NEW ZEALAND PROFESSIONAL FIREFIGHTERS UNION v THE NEW ZEALAND FIRE SERVICE COMMISSON NZEmpC

 
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[2011] NZEmpC 149

IN THE EMPLOYMENT COURT CHRISTCHURCH

CRC 50/10

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

BETWEEN
New Zealand Professional Firefighters Union
First Plaintiff

And

Alan Cahill
Second Plaintiff

And

Crawford Morris
Third Plaintiff
and
The New Zealand Fire Service Commisson
Defendant
Appearances:

Simon Meikle, counsel for the plaintiffs

Geoff Davenport, counsel for the defendant

Challenge to determination of Employment Relations Authority regarding interpretation of clause in collective agreement — clause provided for on-call rosters for fire safety officers — whether Fire Service entitled to amend roster for operational reasons without agreement of fire safety officers — whether rostered on call hours constituted work.

The issues were: whether the Fire Service was entitled to amend the roster without the agreement of the fire safety officers; and whether rostered on-call hours constituted work.

Held: The court was required to apply a principled approach to the interpretation of employment agreements and any disputes as to meaning were to be determined objectively. The starting point for any contractual interpretation exercise was the natural and ordinary meaning of the language used by the parties. If the language used was not on its face ambiguous, then the court would not readily accept that there was any error in the contractual text. If the language used was, on its face, ambiguous or flouted business commonsense or raised issues of estoppel, then the court would go beyond the contract so as to ascertain the meaning ( Vector Gas Ltd v Bay of Plenty Energy Ltd).

Clauses 4.3.2 and cl 4.3.3 of the collective agreement specifically spelt out the requirement for the employees' agreement. It would have been an easy matter to include such a requirement in cl 4.3.4 had that been the intention of the parties. There was no reference to any such requirement. There was no logical reason why different provisions might not apply to call out work compared to the provisions applying to regular work. On a plain and literal interpretation there was no ambiguity in cl 4.3.4. The agreement of the relevant employees was not a prerequisite to varying an availability on-call roster.

Having reached a preliminary view that the language used was plain and unambiguous, the court would not readily accept any suggestion that there was, nevertheless, an error in the interpretation. However it was still necessary to carry out the contextual cross-check referred to in Vector Gas Ltd. The meaning arrived at did not defy business commonsense. An interpretation which would effectively allow one fire safety officer to object to any changes to a roster in a safety critical area could not accord with commercial purpose.

Rostered on call hours did not constitute work in the way sleepovers did. In Idea Services Ltd v Dickson it was said that the sleepover scenario was readily distinguishable from where a person was at home or in the community on call, and who usually had no tasks to perform or responsibilities to discharge unless or until they were called. Accordingly, s 11 B (2) Minimum Wage Act 1983 (the maximum number of hours worked by any worker may be greater than 40 if the parties agree) did not apply. Moreover the parties had expressly agreed to work in excess of 40 hours per week via an availability roster, and if a fire safety officer was called out on a job, he received compensation in the form of either time and a half, or time in lieu.

Before amending a roster, the Fire Service had an obligation to consult. However, a requirement to consult did not mean or imply that an agreement had to be reached. As the meaning of cl 4.3.4 of the collective agreement was clear and unambiguous, the Fire Service was entitled to amend the roster for operational reasons.

Claim dismissed.

JUDGMENT OF JUDGE A D Ford

Introduction
1

The parties are in dispute over the interpretation of a particular clause in the New Zealand Professional Firefighters' Union Collective Agreement for Uniformed and Communications Centre Employees 2009 — 2010 (the collective agreement). The clause provides for an on-call roster in relation to a category of employee in the Fire Service known as Fire Risk Management Officers, sometimes referred to as FireSafety Officers. For convenience, I shall refer to them in this judgment as, “Fire Safety Officers”. The short point at issue is whether the clause in question entitles the defendant (the Fire Service) to make changes to the on-call roster without first securing the agreement of the employees concerned.

