Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary in respect of Fire and Rescue NSW (Busby Temporary Relocation) (No 2) [2023] NSWIRComm 1070 Hearing dates: 21 and 22 June 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I recommend that FRNSW pay to the Busby Firefighters the Station Redevelopment Allowance at the "moderate" level, backdated to 14 December 2022, for as long as the recline building and Liverpool station building remain in their current condition. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – firefighters temporarily located pending renovation of their base station – whether firefighters are entitled to allowance for reduction in amenity as a result of the relocation and, if so, in what quantum – whether as a consequence of the relocation firefighters have an entitlement under the award to a kilometre allowance or travelling compensation – whether firefighters should otherwise be entitled to travel-related compensation Legislation Cited: Industrial Relations Act 1996 ss 8, 130, 146C, 175 Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 cll 6, 6A Cases Cited: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069 New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 Texts Cited: Macquarie Online Dictionary Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Industrial Relations Secretary (Respondent) Representation: Counsel: L Saunders (Notifier) I Latham (Respondent) Solicitors: Hall Payne (Notifier) File Number(s): 2022/00313134 Publication restriction: No DECISION 1. These proceedings concern an industrial dispute between the Fire Brigade Employees' Union of New South Wales ("FBEU") and the Industrial Relations Secretary in respect of Fire and Rescue NSW ("FRNSW") arising from the temporary relocation of firefighters from the Busby fire station to the Liverpool fire station, while the former undergoes extensive redevelopment. At the heart of the dispute is the compensation that the affected firefighters should receive as a result of any reduction in amenity they will experience as a result of the relocation, and whether they are or should be entitled to travel-related compensation during the relocation. Background 1. The rosters for firefighters attached to Busby station ("Busby Firefighters") require them to work a 24 hour shift, have 24 hours off, work another 24 hour shift and then have five days off. Other than when they are attending an incident, the firefighters are required to be at the station. They eat, shower and sleep at the station. On any given shift, there is a station officer and three firefighters rostered for duty. 2. In December 2021, FRNSW informed the Busby Firefighters that the Busby station was to undergo redevelopment; that for the duration of the redevelopment they would be relocated to the Liverpool fire station; and, that work would be done at the Liverpool station to accommodate them, including the installation of temporary sleeping quarters. 3. I digress to observe that while the Busby Firefighters were intended to be co-located with the firefighters attached to Liverpool station ("Liverpool Firefighters"), the operations of the stations were not intended to merge into one. Rather, they were expected (and continue) to operate as separate "stations", albeit from the same address. 4. This can lead to some confusion in the language adopted in the evidence. For example, "Busby station" might be used to refer either to the Busby premises or to the operational unit (comprising the Busby Firefighters). I have attempted in the language that I have adopted to make the distinction clear. 5. FRNSW has a "standing order" dealing with station redevelopments, which was promulgated on 26 November 2014 as part of Commissioner's Orders 2014/24 ("Standing Order"). It relevantly provides as follows: "Station redevelopments The following arrangements shall apply when redevelopment work is carried out at a station staffed by Permanent firefighters. … 2 Temporary Relocation Where redevelopment work results in the temporary relocation of the station within the station's area, then the temporary location will be considered the station's ordinary location for all purposes (e.g. relieving). Where temporary relocation within the station's area is not practicable then the status of the station's temporary location (ordinary or not) will be determined on a case by case basis. 3 Station Redevelopment Allowance Where redevelopment work results in on-duty Permanent firefighters experiencing a noticeable reduction (as an indicative measure, more than approximately 10%) in their access to and/or the standard of amenities (at their home station or at an alternate station/location), Permanent firefighters will be paid a 'Station Redevelopment Allowance' for each shift worked at the affected station/location according to the degree of disturbance, as follows: Low (11 - 30%) reduction in amenity = $8.00 per shift Moderate (31 - 70%) reduction in amenity = $16.00 per shift Significant (71% or more) reduction in amenity = $24.00 per shift … 4 General provisions … b. The Station Redevelopment Allowance shall vary in line with, and from the same operative dates as, the rate of pay of the Qualified Firefighter rank." 1. In early September 2022, temporary sleeping quarters were installed at the Liverpool station in anticipation of being used by the Busby Firefighters, referred to by the parties as "reclines". Other changes were made to the Liverpool station premises themselves. 2. Several of the Busby Firefighters and the FBEU raised concerns with FRNSW regarding the reclines. Claims were also made for the payment of certain allowances to the Busby Firefighters and the Liverpool Firefighters, including the Station Redevelopment Allowance pursuant to the Standing Order. The parties were unable to resolve their differences. 3. On 20 October 2022 the FBEU commenced these proceedings by notifying the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The dispute was said to encompass both the adequacy (structural and otherwise) of the recline building; whether the Busby Firefighters and the Liverpool Firefighters were entitled to the Station Redevelopment Allowance and, if so, in what amount; and whether the Busby Firefighters were entitled to receive travel-related compensation as a result of the relocation under the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2022 ("Award"). 4. On 25 October 2022 FRNSW agreed that the Busby Firefighters would be paid the Station Redevelopment Allowance at the "moderate" level from 18 October 2022 until the date of relocation. In addition, FRNSW made a number of changes to the Liverpool premises, including to the recline building, as a result of the concerns raised by the FBEU and its members. 5. On 17 November 2022 the Busby Firefighters relocated to the Liverpool premises. 6. On 4 December 2022 Credwell Consulting Pty Ltd provided the FBEU with a report, dated the same day, that the union had requested. The report was signed by James Deters, a building surveyor and director of the company. The report stated that in a number of respects the recline building and alterations that had been made to the Liverpool premises to accommodate the Busby Firefighters were non-compliant with the Building Code of Australia ("Building Code"). 7. On 6 December 2022 it was determined that the Busby Firefighters would not use the reclines due to the matters raised in Mr Deters' report. (There was some controversy as to who made this determination, a matter to which I return below.) Instead, they made makeshift arrangements to sleep in the watch room, the kitchen and the training room of the station building. The station officer was to sleep in the station officer's office. 