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United Firefighters of Australia, Union of Employees, Queensland v State of Queensland (Queensland Fire and Emergency Services) QIRC 114
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
United Firefighters of Australia, Union of Employees, Queensland v State of Queensland (Queensland Fire and Emergency Services)  QIRC 114
United Firefighters of Australia, Union of Employees, Queensland
State of Queensland (Queensland Fire and Emergency Services)
Interpretation of Industrial Instrument
26 August 2019
On the Papers
INDUSTRIAL LAW – Interpretation of an Industrial Instrument – whether auxiliary firefighter is entitled to both a minimum payment for a call – in on a public holiday and a minimum payment for any further call – ins thereafter – whether clause dealing with minimum payment on a public holiday supersedes minimum two-hour payment for further call-ins on the same day.
Auxiliary Firefighters' Award – State 2016
Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union  FCA 813
City of Wanneroo v Holmes (1989) 30 IR 362
Kucks v CSR Ltd (1996) 66 IR 182
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355
Queensland Nurses' Union of Employees v Longreach and District Aged People Inc. t/a Pioneers Hostel/Nursing Home (No. 2) (2002) 170 QGIG 212
The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited  FWCFB 7447
Victorian Employers' Chamber of Commence and Industry  FWAFB 6913
Reasons for Decision
- The United Firefighters of Australia, Union of Employees ("the applicant") and the State of Queensland (Queensland Fire and Emergency Services) ("the respondent") have requested the assistance of the Commission in respect of the interpretation and application of cls 22 and 26 of the Auxiliary Firefighters' Award – State 2016 ("the Award").
- The Award provides, at cl 22, that an auxiliary firefighter called in for duty shall be paid the appropriate rate for time worked for each call-in with a minimum of two hours' payment. Separately, cl 26 provides that an auxiliary firefighter who is required to work on a public holiday will be paid at the rate of double time and one-half for any hours worked, with a minimum payment of four hours' work for the day.
- In dispute is the proposed method by which an auxiliary firefighter's minimum payment is calculated for 'call-in' work performed on a public holiday beyond the initial four hour minimum. That is, whether multiple call-ins on a public holiday each attract a minimum of two hours' pay by operation of cl 22, or whether, having received the minimum of four hours' pay "for the day" for which cl 26 provides, the auxiliary firefighter is only entitled to be paid, when working beyond four hours, for the time actually worked.
- The applicant maintains that when an auxiliary firefighter is called in to perform work on a public holiday, they are entitled to be paid a minimum payment "for each call in" (cl 22) and a minimum payment "for the day" (cl 26). That is, the two clauses are not inconsistent and operate alongside each other without tension.
- On the other hand, the respondent argues cl 26 (which deals with a minimum payment for work performed on a public holiday) supersedes cl 22 which provides for a minimum payment of two hours for auxiliary firefighters who are called in for duty at any time.
- Auxiliary firefighters are casual employees who respond to emergency incidents as required. The majority of Auxiliary fire stations are located in smaller and rural communities where a 24-hour fire station may not exist. For many, this work constitutes a secondary form of employment, alongside their principal occupation.
- Before the commencement of the Award in January 2016, the wages and employment conditions of auxiliary firefights were not underpinned by an industrial instrument but rather derived from a 'Standing Order' authorised by the respondent.
- In the aftermath of the Award's introduction, there were, as expected, teething issues in respect of the interpretation of key provisions. Early in 2016, discussions between the parties resolved upon an agreed interpretation concerning the interaction between cls 22 and 26.
- This agreement, which was published and distributed by the respondent in its "Notification for All Auxiliary Firefighters" on 18 January 2016, stated that "any further call-in beyond that four hours reverts to the minimum two-hour payment".
- In February 2018, the respondent reconsidered the heretofore settled interpretation and, determining it to be "incorrect", revised its position. It is against this industrial backdrop that the parties now enjoin the Commission to determine the proper interpretation and application of cls 22 and 26 of the Award.
- For the reasons which follow, the submissions advanced by the applicant must be accepted.
- Clauses 22 and 26 are central to the determination of this application (my emphasis):
PART 5 – Hours of Work and Related Matters
(a) An auxiliary firefighter called in for duty shall be paid the appropriate rate for time worked for each call-in with a minimum of 2 hours' payment. However, any subsequent call-in which commences within 2 hours of the commencement of a previous call-in shall be deemed to be included in the previous call-in.
