IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

INTERPRETATION

This application for interpretation came before the Commission pursuant to an application by the United Firefighters Union (Tasmanian Branch) (the UFU). The application is to interpret Clause 16 of the award - Driver Classification Allowance.

The applicant explained that the need to apply for interpretation was occasioned by the Fire Commissioner's refusal to continue payment of Class I and/Class II Driver Classification Allowances to firefighters on promotion to the position of Station Officer. The UFU contended that Clause 16 does not preclude payment of these allowances to firefighters on subsequent promotion to Station Officer. Mr Devine argued that once classified as a Class III, Class II or Class I Driver the allowance thereby attracted attached at all times to the individual regardless of his classification. The only exception to this, it was conceded, was in relation to Superintendents who were excluded by the award from deriving any benefit from Clause 16.

The provision in question is cast in the following terms:

16. DRIVER CLASSIFICATION ALLOWANCE

In addition to the wage rates and allowances prescribed in this award all employees who are current holders of a drivers licence and who are qualified to drive and operate various classes of vehicles and classified as such shall be paid the following allowances:

Class I Driver - i.e. a driver who is qualified to drive and operate all brigade appliances including any or all aerial appliances - $4.80 per week

Class II Driver - i.e. a driver who is qualified to drive and operate all brigade appliances including pumpers and medium/heavy tankers - other than aerial appliances - $3.35 per week.

Class III Driver i.e. a driver who is qualified to drive all brigade vehicles not listed above - $1.80 per week.

The employer shall also be responsible for payment of the driver's licence fee.

Payments of the above allowances shall continue to be made during periods of annual leave, paid sick leave, or other absences approved by the employer, during which ordinary wages are paid.

The Fire Commissioner disagreed with Mr Devine. Mr Lowe, on his behalf, submitted that classification was a matter for the discretion of the Commissioner. This meant that a Station Officer's entitlement to driver classification allowance was dependent upon the classification assigned to him by the employer.

He explained that on promotion to Station Officer, an employee did not need to drive in an operational sense, the same types of equipment identified in Classes I and II of Clause 16. The fact that Senior Firefighters, on reclassification to Station Officer, became entitled to a Class III driver allowance was itself something of an anomaly, but one with which the Commission was able to live.

It was submitted by Mr Devine, and not refuted by Mr Lowe, that Station Officers are required to give instruction to firefighters in the use of station equipment. But this, Mr Lowe indicated, was part and parcel of a Station Officer's job.

On promotion to Station Officer rank, all officers of that class no longer drove engines to, or operated pumpers at fires. Instead they directed others to perform those tasks. Station Officers were in effect leading hands who directed firefighting operations on location. They did not physically operate the same equipment they once did as Firefighters or Senior Firefighters.

The award is, I believe, somewhat ambiguous. But it is deficient only to the extent that the preamble to the class of allowances does not clearly state that in order to qualify for an allowance an employee must be required to operate various types of equipment. The words "and classified as such" no doubt are included for that reason. Therefore, in order to qualify for an allowance an employee must be "classified" as meeting the criteria for either Classes III, II or I. But it could not be construed to mean that simply being licensed and qualified by examination to operate certain equipment automatically warrants an ongoing and immutable entitlement to allowances. If that was the intention, the award certainly does not say so.

However, I am reluctant to make any declaration before the parties have had an opportunity to consider the result of my finding in the matter. Among other things, I find that only those required to drive equipment are entitled to an allowance. This is consistent with the fact that Control Room Operators receive no driver classification allowance. A declaration would result in any of the following possibilities.

1. A Senior Firefighter Grade I classified Driver Class I, who is subsequently reclassified to Station Officer II with a Class III driving allowance rating, would suffer a $3 per week reduction in allowance, but a $35.20 per week increase in his substantive base rate. This would result in a net increase of $32.20 per week.

2. A Senior Firefighter Grade I classified Driver Class II, who is subsequently promoted to Station Officer II and classified Driver III, would receive an increase of $35.20, less $1.55, or a net increase of $33.65 per week.

3. A Senior Firefighter Grade I classified Driver Class III, who is subsequently reclassified Station Officer II and retains his Class III driving rating would enjoy the maximum increase of $35.20 per week.

It will be seen from the foregoing that a firefighter with the lowest qualified driver rating would, on promotion to Station Officer II, receive the highest money increase.

For that reason it may be that the parties would wish to further consider their position before requesting the Commission to make a formal declaration. Any declaration would confirm that as the award now stands it is open to the controlling authority to exercise his discretion and classify a Station Officer to a Driver Class I, II or III.

If this was not the intention of the parties when they agreed to the last award variation that resulted in revision of the rates and alteration to the format of Clause 16, this might be an opportunity to repair any drafting oversight.

I will defer making a declaration until advised further by the parties.

L A Koerbin
PRESIDENT