8. Also on 6 December 2022 the FBEU wrote to FRNSW seeking, amongst other things, that the Busby Firefighters be paid the Station Redevelopment Allowance at the "moderate" level from 18 October 2022 until 3 December 2022, and at the "high" level (which I take to mean the "significant" level in the Standing Order) from 4 December 2022 "until a mutually agreeable longer-term solution has been agreed upon between the parties and has been implemented". The letter also sought that the Liverpool Firefighters be paid the Station Redevelopment Allowance at the "moderate" level from the day of the letter. 9. In an email sent on 13 December 2022, FRNSW informed the FBEU that it considered that the issues that had been raised by the FBEU regarding the Liverpool premises had been resolved; that it did not accept that the matters raised by Mr Deters introduced any new risks, noting that a "majority of the issues raised are based on a different opinion of the building classification for the temporary structures and are therefore not relevant"; that from 14 December 2022 the Station Redevelopment Allowance being paid to the Busby Firefighters would be reduced from the "moderate" level to the "low" level; and, the Liverpool Firefighters would receive no payment of the Station Redevelopment Allowance. 10. The arrangements described at [13] above have been maintained. The Busby Firefighters continue to receive the Station Redevelopment Allowance at the "low" level. No such allowance is being or has ever been paid to the Liverpool Firefighters. The relief sought by the FBEU 1. The relief sought by the FBEU is contained in a document titled "Relief sought by the Notifier" filed by the FBEU on 21 December 2022. That document is in the following terms: "Final relief 1. An award requiring the Respondent to: a. pay firefighters assigned to Busby fire station, for each shift worked at Liverpool fire station from 18 October 2022 until the completion of the Busby fire station redevelopment, the 'Kilometer Allowance' for the return distance between Busby fire station and Liverpool fire station, pursuant to clause 6.6.2 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2022 (the Award) 2. Alternatively, a: a. direction to the above effect; or in further the alternative b. recommendation to the above effect, 3. In the further alternative an award requiring the Respondent to: a. pay firefighters assigned to Busby fire station, for each shift worked at Liverpool fire station from 18 October 2022 until the completion of the Busby fire station redevelopment, the 'Official Business rate' for the return distance between Busby fire station and Liverpool fire station pursuant to clause 26.6.5.4 of the Award. 4. Alternatively, a: a. direction to the above effect; or in further the alternative b. recommendation to the above effect. 5. An award requiring the Respondent to: a. pay firefighters assigned to Busby fire station, for each shift worked at Liverpool fire station from 18 October 2022 until 6 December 2022, the 'Moderate' reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, b. pay firefighters assigned to Busby fire station, for each shift worked at Liverpool fire station from 6 December 2022 until the date the sleeping quarters attached to Liverpool fire station are compliant with the Building Code of Australia / National Construction Code (Code), the 'Significant' reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, c. pay firefighters assigned to Busby fire station, for each shift worked at Liverpool fire station from the date the sleeping quarters are Code compliant until the Busby fire station redevelopment is complete, the 'Moderate' reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, 6. Alternatively, a: a. direction to the above effect; or in further the alternative b. Recommendation to the above effect, 7. An award requiring the Respondent to: a. pay firefighters assigned to Liverpool fire station, for each shift worked at Liverpool fire station from 17 November 2022 until 6 December 2022, the 'Low' reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, b. pay firefighters assigned to Liverpool fire station, for each shift worked at Liverpool fire station from 6 December 2022 until the date Busby fire firefighters no longer occupy sleeping quarters at Liverpool fire station, the 'Moderate' reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, c. pay firefighters assigned to Liverpool fire station, for each shift worked at Liverpool fire station from the date Busby fire firefighters no longer occupy sleeping quarters at Liverpool fire station until the completion of the Busby fire station redevelopment, the 'Low reduction in amenity Station Redevelopment Allowance pursuant to Standing Order 2014/24, 8. Alternatively, a: a. direction to the above effect; or in further the alternative b. recommendation to the above effect," (Reproduced verbatim) The questions for determination 1. There is considerable controversy between the parties as to whether the Busby Firefighters or Liverpool Firefighters are, or should be, entitled to the allowances sought on their behalf. In addition, FRNSW submitted that the Commission either could not, or as a matter of discretion would not, grant the relief in the form sought by the FBEU. 2. This second area of controversy gives rise to potentially significant questions regarding the Commission's jurisdiction. In particular, whether s 146C of the Act and cll 6 and 6A of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 have any bearing on the Commission's powers to make the award sought by the FBEU, and whether the decision of the Full Bench in Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069 was correctly decided and ought to be followed. 3. For present purposes, it is not necessary to explore these matter. During the hearing it was agreed that I would determine on a preliminary basis the question as to whether the firefighters are, or ought to be, entitled to the allowances sought. If I were to find in favour of the FBEU, in whole or in part, and considered that the Commission ought to intervene, I would do no more than make a recommendation, coupled with a direction that, should the recommendation be accepted, the parties confer with a view to implementing it. In the event that any recommendation were not accepted, or the parties were unable to agree as to how it should be implemented, the matter would be listed for directions to make arrangements for the parties to be heard on the question as to whether, and in what form, the Commission should grant relief. 4. On that basis, the immediate questions for determination are these: 1. Has the FBEU demonstrated that the Busby Firefighters have suffered a reduction in amenity so as to warrant payment of the Station Redevelopment Allowance and, if so, at what level? 2. Has the FBEU demonstrated that the Liverpool Firefighters have suffered a reduction in amenity so as to warrant payment of the Station Redevelopment Allowance and, if so, at what level? 3. Do the Busby Firefighters have an entitlement to either the kilometre allowance or travelling compensation under the Award, while they are relocated to the Liverpool fire station? 