(b) Claims for payment are to be made to the nearest 15 minute interval, with a minimum payment of 2 hours for each event.
(c) Paid time for attendance at emergency incidents shall commence from the time the auxiliary firefighter receives a call/page and conclude upon completion of post-incident responsibilities.
(d) Auxiliary firefighters who respond to the station and who are not required to initially turn out shall remain on duty until whichever of the following occurs first:
(i) a "stop" call is received;
(ii) the OIC directs them to "stand down" and await further advice; or
(iii) one hour from the initial call/page has passed.
(e) Remuneration claims for individual tasks undertaken in connection with authorised projects or administrative responsibilities, e.g. phone calls, are to be accumulated on the basis of actual hours worked, to the nearest 15 minute interval, during the respective pay period and claimed as a lump sum.
PART 6 – Leave of Absence and Public Holidays
26. Public holidays
(a) Public holidays are provided for in Division 10 of the QES. Clauses 26(b) and (c) supplement the QES provisions.
(b) An auxiliary firefighter who is required to work on a public holiday will be paid at the rate of double time and one-half for any hours worked, with a minimum payment of 4 hours' work for the day.
(c) Where an alternative day is declared for the public holiday, the penalty payment and minimum payment prescribed in clause 26(b) shall only be payable for work performed on the day normally attributable to the public holiday (e.g. 1 January) and not another substituted day in lieu.
Submissions of the Applicant
- The applicant contends that the natural and ordinary meaning of the words in cl 26 support its construction. The Award is said to provide "two distinct entitlements, both of which apply" to auxiliary firefighters; cl 26 simply confers an additional and unrelated benefit for work performed on public holidays. Rejected, therefore, is the proposition that cl 22 is subject to cl 26 as "there does not appear to be any inconsistency that would necessitate the superseding of one clause by the other".
- Set forth were the following observations:
- (i)Cl 22(a) specifies that an auxiliary firefighter must be paid at the "appropriate rate for time worked for each call-in with a minimum of two hours payment" (except where subsequent call-ins occur within the same two-hour window);
- (ii)by specifying that the minimum payment is paid according to the "appropriate rate", it is implied that the minimum payment could be paid at night rates, weekend rates or public holiday rates, depending on when the call-in occurs;
- (iii)cl 22(b) builds upon subclause (2) by specifying inter alia that there must be a "minimum payment of 2 hours for each event";
- (iv)the wording "for each call-in" and "for each event" is significant in indicating that the entitlement to minimum payment is tied to attendance at a call-in (i.e. event);
- (v)cl 26(b) applies to work performed on public holidays. It specifies the penalty rate payable for the time worked and introduces an entitlement to a "minimum payment of four hours' work for the day"; and
- (vi)the entitlement to a four-hour minimum payment is expressly tied to the day of the public holiday, not to any specific "call-in" or "event".
- The applicant, highlighting the practical consequences of the respondent's interpretation, submitted that it could result in an auxiliary firefighter being called in on 12 separate occasions for only 15 minutes each across a public holiday, only to be paid for four hours. Such an outcome, it argues, would in many respects negate the objective the introduction of minimum engagements periods sought to achieve.
Submissions of the Respondent
- The respondent submits that although cls 22 and 26 of the Award operate, and are to be read, independently of one another, cl 26 provides conditions which are specific to public holidays which means that cl 26 supersedes the conditions provided in cl 22. Its stance in respect of the operation of cl 26 is that it provides a minimum engagement period for public holidays of four hours for the day, until the time worked exceeds four hours, whereafter the auxiliary firefighter would be paid only for the time actually worked.
- By way of example, if an auxiliary firefighter receives a call-in on a public holiday for a duration of four hours and then, several hours later, receives another call-in which lasts only 30 minutes, the latter period of work would not attract the minimum payment of two hours' pay for which cl 22 provides but, instead, only 30 minutes at the public holiday rate.
- Submissions were made that:
- (i)as cl 26 pertains specifically to public holidays whereas cl 22 pertains to call-ins more generally, the former 'buys out' or 'supersedes' the latter;
- (ii)it cannot categorically be stated that there is financial detriment or disadvantage to auxiliary firefighters owing to the present application of its construction, in circumstances where they would be paid by their primary employer on a public holiday in any case; and
- (iii)a recent analysis of data indicates that, to the extent there are multiple call-ins on public holidays, on most occasions they are limited to two or three and for a minimum of one hour.
