced firefighters to the Tasmanian Fire Service above the recruit level, subject to agreement between the parties."7 [16] Further it submitted that:
[17] Ms Fitton, for the TFS, submitted that a legal opinion was sought prior to the insertion of the lateral entry provision. She said that the advice received was that "the scope of the award did not apply to a person not employed in the firefighting industry operated by the TFS. Therefore the provisions of clause 8 (of the then Federal award and now clause 4 of Part II of the State award) could also not apply to a person not employed in the firefighting industry who is applying for appointment."9 [18] As the then clause 8 and the current clause 4 prescribe advancement within the classification structure it is obvious the clauses could only have application to TFS employees. [19] The TFS argued that there is no barrier to the appointment of Station Officers from outside the TFS, suggesting that clause 4(i) of Part II was irrelevant to engagement of firefighters at any level. [20] Ms Fitton said: "The only reference to Station Officer is in clause 4(e) of Part II ....the whole of clause 4 [of Part II] is entitled career paths and we submit that is exactly what it is; it is about career paths for firefighters once you are inside the service and do not relate to people being appointed from outside."10 [21] Prior to the variation to the award to allow lateral entry Ms Fitton submitted that the custom and practice had been for an applicant from outside the TFS, regardless of skills, competencies, experience and qualifications, was required to enter at the recruit level of the classification scale and then advance through the career path structure. The agreement to allow lateral entry applicants, which resulted in the insertion of clause 4(i) of Part II, was intended to remove the previous custom and practice. [22] The TFS also argued that an appointment to Station Officer was excluded from the definition of an industrial matter and is therefore a matter which cannot be included in an award. [23] Ms Fitton referred to the s.3(5) of the State Service Act 2000 which she said provides:
[24] S.3(5) prescribes: "If there is an inconsistency between a provision of this Act and any other law in force in this State, other than an award, being a law that makes specific provisions with respect to the appointment of a person to the State Service or the promotion of a permanent employee, an employee included in a class of employees or any matter relating to the employment of an employee, the provision of that law is to be read subject to the provision of this Act." [25] The TFS submitted that "Clause 4(i) of Part II of the award deals with lateral entry, in other words, appointment to the TFS by experienced firefighters. It is submitted the award can only be valid in this respect in the context of providing qualifications for such appointments. The clause itself does provide for qualifications for appointment to positions up to and including Leading Firefighter, i.e. the competency and practical firefighting experience, and therefore the Minister must adhere to these requirements when making appointments to these positions." What does the Scope clause mean? [26] The Scope clause is clear and unambiguous and can only apply to persons employed by the TFS. No employment relationship exists with any other persons. It is more than a technicality, as argued by the UFU; the award provisions cannot apply to any persons other than those employed by the TFS and subject to the classifications found in the award. Nevertheless an applicant for any position which is prescribed by the award would be required to satisfy the criteria of the relevant classification definition when applying for or being appointed to a position. [27] Whilst on this occasion I agree with the advice from the Solicitor General, the TIC is not bound by such advice and is required to reach its own conclusions on interpretation of awards and agreements. History [28] Clause 4(i) of Part II of the award represents an agreement reached by the parties and the clause was inserted into the award by consent. The submissions of both the UFU and the TFS support that position. The amendment was to address what had been a custom and practice which required firefighters engaged from outside the TFS to commence at the recruit level regardless of skill and experience. The award provides at Clause 3, Classification Descriptions and Standards, and at Clause 4, Career Paths. Clause 4 reflects how an employee will advance through the career structure within the TFS. Are Clauses 3 and 4 mutually exclusive? [29] The difference between the two clauses relates to the method of advancement through the TFS career structure as opposed to classification definitions. Clause 4, Career Paths, provides that at each level from Recruit (ii) an employee is required to demonstrate "the successful achievement of competencies established by the TFS." Clause 4 is therefore intended to apply only to current TFS employees. Clause 3, Classification Descriptions and Standards, details the skills, competencies, experience and qualifications that an applicant or employee in a described position must hold. There is little or no, relationship with the application of Clause 4 Career Paths. [30] The clauses are in my view mutually exclusive. What does clause 4(i) of Part II mean? [31] The TFS submitted that any person with the appropriate qualifications and competencies can apply for any position within the TFS. I agree with that submission but the submission ignores the history of custom and practice and disregards the agreement reached between the parties to change that custom and practice. [32] The TFS submitted that the award is silent on "qualifications for Station Officer and above." The award describes at clause 3 the duties for Station Officer and above and clause 4 prescribes the qualification for Station Officer and Senior Station Officer which requires any promotion to be in accord with the structure and an applicant is required to be in "possession of TFS qualifications for promotion..." This requirement could only apply to TFS employees. [33] The definition of Leading Firefighter at Clause 3(e) provides that he or she is "qualified to act as a Station Officer and to apply for permanent appointment to a Station Officer level position." The award does not restrict an application by any suitably qualified person. Mr Warwick said that "...opportunities for Leading Firefighters to be promoted to Station Officer level are rare. They are inextricably linked to the rate of Station Officer resignations, or even rarer, promotions above Station Officer level. And so we negotiated the lateral entry clause in good faith with the employer for very good reasons."12 [34] Further he said "The thrust of the lateral entry clause is as follows, under this clause the employer is entitled to employ experienced firefighters from outside the TFS at all pay levels up to and including pay point 7, and that is Leading Firefighter, pay point 7, but not above."13 Is clause 4(i) of Part II relevant? [35] The only relevance of clause 4(i) of Part II is to reflect the agreement between the parties otherwise there would be no need for it to be found in the award. It would seem, and the submissions support the fact, that the parties agreed to limit the employment of firefighters from outside the TFS, the agreement limited lateral applicants to the position of Leading Firefighter despite the fact that the TFS is able to consider an application for any position from any applicant. [36] The consent variation allowed entry, with the appropriate skills, competencies, experience and qualifications, at the Leading Firefighter level with the requirement that the TFS MUST consult its employees to implement the provisions of the clause. Does the TIC have Jurisdiction? [37] S.3 Definitions of the Act defines an industrial matter as being:
[38] The positions the subject of this matter would be either appointments and/or promotions and as such are outside the jurisdiction of the TIC. Considerations [39] It is stating the obvious that the Scope clause can only apply to employees of the TFS. Clause 4 is all about advancement within the TFS and cannot have application to external applicants. The relevant clause for external applicants is Clause 3 which provides classification descriptions and standards. Any person can make application for employment but would need to satisfy the requirements of clause 3 in respect to any position sought. [40] Ms Fitton submitted that "the award clause is silent in clause 4(i) [of Part II], positions above the Leading Firefighter level, and it is argued that as the next levels require a merit process, the lateral entry clause has no relationship to these levels and therefore there is no barrier to appointment of Station Officers and above from outside the TFS."14 [41] I disagree with the submission of the TFS that clause 4(i) of Part II is silent in respect to positions above that of Leading Firefighter. The clause prescribes: "The appointment and advancement of these persons, up to and including the level of Leading Firefighter (classification 3(e)) is to occur depending on the level of competency and experience in each individual case ...." [42] The clause, if it were applicable, may even deny a lateral applicant any advancement beyond that of Leading Firefighter but it currently limits the lateral entry to the level of Leading Firefighter. Why does Clause 4(i) of Part II exist? [43] The parties are in agreement as to why clause 4(i) of Part II was inserted into the award. They agree it was to address shortages of skilled firefighters as well as addressing a custom and practice which, as submitted by Mr Warwick, was "unsustainable within the context of the SS Act and modern employment practices."15 [44] If there was no agreement between the parties to deal with those issues there would be no need for clause 4(i) of Part II to be in the award, it serves no other purpose It could be argued that it has been inserted in the wrong section of the award which nullifies its application. Where to from here? [45] An interpretation is based on what the words in an award or agreement say. The Commission can only give the normal and everyday meaning to those words and consider any other award or agreement clauses which are relevant to the clause the subject to interpretation. [46] The agreement between the parties reached some 10 years ago was an arrangement to address a potential shortage of qualified and experienced firefighters; it also represented the end of a custom and practice which the TFS submitted created a `closed shop' and restricted the employment of experienced and skilled firefighters from other firefighting organisations. [47] The agreement between the parties was a significant change in culture, not achieved easily according to the UFU. Both parties have a moral obligation to comply with the terms of their agreement. [48] It seems to me that the TFS is relying on advice that the Scope clause does not apply to non TFS employees, I agree that it does not and could not. The award prescribes the criteria for each classification of employee in Clause 3 which has application to current and future applicants. [49] Further it appears clear that the purpose of the agreement between the parties which resulted in the clause 4(i) of Part II amendment was to address a number of operational issues but, according to Mr Warwick and not refuted by the TFS, was not intended to reduce the ability of TFS employees to activate their career path options. Neither was it intended to make advancement more accessible and attractive to lateral applicants than to TFS employees. The award deems TFS Leading Firefighters to be qualified to act as Station Officers by reference to clause 3(e) however to achieve a permanent position of Station Officer by promotion, a current Leading Firefighter must possess TFS qualifications for promotion (or a vacancy must exist). Accordingly it would be difficult for a lateral entrant at Leading Firefighter level to have the required TFS qualifications to act as Station Officer without first serving some time as a Leading Firefighter. [50] In my view there is an inconsistency between the classification definitions and the requirements for career path advancement at the Leading Firefighter level which perhaps would justify the UFU agreeing to the amendment but limiting application to the Leading Firefighter level. [51] The TFS submitted that they are aware of what was agreed but have had some legal advice which allows them to no longer honour that agreement. In my view the advice in respect to the Scope clause is irrelevant to the issue in dispute. If, as appears to be the case, the lateral entry clause should be re-drafted and placed elsewhere in the award then that is what the parties should consider. [52] It is important that the integrity of any agreement is honoured in all circumstances, whatsmore if the TFS no longer wishes to honour the agreement they reached in respect to lateral entry then they should advise the UFU accordingly. Whilst I agree that the award allows the TFS to offer employment to any suitably qualified person it is difficult to ignore clause 4(i) of Part II and its intent regardless of the inadequacy of its wording and location in the award. [53] S.43(1A) requires that the President MUST:
[54] I am satisfied that a declaration would be inappropriate and I direct that the parties make the necessary application to vary the award to clarify the intent of their agreement. [55] I so order. [56] The Commission will chair a conference with the parties to assist the parties resolve the issue in dispute.
P L Leary Appearances Date and place of hearing 1 Transcript PN11
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