4. If not, should the Busby Firefighters be entitled to an allowance providing for travel-related compensation, and if so, on what terms and in what amount? Station Redevelopment Allowance General observations 1. There are three preliminary observations to make about the Standing Order. First, the Station Relocation Allowance only becomes payable in the event of a "reduction in amenity". This requires a comparison between the conditions enjoyed by the firefighters before the relocation and those which they have enjoyed since. 2. To a significant degree, FRNSW's evidence and submissions did not address that comparison. Rather, FRNSW sought to challenge the FBEU's evidence either on the basis that the concerns raised were not of particular significance, or that the working environment at Liverpool was consistent with, if not better than, that which is to be found at stations across the state. Whether the circumstances at the Liverpool fire station are commensurate with those at fire stations other than Busby, or consistent with what a firefighter might expect, does not directly address the question as to whether the Busby Firefighters have suffered a reduction in amenity as a result of the relocation. 3. Second, I was provided with no assistance as to what "amenity" means in the context of the Standing Order. The definition of the word in the Macquarie Online Dictionary includes the following: noun (plural amenities) 1. the quality of being pleasant or agreeable in situation, prospect, disposition, etc.; pleasantness: the amenity of the climate. 2. (plural) agreeable features, circumstances, ways, etc. 3. (plural) features, facilities, or services of a house, estate, district, etc., which make for a comfortable and pleasant life. (Emphasis in original) 1. Applying this definition, I consider that a "reduction in amenity" will occur when firefighters experience a reduction in the features, facilities or services available to them such as to make less comfortable or pleasant their working arrangements. That is, when there has been a change in the amenities available to the firefighters which has resulted in a reduction in amenity. 2. Third, the Standing Order ostensibly requires a percentage value to be given to any reduction in amenity, so as to distinguish between "low", "moderate" and "significant" impacts. During closing oral submissions, the FBEU submitted that this case called for "an evaluative judgment based on a fact finding exercise". I agree. 3. Determining the impact of any reduction in amenity is necessarily an evaluative exercise, having regard to the evidence. It follows that the percentages contained in the Standing Order must be regarded as indicative but not absolute. They inform the meaning to be attached to the adjectives "low", "moderate" and "significant". A strict and literal application of the percentages would require the existence or creation of an objective set of criteria against which the loss of a particular facility might be ascribed a percentage value. How else could the Commission (or anyone else for that matter) decide whether or not there was a single percentage point of difference so as to move from "low" to "moderate", or from "moderate" to "significant"? Should the Busby Firefighters receive the Station Redevelopment Allowance? Building Report 1. The FBEU read a statement of James Deters, the annexures to which included his report of 4 December 2022 referred to at [12] above and one dated 28 April 2023. I determined that Mr Deters was an expert and his evidence was accepted on that basis, over the objections of FRNSW. 2. It was Mr Deters' second report of 28 April 2023 ("Building Report") which was the focus of attention during the hearing. In that report, Mr Deters set out his observations and conclusions following a review of the building works conducted at Liverpool fire station related to the relocation of the Busby Firefighters. He divided the works into two parts, namely the recline building and alterations to the existing Liverpool station building. He determined that for the purposes of the Building Code, the recline building should be classified as a Class 5 building and that the fire station building should be classified as Class 5 & 8. These classifications formed the basis of Mr Deters' assessment as to whether the structures complied with the Building Code. 3. Mr Deters was cross-examined extensively regarding his classification of the structures. He steadfastly maintained that his conclusions in this regard were correct, recognising that the structures did not perfectly align with the classifications in the Building Code and that he had applied those which "best fit". 4. Despite challenging Mr Deters on his conclusions, FRNSW did not lead evidence to contradict them or even to suggest an alternative classification for the structures. The only evidence which contains any indication as to FRNSW's view as to the classification of the building is in a letter from John Cassimatis, Senior Project Manager, Property Services for FRNSW to Vijay Perumal of Custom Development Certifications dated 22 November 2022 (a letter tendered into evidence by the FBEU, not FRNSW). The letter included the following: "The intended use of the reclines as provided in the above-mentioned premises, are not deemed 'Sole Occupancy Units' as defined within the National Construction Code (2019 Amendment One). These areas are occupied exclusively by Fire & Rescue NSW staff. These areas are designed for fatigue management of staff whilst on shift and not used by any off-duty personnel. Whilst a firefighter may sleep within the reclines whilst on duty, the utilisation of these rooms is like a staff rest room/sick bay as provided within commercial buildings. It is therefore considered that these areas are ancillary to the Principal Use of the Fire Station (being a Class 5/9b Building)." 1. FRNSW led no evidence to explain the meaning or import of the recline building being ancillary to the principal use of the Liverpool fire station and what impact that would have on the classification of the recline building. 2. The lack of evidentiary challenge to Mr Deters' classification of the recline building is noteworthy, given that the issue has been the matter of controversy for some time. In his report of 4 December 2022 referred to at [12] above, Mr Deters stated that "Class 5 has been considered to be the most appropriate classification" for the recline building. In its email to the FBEU of 13 December 2023 referred to at [15] above, FRNSW dismissed the concerns raised by Mr Deters in his report on the basis that they were not relevant since a "majority of the issues raised are based on a different opinion of the building classification for the temporary structures". There is nothing in the evidence to explain the nature or significance of the "difference of opinion" to which the email referred. 3. It follows that there is no basis on which I would reject Mr Deters' classifications of the structures. 4. In the Building Report, Mr Deters detailed his observations following inspections of the recline building and the Liverpool station building. It is not necessary to traverse all of them. In a number of instances, Mr Deters offered comments or expressed opinions that fell short of a positive conclusion as to compliance with the Building Code. He suggested in a number of cases that the particular issue be referred to a suitably qualified expert for opinion. Even having regard to Mr Deters' qualifications and experience, those aspects of the Building Report are of limited assistance and accordingly I have afforded them little weight. I have predominantly confined my consideration to those areas in which Mr Deters offered positive conclusions as to the structures' compliance with the Building Code. 5. FRNSW did not lead evidence to challenge directly the conclusions reached by Mr Deters. However, they were the subject of extensive cross-examination. 