- The respondent raised several points in relation to the history of this matter, the financial costs or otherwise which might be sustained consequent upon the applicant's construction, as well as the statistical improbability of multiple call-ins occurring across a public holiday.
- The applicant responded by saying that this information, while "irrelevant", might be found by the Commission to be "extrinsic material" which, under certain circumstances, may be permissibly considered. For that reason, as a contingency, the applicant proceeded to respond to the points raised by the respondent.
- As a rule of statutory construction, extrinsic material may be considered to discover whether ambiguity exists, or to aid the interpretation of language which is ambiguous or susceptible to more than one meaning.
- In my view, the information provided by the respondent is more aptly described not as extrinsic, but simply contextual or historical. For that reason, it is not necessary to commence a discussion as to whether or not it should be considered as extrinsic material.
- The Commission's function here is to interpret an industrial instrument. The task remains, in the words of Madgwick J:
... one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
- In Amcor Ltd v Construction, Forestry, Mining and Energy Union, Kirby J, construing the redundancy provisions of an agreement, responded to concerns that unfairness would attend the construction proposed by a union:
Much play was made in argument in this Court by Amcor concerning the suggested unfairness of the industrial outcome for which the Union argued...
... it is undesirable to adopt a purely result-orientated approach to the interpretation of such industrial agreements. Ultimately, a court's duty under the Constitution is to give effect to the meaning of each such document as expressed in its words.
- The Commission's duty, likewise, is not to contemplate in a speculative fashion the potential result of one construction vis a vis another, but to give effect to the language of the Award understood in light of its industrial context and purpose. In so doing:
... regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken'.
- One must be mindful, however, that the words of the Award and the context in which they appear must not be interpreted in a vacuum divorced from industrial realities.
- It is helpful, then, to preface my consideration of the relevant clauses within the Award with an examination of the somewhat unique industrial reality in which auxiliary firefighters work and the measures that accommodate it.
- As mentioned earlier, auxiliary firefighters are casual employees whose engagement typically constitutes a secondary form of employment.
- In the event of an emergency incident, a 'call out' will issue. This could occur at any time. All available auxiliary firefighters might receive a 'call out' yet, for operational reasons, it may so happen that some are surplus to requirements. One might be in the process of responding to a 'call out' – commuting, organising care for children, or extricating him or herself from their primary employment – only to be advised that they are needed briefly or not at all.
- Circumstances of this nature prompted the need for minimum periods of engagement in the first place. The Full Bench of Fair Work Australia (as it was then known) considered their utility:
[They] have been a common feature of State and Federal awards for a very long period. The rationale for minimum periods of engagement is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work, it has long been recognised that employees, especially casual employees, can be significantly prejudiced if a shift is truncated by the employer on short notice (as would otherwise be lawful in a typical casual engagement) or the employee can be pressured into acceptable unviable short shifts in order to retain access to longer shifts.
- In part, the minimum 2-hour payment set out in cl 22 duly accounts for, and ameliorates, the potential expense and inconvenience occasioned by a call-in. The auxiliary firefighter, for "each call-in" or "each event", is entitled to a minimum of two hours' pay.
- Under the Award, once an auxiliary firefighter has responded to a call-in, they are to remain on duty if they are not initially required to 'turn out' until a 'stop' call is received, there is a direction to stand down, or one hour from the initial call-in has passed. I concur with the applicant in holding that the respondent's construction of cls 22 and 26 tends to undermine the purpose for which minimum periods of engagement were introduced; namely, to compensate the employee for the effort, expense or disruption provoked by receiving and responding to a call-in.
- Howsoever unlikely it may be that multiple call-ins occur on public holidays, it is the case that the respondent's interpretation of the Award could potentially deprive auxiliary firefighters of a minimum engagement period in the event they receive multiple call-ins, each more than two hours apart, on a public holiday. The compensation – a minimum of two hours' pay – logically attaches not to a day or the nature of the payment on that day, but to each "call-in" or "event", for each call-in has the potential, of itself, to occasion that self-same effort, expense or disruption.