2

The plaintiffs seek a declaration that the Fire Service cannot unilaterally make changes to the on-call roster. For its part, the Fire Service claims in its statement of defence that the clause in question provides it with the entitlement to place Fire Safety Officers on an on-call roster and change that roster from time to time for operational reasons.

3

In a determination 1 dated 10 December 2010, the Employment Relations Authority (the Authority) found in favour of the Fire Service concluding:

[37] It follows from the foregoing discussion that I am satisfied that the Fire Service has the right to place Fire Safety Officers on an on-call roster and that the Fire Service can alter such a roster from time to time in accordance with the operational requirements of the Fire Service.

In this proceeding, the plaintiffs challenge the whole of the Authority's determination.

Background
4

At the time of the Authority hearing, there were eight fire regions in New Zealand but that number has subsequently been reduced to five. The Court was told in relation to the current five regions, that Region 1 covers an area from the far north to just south of Auckland; Region 2 covers the area from Region 1 to the southern end of Lake Taupo; Region 3 covers the remainder of the North Island, including Wellington; Region 4 covers the South Island as far south as the Waitaki River and Region 5 covers the area south of the Waitaki River including the whole of Otago, Southland and Stewart Island. This case is concerned with Region 5 which, for convenience, I will refer to as the Southern Region. The evidence was that the Southern Region has the same coverage at the present time as it did when there were

eight fire regions in New Zealand. Under the eight fire region structure, the Southern Region was geographically the largest region in the country.
5

The function of Fire Safety Officers was canvassed in evidence. Essentially, they are responsible for investigating and determining the cause of fires. There are occasions, for example fires involving fatalities, when Fire Safety Officers are automatically required to attend the scene and carry out an investigation. There will be other occasions when the officer in charge of the firefighting crew who responds to a fire may require assistance in determining the cause of the fire and in that event a Fire Safety Officer will be called to the scene to investigate. Typically, the firefighting crew will await the arrival of the Fire Safety Officer (or arrange a scene guard) before they are able to leave the scene of any fire that needs to be investigated by a Fire Safety Officer.

6

At the present time, there are four Fire Safety Officers in the Southern Region. Two are based in Otago and two in Southland. Their normal hours of work are between 8.00 am and 5.00 pm Monday to Friday but they also operate under a “one week on, one week off” on-call roster in respect of all hours outside their normal office working hours. The Court was told that the roster runs on the basis that in any one week there will be two Fire Safety Officers on call, one of whom is based in Southland and the other in Otago and they will each respond to callouts in their respective districts. In other words, the on-call officer from Southland will respond to callouts within the Southland area and the Otago based officer will respond to callouts in the Otago area.

7

The Court was told that one important advantage of such a roster is that it reduces the travel time involved in responding to callouts. There was evidence, for example, that if a Southland Fire Safety Officer based in Invercargill had to travel to Oamaru in Otago to investigate a fire, then the travelling time involved in the 420 kilometre journey would be in excess of four hours whereas if an Otago officer, based in Dunedin, had to make the same journey the travelling time involved would be considerably reduced. There was no dispute between the parties on these issues. Likewise, there was no dispute about the significance of saving travel time. The evidence highlighted several important factors relevant to the need to reduce traveltime for Fire Safety Officers engaged in investigation work. The first relates to the issue of volunteers.

8

The evidence was that there are only two paid brigades in the Southern Region, namely at Dunedin and Invercargill. Other fire stations at places like Queenstown, Gore, Te Anau, Manapouri and Oamaru are all manned by volunteer firefighters. Nationally, 80 per cent of the Fire Service workforce is made up of volunteers but in the Southern Region, where there are approximately 70 volunteers, the percentage is in the order of 90 per cent. It is obviously very much in the interests of the Fire Service, therefore, to maintain the goodwill of its voluntary workforce and for that reason the Fire Service aims to reduce the amount of time...

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