6. Mr Deters findings in respect of the recline building may be summarised as follows: 1. the sandwich panel walls will not achieve the required fire resistance levels and are non-compliant with cl C1.1 of the Building Code and Specification C1.1. In considering this conclusion I am mindful that under cross-examination Mr Deters accepted that he is not a materials expert; 2. there is a lack of fire protection at the openings at the northern end of the building and at the openings in the external walls caused by air-conditioning units, resulting in non-compliance with cl 3.2 of the Building Code; 3. assuming that an external generator does not form part of the building (about which Mr Deters expressed a contrary view, but considered ought to be referred to a suitably qualified electrical engineer), under cll E1.10 and E2.3 of the Building Code additional fire safety measures are required to protect the building, as well as the existing fire station building, from any fire occurring in the generator; 4. the two-step stairway providing access to the building is not provided with a hand-rail as required by cl D2.17 of the Building Code; 5. the building does not comply with cl E1.4 and cl E2.2 of the Building Code (the provision of fire hose reel coverage, and smoke detection and alarm system, respectively), notwithstanding the installation of battery-operated fire alarms; and 6. the individual reclines have inadequate natural ventilation to achieve compliance with cl F4.6 of the Building Code. Mr Deters stated that although each of the reclines has an air-conditioning unit, he did not consider them to be a mechanical ventilation system, but rather recycled air within the room. He conceded under cross-examination that he is not a mechanical engineer so cannot offer expert advice regarding air-conditioning or mechanical ventilation. However, he stated that as a building surveyor and as someone who uses an air conditioner he can "read the side of the air conditioner". 1. In relation to the Liverpool fire station building, Mr Deters' conclusions may be summarised as follows: 1. it is "unlikely" that the masonry northern walls of the building achieve the required fire resistance level; 2. an opening in the wall to allow for the installation of plumbing lacks fire protection, resulting in non-compliance with cl C3.2 of the Building Code; 3. additional fire safety measures are required to protect the building from any fire occurring in the external generator, consistent with the observations at [37(3)] above; 4. the door from the engine bay to the hallway outside the station officer's office is locked from the engine bay side of the door. As such, it is not a compliant egress route within the meaning of cl D2.21 of the Building Code; 5. the building does not comply with cl E1.4 of the Building Code, in that fire hose reel coverage is not provided to the new works. Mr Deters conceded under cross-examination that he had not measured the length of the fire hoses; and 6. the smoke detection and alarm systems do not comply with cl E2.2 of the Building Code. This conclusion was premised on the fact that the new office area and lounge area have not been fitted with smoke detectors. 1. The FBEU submitted that the Building Report demonstrated that the recline building and Liverpool fire station were "substantially non-compliant" with the Building Code. In oral submissions, it contended that the Building Code is a "set of minimum standards for safe habitability" which is something that "people are entitled to expect in buildings in which they are required to live". 2. FRNSW rejected the contention that the buildings were "substantially non-compliant". However, it submitted that even were that to be the case such non-compliance "would say nothing as to the reduction of amenity". 3. It is not necessary to determine whether any non-compliance with the Building Code is "substantial" or not. I accept the submissions of FRNSW that to the extent that the FBEU relied on the Building Report, it must be shown that its conclusions result in the Busby Firefighters suffering a reduction in amenity when compared to that which they enjoyed at the Busby station. 4. I accept that the Busby Firefighters have moved from premises which were presumably compliant with the Building Code (noting that there was no evidence to suggest otherwise) to one which is not. I am not convinced of the significance of this fact alone to the concept of "amenity". 5. I am unable to conclude that the identified non-compliance with the Building Code means that the recline buildings and the Liverpool station are wholly unfit for purpose or not habitable. I note three things in particular in this regard. First, there was no conclusion in the Building Report to that effect. 6. Second, the FBEU's evidence included a letter from Mr Perumal of Custom Development Certifications to Mr Cassimatis of FRNSW dated 29 November 2022. That letter included the following: "As Registered Certifiers, we have reviewed the Design documentation for the above-mentioned project and conducted a site inspection of the above-mentioned premises, for compliance with the current building assessment provisions. After review of the below-mentioned documentation, it can be confirmed that in our professional opinion, the construction of the Reclines located at the above-mentioned premise is fit for purpose relevant to its intended use." 1. Third, the FBEU's evidence also included a letter from Rogers Construction Group Pty Ltd to FRNSW dated 2 November 2022 titled "Recline Certification". The letter stated that the "recline rooms are compliant for a habitable building as per the National Construction code 2019". 2. Mr Perumal did not give evidence, and nor did anyone from Rogers Construction Group Pty Ltd. The evidence does not allow me to examine the basis on which the conclusions expressed in the letters have been reached. The Building Report states that Mr Deters had received each of the letters, but I can find no observations from him regarding the views expressed in them. Indeed, I am unable to determine whether there is in fact a conflict between the letters and the Building Report. Evidence from Busby Firefighters 1. The FBEU read statements from two firefighters, Mohammed Haddad and Chris Ziochos. Each were Busby Firefighters who relocated to the Liverpool station. They gave evidence as to their experiences, and how they regarded the Liverpool premises as providing less amenity than those they enjoyed at Busby. 2. I observe that Mr Ziochos has not worked at the Liverpool station since 26 March 2023, as he has been performing light duties elsewhere as a result of an injury. Mr Haddad transferred to Campbelltown Fire Station on 31 May 2023, at his request, as a result of the conditions at the Liverpool station. 3. The evidence led by FRNSW in response was limited. There was, in particular, no evidence which contradicted the descriptions by Mr Haddad and Mr Ziochos of the facilities available at the Busby premises. The high point was a comment in the statement of Paul McGuiggan, Assistant Commissioner for FRNSW Metropolitan Operations, that "the very state of Busby Station, is the reason for the redevelopment of Busby Station and for the Busby firefighters being relocated to Liverpool for the duration of the redevelopment". Mr McGuiggan did not elaborate as to the "state" of the Busby station or how it compared to Liverpool. 