- An auxiliary firefighter called in for duty shall be paid the "appropriate rate for time worked" for each call-in with a minimum of two hours' pay. Which rate is "appropriate" depends on the circumstances. Higher rates attach to work performed on weekends, "late work", overtime and public holidays. This necessarily implies that, on a public holiday, one is to be paid the minimum of two hours' pay at the appropriate rate, which is double time and one half. The minimum period for which payment is made and the rate at which it is to be paid are discrete, yet harmonious, entitlements.
- Indeed, when one considers the totality of entitlements conferred under the Award, it is apparent that they are largely separate and distinct from each other and oftentimes overlap. In my view, an auxiliary firefighter working on a public holiday in the scenario which forms the basis of this application is capable of receiving a tripartite entitlement: the minimum of four hours' pay "for the day", at a rate of double time and one half, and the minimum of two hours' pay for "each call-in" or "event" thereafter for which cl 22 provides.
- Clause 22 is situated within pt 5 of the Award, which also deals with provisions of general application such as hours of work, penalty rates, meal breaks and rest pauses. The respondent's construction means that, on a public holiday, cl 22 becomes an awkward superfluity alongside other clauses which curiously continue to operate.
- The respondent's case, at its highest, rests upon the contention that cl 26, because particular to public holidays, therefore 'buys out' or overrides the provisions of cl 22 which are of more general application. While, as a rule, in the event of a conflict, the specific provision will usually prevail over the general provision, in this case no such conflict exists.
- That is, there is no warrant – textual or contextual, express or implied – to conclude that cls 22 and 26 cannot operate harmoniously or that one of these entitlements must override or subordinate the other. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.
- Had the drafter(s) and parties to the Award intended cl 22 to be subject to cl 26, or for the operation of cl 22 to be excluded on public holidays, such a result could have been easily achieved by employing the same conditional, qualificatory or exclusionary expressions found elsewhere in the Award.
- Instead, it appears the Award discriminates between, on the one hand, the minimum call-in period "for each call-in" or "for each event" for which cl 22 provides, and, on the other, a minimum entitlement of a different sort altogether, especial to public holidays and, in my view, separate from the occurrence of call-ins or events: four hours' minimum "for the day". I do not consider this terminological shift to be a coincidence. Clause 26 does not override the minimum engagement period in cl 22 when call-in work is performed on public holidays.
- I favour the applicant's construction. It gives effect to the text of the Award in light of the industrial context in which auxiliary firefighters work. On any reading of the Award, moreover, the challenges with which the introduction of minimum payments were intended to deal are better addressed when cls 22 and 26 operate harmoniously.
- Having regard to the reasons above, the practical application of cls 22 and 26 when an auxiliary firefighter is called in for duty on a public holiday is as follows:
- an employee is entitled to a minimum of four hours pay at the public holiday rate. This payment remunerates the employee for four hours from the commencement of duty. Any subsequent work performed within that four-hour window has already been paid and cannot be claimed again; and
- any further and separate call-outs beyond the four hours reverts to the minimum two-hour payment.
- I order accordingly.
 The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited  FWCFB 7447, 17 ; Queensland Nurses' Union of Employees v Longreach and District Aged People Inc. t/a Pioneers Hostel/Nursing Home (No. 2) (2002) 170 QGIG 212, 213 (Hall P).
 (1996) 66 IR 182, 184 (my emphasis).
 (2005) 222 CLR 241, 263 -.
 Ibid 246 , 249  (Gleeson CJ and McHugh J).
 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union  FCA 813, 17  (citations omitted) (French J).
 City of Wanneroo v Holmes (1989) 30 IR 362, 378-379 (French J).
 Victorian Employers' Chamber of Commence and Industry  FWAFB 6913, 5  (Lawler VP, Kaufman SDP, Bissett C).
 Clause 22(a).
 Clause 22(d).
 Clause 18.
 Clause 19.
 Clause 23.
 Clause 26.
 Clause 26(b).
 Provided any subsequent call-in does not commence within two hours of the commencement of the previous call-in (cl 22(a)).
 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382  (McHugh, Gummow, Kirby and Hayne JJ).
 See, for example, cls 4, 10.2(d), 14(a), 16(a), 17(c), 18(a), 19(a), 20, and 30(d).
- Published Case Name:
United Firefighters of Australia, Union of Employees, Queensland v State of Queensland (Queensland Fire and Emergency Services)
- Shortened Case Name:
United Firefighters of Australia, Union of Employees, Queensland v State of Queensland (Queensland Fire and Emergency Services)
 QIRC 114
26 Aug 2019