United Firefighters' Union of Australia v Metropolitan Fire Brigades Board [1998] FCA 1119 (20 July 1998)

Last Updated: 14 September 1998

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application for imposition of a penalty for breach of an award - meaning of the word "district" in the award

Industrial Relations Act 1988 , s 178

UNITED FIREFIGHTERS UNION OF AUSTRALIA V METROPOLITAN FIRE BRIGADES BOARD

VG 729 OF 1997

BLACK CJ, SUNDBERG & NORTH JJ

MELBOURNE

20 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 of 1997

BETWEEN:	UNITED FIREFIGHTERS UNION OF AUSTRALIA APPELLANT
AND:	METROPOLITAN FIRE BRIGADES BOARD RESPONDENT
JUDGES:	BLACK CJ, SUNDBERG & NORTH JJ
DATE OF ORDER:	20 JULY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 of 1997

BETWEEN:	UNITED FIREFIGHTERS UNION OF AUSTRALIA APPELLANT
AND:	METROPOLITAN FIRE BRIGADES BOARD RESPONDENT

JUDGE:	BLACK CJ, SUNDBERG & NORTH JJ
DATE:	20 JULY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

This is an appeal against a decision of Northrop J given on 2 December 1997. The proceeding concerns the proper construction and application of the word "district" in a clause of an award. The background and legislative context is set out in his Honour's judgment and need not be repeated. For present purposes it is sufficient to say that clause 25(c) of the Victorian Firefighters Industry Interim Award (1993) (the "Award") provides for an allowance for an employee detailed for duty to a fire station other than the fire station within the district in which the person usually worked.

The Award was operative from the first pay period commencing after 25 November 1993. A decision to make the Award was made by the Australian Industrial Relations Commission on 9 March 1994. The Award was the first federal award covering particular employees. It followed the form of a pre-existing state award. Prior to the making of the Award the respondent, Metropolitan Fire Brigades Board (the "MFB"), instituted a new organisational structure for its administration. The previous structure of five districts was abandoned and in its place a structure of four zones was implemented.

The construction issue has arisen in the context of an application by the appellant, United Firefighters Union of Australia (the "Union") under section 178 of the Industrial Relations Act 1988 , now the Workplace Relations Act 1996 , for the imposition of a penalty on the basis that the MFB acted in breach of clause 25(c) of the Award by failing to pay the allowance to Mr Lyon, an employee of the MFB, who was detailed to work on eight occasions at a station outside his pre-December 1993 district but within his post-December 1993 zone. The issue is of limited importance because the Australian Industrial Relations Commission varied the Award with effect from 14 March 1996 to replace the word "district" in clause 25(c) with the word "zone".

The Union contended before his Honour that the reference to "district" in the Award referred to the districts existing before the organisational change. His Honour rejected this construction. He held that the normal meaning of "district" is an area of land delineated for some administrative purpose, and there was no sufficient evidence to show that the word had anything but its normal meaning in the Award.

We agree with his Honour that the normal meaning of the word "district" is an area of land delineated for administrative purposes. A cogent reason for favouring this construction in clause 25 of the Award is that it allows employees of the MFB who commenced work after the new Award was made to ascertain their entitlement to the allowance by reference to the then current administrative structure. The alternative construction would enable such employees to ascertain their entitlement only by reference to an historical structure which applied possibly many years in the past.

We consider that the Union's argument gives too little weight to the notion that emerges from the text of clause 25 that the connection of an employee with a district has to be sufficiently close for it to be said that there can be a station "within his/her district". That language naturally suggests that at the time an entitlement to an allowance arises there is something that can sensibly be said to be the district of the employee. This concept does not sit easily with the notion implicit in the Union's argument that the district being referred to was an area with which the employee once had a connection when it existed or, if the employee is a new employee, would have had a connection if it still existed within the administrative framework of the MFB. Another problem with the interpretation that the Union would place upon clause 25 is it would deny effectiveness, for the purposes of clause 25, to even the slightest adjustment of district boundaries.

On appeal the Union relied, in substance, on three arguments. First, it contended that when the parties agreed to the terms of the Award, at the earliest on 24 November 1993, a clear distinction, known to the parties, was drawn between the terms "district" and "zone". When the parties agreed to the use of the word "district" they must, in the circumstances, have intended to refer to the five districts existing prior to the re-organisation. We do not accept this analysis. It could be argued that prior to 25 October 1993 the MFB in a number of internal memoranda contemplated the existence of both the zones and the districts at the one time for different administrative purposes. However, in a memorandum dated 25 October 1993 the MFB stated that it had "decided to remove all district boundaries and create an additional zone" from 29 October 1993. Although the new structure was not put in place until 13 December 1993 the intention of the MFB to maintain only one administrative structure was made clear before the parties agreed to the form of the Award. From 25 October 1993 the parties knew that the administrative structure was to consist of four units only. There is no reason in these circumstances to regard the parties as having intended the use of "district" to refer to the pre-existing structure rather than to the administrative units adopted from time to time.

Second, the Union contended that his Honour did not give sufficient weight to the industrial context or history in which the federal award was made. Previous awards had used different terms such as "home station", "home sector", "zone" and "district" to refer to the particular administrative divisions then being used. This history, it was said, gave "district" a particular meaning in the context of this Award. His Honour concluded that "[t]here was no sufficient evidence to suggest that the word 'district' had any meaning other than its normal meaning." We were taken to that same evidence and we agree with his Honour's conclusions.

Third, the Union contended that, by reason of the operation of clause 5 of the Award, the word "district" must have referred to the pre-December 1993 administrative divisions. Clause 5 provides as follows:

"Nothing in this award shall be deemed or construed to:

(a) Reduce the wages or allowances; or

(b) Alter unfavourably the terms and conditions of employment, applying to any employee covered by this Award immediately prior to the commencement of operation of any provisions of this Award."

In our view clause 5 does not assist in the interpretation of the word "district". If, as we think, the word refers to the administrative divisions in force for the time being then the Award does not have the effect of reducing the allowances paid to employees. On their proper construction both the State and the federal awards provided for an allowance payable when employees worked outside their then existing administrative area. That entitlement was not changed by the making of the federal award. Its application may have produced a different result by reason of a change to administrative divisions but that result came from a change made outside, and not by, the Award.

The Union points out that adjustment of district boundaries, whether large or small, would involve an alteration in the industrial conditions and that we should not favour a construction that would have that effect. The answer, however, lies in the clear language used in clause 25 and also in the capacity of the Union, and the employer for that matter, to apply for an award variation immediately upon any alteration to district boundaries.

In these circumstances the appeal should be dismissed. The order of the Court is that the appeal is dismissed.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of the Court.

Associate:

Dated: 20 July 1998

Counsel for the Applicant:	Mr H Borenstein appeared on behalf of the appellant
Solicitor for the Applicant:	Maurice Blackburn & Co
Counsel for the Respondent:	Mr L Kaufman appeared on behalf of the respondent
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	20 July 1998
Date of Judgment:	20 July 1998