4. I was shown video footage of the Busby premises as at 12 May 2023. It revealed a building which appeared to be dated and somewhat rundown. That said, at the time the video was taken the building had been stripped out in anticipation of renovation and had been unoccupied for some months. While the footage allowed me to get a sense of the layout of the station, it was difficult to form an impression as to what the amenity may have been when it was fully furnished and equipped. In the discussion which follows, I have accepted the description of the facilities at Busby station as provided by Mr Haddad and Mr Ziochos. 5. I will address the concerns raised by the FBEU in turn. Sleeping arrangements 1. The Busby station had four reclines. Two of these were in a room in the station building, separated by a privacy screen. In practice, the room was in most instances only occupied by one firefighter. The room had a large openable window. The other two reclines adjoined the gym. One of these had a large openable window and the other had a large screen door providing ventilation. Each recline had split system air conditioning. 2. The recline building at Liverpool station is a demountable located outside the building, connected by a covered walkway. The doors to each room open to the outside. There is no screen door on any of the rooms. The windows to each room cannot be opened. While fitted with air conditioning units, these were initially centrally controlled, meaning that temperatures in each room could not be separately adjusted. That has since been rectified. 3. Mr Haddad stated that he found the reclines to be "uncomfortable and claustrophobic". He stated that the air conditioning was noisy, was either too hot or too cold and created condensation to the walls. He described insects such as mosquitos entering the room through gaps in the wall where the air conditioning unit was mounted. As a result of the conditions, Mr Haddad deposed that he "slept poorly". 4. Mr Ziochos gave evidence to a similar effect. He described being unable to regulate the temperature in the reclines. He said the air conditioning was loud. He stated that as there was a lack of ventilation the reclines were "stuffy" and that he woke up congested. 5. FRNSW's rejoinder to these concerns was to suggest that the firefighters could simply leave the door to the recline open. That suggestion does not withstand scrutiny. The doors open externally, which would give rise to legitimate security and privacy concerns if they were left open, particularly while a firefighter was asleep. The absence of a screen door also raises the possibility of insects and wind-blown debris entering the room. 6. Mr Haddad deposed to a meeting he attended on or about 6 December 2022 with Craig Brierley, the Area Commander Metropolitan South for FRNSW, and others. He stated that during the meeting Mr Deters' report of 4 December 2022 had been discussed. Mr Haddad deposed that "Mr Brierley agreed that the report was damning and that firefighters should not occupy the sleeping quarters until further notice". 7. Under cross-examination, Mr Haddad was repeatedly challenged as to his recollection of this meeting. He maintained that Mr Brierley had used words which "instructed", "directed" or "advised" the firefighters not to use the reclines. 8. FRNSW relied on a statement from Mr Brierley, who deposed in response to Mr Haddad's evidence: "…I say that the meeting was on 6 December 2022 at 0900 with the identified participants. I discussed with those present the difference in opinion between FRNSW and the FBEU in regard to the compliance of the recline buildings. I advised I was not qualified to comment on the FBEU report and was not going to insist firefighters utilise the reclines, until a decision was reached between FRNSW and the FBEU on the compliance issue of the recline buildings." 1. FRNSW submitted that Mr Brierley, who was not required for cross-examination, "denies the version of events put by Mr Haddad". I do not accept that submission. The FBEU submitted, correctly in my view, that the evidence of Mr Brierley did not directly dispute Mr Haddad's version of the conversation. It is possible that the conversation may have included the words described by each of the witnesses. 2. I am satisfied that the reclines for the Busby Firefighters at Liverpool station provide less amenity than those which were provided at the Busby station. I am not persuaded that the recline building is wholly unfit for purpose. 3. As already observed, from 6 December 2022 the Busby Firefighters determined that they would not use the reclines, ostensibly at the direction of Mr Brierley, but instead made alternative arrangements to sleep in the station building. Each of Mr Haddad and Mr Ziochos described in some detail the inadequacy of these arrangements. Their concerns included matter such as a lack of privacy, disturbance by light and noise and the fact that other firefighters may be deprived of the use of the watch room, the kitchen or the training room if a firefighter is sleeping there. 4. In its written submissions, FRNSW expressed astonishment at the proposition "that firefighters are able to decide to sleep in the areas most unsuited to sleeping and then claim a higher allowance for the lack of suitability of the area". I have some sympathy for that submission. Despite the evidence of Mr Haddad and Mr Ziochos, I am not persuaded that the conditions in the reclines were such that the firefighters had no choice but to make alternative arrangements, or indeed that they provided less amenity than the current sleeping arrangements. Further, Mr Haddad's evidence suggested that the Busby Firefighters had decided not to use the reclines prior to the meeting attended by him and Mr Brierley on 6 December 2022. 5. However, as the evidence suggests that the firefighters were told not to use the reclines "until further notice", alternative arrangements needed to be made. In considering reduction in amenity I have taken into account the concerns expressed by Mr Haddad and Mr Ziochos as to the current sleeping arrangements. 6. Finally in respect of the sleeping arrangements, at the Busby station the station officer had an office and a separate recline room, both of which had large openable windows. At Liverpool, there is no separate recline, with the station officer sleeping in their office. Consequently, I am persuaded that station officers have suffered a reduction in amenity as a result of the relocation. Bathrooms 1. The Busby station had a large change room containing four cubicles, comprising two showers and two toilets. The cubicles were separated by partitions, with a relatively small gap at the ceiling. The doors had small gaps at the top and bottom. Mr Haddad stated that all four could be used simultaneously. In addition, the station officer at Busby had their own change room. As a result, firefighters rarely had to wait to use the shower or toilet. 2. At the Liverpool station, the Busby Firefighters have access to a male and female change room, with each having a toilet and shower. Each room can be used by only one person at a time. 3. The evidence suggests that the gender separation of the change rooms at Liverpool is not absolute. Mr Haddad stated that since March 2023 the change rooms have been designated male and female only when female fighters are on shift. He stated prior to his departure there was no female firefighter in his platoon. 