United Firefighters' Union of Australia v Metropolitan Fire Brigades Board [1997] FCA 1338

FEDERAL COURT OF AUSTRALIA

Industrial Law - application for penalty for breach of an Award - construction of word "district" in clause of the Award. Industrial Relations Act 1988, s 178 Metropolitan Fire Brigades Act 1958 (Vic) s 3, s 4, s 25 UNITED FIREFIGHTERS' UNION OF AUSTRALIA V METROPOLITAN FIRE BRIGADES BOARD No. VI 1197 of 1996 NORTHROP J MELBOURNE 2 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI NO. 1197 of 1996

BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA

Applicant

AND: METROPOLITAN FIRE BRIGADES BOARD

Respondent

COURT: northrop j

DATE OF ORDER: 2 december 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: The application 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 VI No. 1197 of 1996

BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA

Applicant

AND: METROPOLITAN FIRE BRIGADES BOARD

Respondent

COURT: NORTHROP J

place: melbourne

DATE: 2 december 1997

REASONS FOR JUDGMENT Shakespeare provides a clue to the solution of the question raised in this application. With reference to Romeo's family name, Juliet proclaims:- "What's in a name ? that which we call a rose/By any name would smell as sweet." Act II.ii.43. In this application, by adaptation, it can be said with reference to the name "district", "What's in a name ? that which we call a district/By any other name would remain 'a portion of territory marked off or defined for some special administration or official purpose' ". This meaning of the word "district" is taken from the Shorter Oxford English Dictionary. Examples are given in the Dictionary; "e.g. a police, postal or registration d. etc.". A further example can be added; "a fire district". The question raised in this application concerns the proper construction and application of the word "district" in a clause of an Award. The difference of opinion arose when the name of portions of territory marked off or defined for administrative or official purposes were varied and re-described as zones. The question is whether the terms of the clause of the award apply with respect to the new zones. The Metropolitan Fire Brigades Board ("the Board") is constituted a body corporate by s 6 of the Metropolitan Fire Brigades Act 1958 (Vic) ("the Act"). The essential function of the Board is described in s 25 of the Act as follows:- "25. The duty of taking superintending and enforcing all necessary steps for the prevention and extinguishment of fires and for the protection of life and property in case of fire, and the general control of all stations and of all fire brigades shall, subject to the provisions of this Act, so far as regards the metropolitan district and any vessel berthed adjacent to any land which by virtue of section 4(2) is part of the metropolitan district be vested in the Board." It is helpful to refer to the meanings given by the Act to some of the words and phrases contained in s 25. The definitions are contained in s 3. The word "brigade" is defined as including all fire brigades whether permanent or volunteer. The words "permanent fire brigade" are defined to mean any association formed for the purpose of extinguishing fire and consisting of persons whose whole time is devoted to duties connected with that object and who receive a fixed remuneration for their services. A "volunteer fire brigade" is defined to mean any association of persons formed for the same purpose but the carrying out of the purpose is not the sole or principal calling or the means of livelihood of the persons or a majority of them. The "metropolitan district" is defined to mean the metropolitan fire district constituted by or under the Act. Section 4(1) of the Act describes that portion of the territory of the State of Victoria marked off or defined for the special purpose of the Act as follows:- "4. (1) For the proper and efficient carrying out of the provisions of this Act there shall be a metropolitan fire district consisting of the municipal districts or parts thereof set forth in the Second Schedule to this Act." In this section, the word "district" is to be understood to have its normal meaning. For present purposes it is not necessary to refer to the many functions of the Board. The Board has the power to appoint officers and employees whether or not officers or members of the Metropolitan Fire Brigade. Under s 33A the Board, subject to an award, is to determine salaries and wages of officers and employees. The Act designates specific officers and specifies their powers and obligations. Reference need not be made to the many matters contained in that section of the Act under the heading "General Provisions". For many years, for administrative purposes the Board has sub-divided the metropolitan fire district into smaller areas. For present purposes, each of these sub-divided areas has been described by different words, sometimes a sector, sometimes a district and sometimes a zone. At all times, a number of stations, often referred to in common language as fire stations, were and are set up and maintained by the Board in each of these sub-divided areas. Officers of the Board, normally, are attached to a particular station. Because of rostering arrangements, officers may be required to serve at a station other than what has been called the "home station" of that officer or the station to which the officer (or employee) is currently rostered. From time to time an employee may be required to perform duties at a station other than the home station or the station to which the employee was currently rostered. The industrial awards regulating the conditions of employment between the Board and its employees contained a special clause headed "Expenses" containing provisions for the payment of expenses to employees in specified circumstances. This application arises out of cl 6 of the Victorian Firefighting Industry Employees Interim Award 1993 (Cwth), ("the Award"). This was a first Award in this area and for present purposes incorporated parts of the State award previously in operation. The Award was made by the Australian Industrial Relations Commission pursuant to the provisions of the Australian Industrial Relations Act 1988 (Cwth). The Award came into operation from the beginning of the first pay period commencing on or after 25 November 1993. The Award is expressed to be binding upon the United Firefighters Union of Australia ("the Union"), and the Board with respect to its employees employed in any of the classifications set out in the Award. Clause 25 of the Award is long and detailed. It is headed "25. EXPENSES". The issue concerns cl 25(c). However it is desirable to set out cl 25(a), (b) and (c) but using the words in operation at the relevant time:-