4. Consequently, when one or more female firefighters are rostered on, up to three male firefighters will need to share one change room. When only males are rostered on, four firefighters will need to share two change rooms. The only times at which this is likely to change is during handover, when Mr Haddad stated that up to 8 or 10 firefighters might be at the station at the one time. 5. The increase in the number of females in the ranks of the Busby Firefighters is relevant when comparing the facilities at the Busby station with those at Liverpool. The FBEU described the change room at Busby station as being "unisex", although I have some doubts as to whether a female firefighter would have been expected or required to use the toilet or a shower when a male was in the change room. This is a matter of hypothesis, as apart from a station officer (who had their own change room) there appear to have been no female firefighters at the Busby station. In his statement, Mr McGuiggan referred to the need to redevelop more dated buildings such as that at Busby "to address the issue of diversity in the ranks of firefighters". 6. Having regard to these matters, it may be that in so far as the change room facilities are concerned, a female firefighter would enjoy greater amenity at the Liverpool station than that which would have been available had she commenced employment at the Busby station. 7. Mr Haddad and Mr Ziochos also raised concerns as to whether the change room facilities at Liverpool station permitted them to comply with FRNSW's "carcinogenic policy", which was said to require firefighters to shower within one hour of attending an incident at which they are exposed to carcinogens. I am not convinced that this is an accurate reflection of the requirements of the relevant policy and, even if it were, that the existing facilities are inadequate to enable compliance. It is not a feature on which I have placed significant reliance. 8. The FBEU also contended that the positioning of lockers at Liverpool was less convenient than had been the case at Busby, occasioning firefighters to leave the change rooms in a towel. I am not persuaded that this is a prevalent situation or, more particularly, that the arrangements at Liverpool make it necessary. A firefighter could take a change of clothes into the change room, for example. Again, this is not a matter on which I have placed much weight. 9. Overall, I accept that for the male workforce there may be some inconvenience and possibly delays in being able to use the toilet and shower facilities at Liverpool, which were not experienced at the Busby station. I am mindful that in case of need, the facilities available to the Liverpool Firefighters might be accessed. To the extent that Busby Firefighters have suffered a reduction in amenity arising from the different change room facilities, I do not consider it to be a significant one. Noise 1. There is only one appliance attached to Busby station; there are two attached to Liverpool station. The result is that under the current arrangements there are three appliances at Liverpool. Each of Mr Haddad and Mr Ziochos deposed to being disturbed by bells alerting the Liverpool Firefighters that they are required to attend an incident and by the Liverpool appliances returning to the station. 2. FRNSW relied on a statement of Gregory Rankin, the Chief Superintendent Operational Staffing and Talent Acquisition at FRNSW. He stated that it is common for stations to have more than one appliance, and for one and not the other to be "turned out" (leave the station in response to an emergency call). In a similar vein, Mr Ziochos was asked in cross-examination to confirm that it was "part and parcel" of being a firefighter to be disrupted by alarm bells. 3. Consistent with my earlier comments, I am not assisted by this evidence. It does nothing to address the question as to whether there has been a reduction in the amenity of the Busby Firefighters as a consequence of the relocation. 4. At Busby, there was one station and one appliance. At Liverpool, there are two stations and three appliances. It is inevitable that the Busby Firefighters will hear bells for Liverpool station to which they are not required to respond, but which will still disturb them. As Mr Ziochos stated, "when you hear bells, it doesn't matter whose they are, you automatically just wake up. That's just become second nature." 5. I am mindful that the evidence revealed that in approximately 25% of cases, the Busby appliance would be called out at the same time as a Liverpool appliance. Even taking that into account, I am satisfied that the Busby Firefighters would now hear and be disturbed by more bells than would have been the case at the Busby station, although I am unable on the evidence to quantify the increase. I also accept that the Busby Firefighters would be disturbed by a Liverpool appliance turning out or returning. This is a reduction in amenity. Use of gymnasium 1. The Busby Firefighters had the use of a gym at the Busby station. They are now required to share a gym at the Liverpool station with the Liverpool Firefighters. Mr Ziochos described the gym as not being big enough and not having enough equipment for both stations to use at the same time. 2. Each of Mr Ziochos and Mr Haddad accepted under cross-examination that it would be possible to make arrangements for the Busby Firefighters and the Liverpool Firefighters to use the gym at different times. It follows that I do not consider that the requirement to share the gym has resulted in any considerable reduction in amenity. Guttering and downpipes on the recline building 1. In their statements, each of Mr Ziochos and Mr Haddad raised concerns that there was a lack of guttering and downpipes at the rear of the recline building. However, under cross-examination Mr Ziochos stated that he could not recall this affecting his comfort at work. Mr Haddad deposed under cross-examination that it affected his amenity, in that during periods of heavy rainfall he could hear water which had fallen from the roof hitting the concrete floor outside. 2. This is not a matter to which I have attached considerable weight. Conclusions 1. Having regard to the conclusions reached by Mr Deters in the Building Report, particularly in respect of the recline building, and the evidence of Mr Haddad and Mr Ziochos, I accept that the Busby Firefighters have suffered a reduction in amenity as a result of the relocation. However, I am not persuaded that the reduction in amenity could be described as "significant" within the meaning of the Standing Order. To do so would require a finding that amenity is determined predominantly by the sleeping arrangements, and this has not been established. 2. Equally, I do not accept that on and after 14 December 2022 the reduction in amenity could be described as "low". In light of the reduction in amenity that I have found to exist, and noting that improvements to the facilities available to the Busby Firefighters have continued to be made into 2023, I do not consider that there was a proper basis for FRNSW to reduce the quantum of the Station Redevelopment Allowance being paid to the Busby Firefighters from "moderate" to "low" from and after 14 December 2022. 3. For these reasons, for the purposes of the Standing Order I find that the reduction in amenity for the Busby Firefighters has at all times been at the "moderate" level. It follows that they should have continued to receive payment of the Station Redevelopment Allowance at that level on and after 14 December 2022 and should continue to receive that allowance for as long as the recline building and Liverpool station building remain in their current condition. Liverpool Firefighters 1. No evidence was led from a Liverpool Firefighter as to how their amenity had been affected by the temporary relocation of the Busby Firefighters to the Liverpool premises. Instead, the FBEU relied on evidence from Mr Haddad as to how "[t]he relocation to Busby firefighters to Liverpool station has resulted in a reduction in Liverpool station's access to amenities". Mr Ziochos similarly referred to how the relocation had impacted on "Liverpool station's use of amenities". Consistent with my earlier observations, the question is how a reduction in access to amenities had resulted in a reduction in amenity. 2. From the evidence led by the FBEU, it is possible to identify seven areas in which it is contended that the relocation has negatively impacted on the Liverpool Firefighters. First, Mr Ziochos stated that as a consequence of the limited shower and toilet facilities available for the Busby Firefighters, they may "if required" use the Liverpool Firefighters' change room "causing inconvenience to Liverpool firefighters". Under cross-examination, he deposed that he had used the Liverpool station's change room, but there is no basis on which to assess how prevalent the practice is and the extent to which it inconveniences the Liverpool Firefighters. 3. Second, the Busby appliance is parked in the engine bay of Liverpool station, which was previously vacant and used as the station's training area. Mr Haddad stated that he did not know where the training was now conducted, but that the Liverpool Firefighters were now required to travel off-site to undertake the training. He was unable to explain under cross-examination how he considered this to affect the amenity of the Liverpool Firefighters. 4. Mr Ziochos opined that, with a covered area no longer available, the training for the Liverpool Firefighters was "fair weather dependent and dangerous if there is foreign material on the ground such as rocks or metal". The risk identified by Mr Ziochos appeared to be hypothetical and not based on observation. 5. Third, the Busby Firefighters were allocated the Liverpool station's breathing apparatus room. Mr Haddad and Mr Ziochos stated that as a makeshift arrangement, the Liverpool Firefighters used a sink outside the mess area, which created risks as the potentially contaminated breathing apparatus equipment had to be carried through the kitchen area. This concern appears to have been addressed by FRNSW in mid-April 2023, when it installed a temporary breathing apparatus room for the Liverpool Firefighters. 6. Fourth, Mr Ziochos stated that Busby Firefighters' change rooms are built in what was formerly Liverpool station's turnout area and storeroom, which has "required Liverpool station to relocate their storeroom and training room". Mr Ziochos conceded under cross-examination that this had no impact on the amenity of the Liverpool Firefighters. 7. Fifth, Mr Ziochos and Mr Haddad stated that the Liverpool Firefighters would be disturbed by bells for the Busby appliance, when previously they would only have heard bells for their own. I accept that this is the case, although there is no evidence before me as to the quantum of additional bells that would now be heard by Liverpool Firefighters. Even so, I accept that this would amount to a reduction in amenity. 8. Sixth, the Liverpool Firefighters are required to share the gym at the Liverpool station. I repeat the observations I made at [81] above. I do not consider that this has any significant bearing on amenity. 9. Seventh, Mr Haddad referred to the Liverpool Firefighters no longer having the use of the vacant space at the rear of the station which is now occupied by the temporary recline building. There is no evidence of that area having previously been used by the Liverpool Firefighters and how the inability to use the area is said to have affected their amenity. 10. Overall, I accept, even in the absence of evidence from one of their number, that the relocation would have visited, and be visiting, some inconvenience on the Liverpool Firefighters. This would have resulted in the loss of some amenity, which will continue until the Busby station premises are redeveloped and the Busby Firefighters return to them. 11. However, having regard to the evidence as a whole, I find that the Liverpool Firefighters have not suffered a reduction in amenity such as to qualify for payment of the Station Relocation Allowance, even at the "low" level. Claim for Award allowances 1. The FBEU seeks an award requiring the payment to the Busby Firefighters of either a kilometre allowance under cl 6.6.2.2 of the Award ("Kilometre Allowance") or travelling compensation pursuant to cl 26.6.5.4 of the Award ("Travelling Compensation"). For the sake of emphasis, I note that the claims are advanced in the alternative. In each case, the payment would be calculated by reference to "the return distance between Busby fire station and Liverpool fire station". 2. These claims involve the construction of the Award. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act. 3. In construing the Award, I have been guided by the principles set out in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [21]-[23]. It is not necessary to reproduce those passages. 4. I am mindful that s 175 does not confer a declaratory jurisdiction on the Commission. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10]. I am satisfied that the approach taken in these proceedings is consistent with the Act. Kilometre Allowance 1. Relevantly for the purposes of the FBEU's claim for the Kilometre Allowance, the Award provides as follows: 1. clause 6.6.2.2 requires that "Operational Firefighters who travel between stations pursuant to Clause 12, Relieving Provisions" be paid the "Kilometre Allowance set at Item 2 of Table 3 of Part C, per kilometre"; 2. clause 12 of the Award applies to "Relieving Employees, as defined in Clause 4, when such employees work a rostered shift at either the employee's base station/location or performs a relief duty at another station/location" and to "[o]ther employees when such employees perform an 'Outduty', as defined in Clause 4": cl 12.1; and 3. the definition of "Outduty" in cl 4 relevantly includes "a period of relief duty performed by a Non-Officer or Officer, not being a Relieving Employee or the occupant of an Operational Support position, where the Non-Officer or Officer either commences and/or ceases their rostered shift at a station/location other than the station where the Non-Officer or Officer normally reports for duty…". 1. The FBEU's written submissions made the following contentions: "19. The Busby firefighters are all either Non-Officers or Officers. None are Relieving Employees or Occupational Support position holders. They are unquestionably commencing and ceasing their rostered shift at a station other than their normal one. 20. 'Relief duty' is not defined. Although in practice it commonly arises where a position needs to be backfilled, this is not its full meaning. Understood correctly, it refers to duty involving dislocation from the employee's ordinary work, engaged to facilitate some operational need for Fire + Rescue: here, the redevelopment of Busby station. 21. Accordingly, the Busby Firefighters are, in the period they are required to work at Liverpool rather than their home station, performing a duty of the kind contemplated by cl.6.6.2 and entitled to the allowance. 22. It is true that they are not travelling between the two stations each day. However, this is too literal a reading of cl.12: it is more correctly understood as being directed at the circumstance where a firefighter is, at Fire + Rescue's request, required to travel further than they ordinarily would have to, within the scope of cl.12. If this were not so the reference to cl.12 would be otiose." 1. FRNSW disputed that the Busby Firefighters are entitled to payment of the Kilometre Allowance. It drew attention to the Macquarie Online Dictionary definition of "relief" as including "release from a post of duty, as by the coming of a substitute or replacement" and "the person or person thus bringing relief". It submitted that the FBEU's argument that it should encompass "dislocation from the employee's ordinary work" is contrary to the ordinary meaning of the word. FRNSW further submitted that the FBEU had not explained why the requirement for "travel between stations" in cl 6.6.2.2 could be disregarded. 2. In his statement, Mr McGuiggan stated: "12. …All firefighters have a base station or location. There are a group of firefighters who apply to become a reliever. This means they have a base station but most of their work is performed at another station/location to cover for minimum staffing requirements. …All other firefighters at a station/location who are not relievers, can be ordered to perform an outduty, that is a shift worked at another station/location for minimum staffing purposes, 12 times per calendar year (subclause [12.17.1]). The fire-fighter may elect to work more. …" 1. There are two elements in cl 6.6.2.2 which must be satisfied: first, that the employee "travel between stations"; and, second, that this travel take place "pursuant to" cl 12. 2. The Busby Firefighters are not travelling between stations. In oral submissions, the FBEU contended that the words of cl 6.6.2.2 "can't just mean travelling between stations". I do not see why not. It is a clear and unambiguous requirement. It is not enough for the FBEU to contend that to require such travel would be "too literal a reading" of the provision. The FBEU's proposed construction of the provision requires an interpretation that the words simply do not bear. The claim must fail on that basis. 3. Even were that not the case, the claim would otherwise fail as any requirement to travel is not "pursuant to" cl 12. The Busby Firefighters are not Relieving Employees. For cl 12 to apply to them it must be shown that they are performing an "outduty". The definition of this term requires them to be undertaking "relief duty". I do not accept that "relief duty" should be given the meaning for which the FBEU contends. In the context of the Award as a whole, and cl 12 of the Award in particular, the ordinary grammatical meaning of the term is to be preferred. That is, substituting for other employees or supplementing the workforce at another station as required. 4. For these reasons, I find that the Busby Firefighters are not entitled to payment of the Kilometre Allowance under cl 6.6.2.2 of the Award. Travelling Compensation 1. The FBEU's written submissions articulated its claim for Travelling Compensation as follows: "23. Clause 26 of the Award deals with the various circumstances in which, and rates at [which], Firefighters will be compensated for travelling time. 24. Clause 26.6.5.4 provides that firefighters will be reimbursed at the Official Business rate set elsewhere in the Award 'where an official motor vehicle is not available, and public transport was not reasonably available for the journey [and] the employee agrees to use [their] private vehicle.' 25. The circumstances in which this entitlement arise are explained throughout the clause; it effectively distills to an unsurprising recognition that where employees are required by Fire + Rescue to engage in travel in excess of their normal obligations, and take their own vehicle to do so, they should be compensated. 26. This is what is happening here. Accordingly, the allowance ought be paid." 1. Mr Haddad deposed that following the relocation, his daily commute to work increased from 25 to 30 minutes, to "up to 55 minutes". Mr Ziochos also deposed to having a longer commute. He stated that there are limited public transport options for travel to the Liverpool station. 2. FRNSW resisted the FBEU's claim for Travelling Compensation on the basis that it was a claim for enforcement of the Award, and that if it wished to make such an application it should. It contended that in any event the conditions for payment under cl 26.6.5.4 have not been met. 3. To provide context to the FBEU's claim, cl 26 of the Award relevantly provides as follows: 26. Travelling Compensation 26.1 Excess Travelling Time – When an Operational Firefighter is required to travel outside their normal hours of duty the Operational Firefighter may apply for payment for excess time spent travelling… … 26.2 Waiting Time – When an Operational Firefighter qualifies for the benefit of Excess Travelling Time, necessary waiting time is to be counted as Travelling Time calculated as follows… … 26.3 Meal Allowances 26.3.1 When an employee is required to perform official duty at a temporary work location and is not required to reside away from home (a one day journey), the employee shall be eligible to be paid the following meal allowances… … 26.4 Accommodation Allowances – When an employee is required to perform official duty at a temporary work location which requires the employee to reside away from home and the employee is not provided with accommodation by the Government, the employee shall be eligible to be paid the following accommodation (sustenance) allowances… … 26.5 Incidental Expenses Allowances – Government Provided Accommodation – When an employee is required to perform official duty at a temporary work location which requires that the employee reside away from home and is provided with accommodation by the Government, the employee shall be eligible to be reimbursed expenses properly and reasonably incurred during the time actually spent away from the employee's residence in order to perform that duty and in addition be paid an allowance at the rate set at Item 10 of Table 4, of Part C as appropriate. Such expenses are limited to costs in relation to food, laundry and accommodation that exceed what would normally have been incurred at home. Any meal taken at a Government establishment is to be paid for and appropriate reimbursement sought. 26.6 Additional Provisions 26.6.1 Unless specifically provided for in Clause 12, Relieving Provisions, Clause 16, Training Course Attendance Entitlements or Clause 25, Court Attendance Entitlements, the provisions of this clause shall not apply in the circumstances provided for by those clauses. Nor do they apply to Recruits undertaking College training. 26.6.2 When an employee is required to travel to a temporary work location or to attend a training course or conference on what would normally be regarded as a one day journey and the time of travel will exceed four hours on any one day in addition to the normal hours of work, the employee may be directed or may request that the employee reside temporarily at a place other than the employee's residence to avoid such travel time on any day and in such case shall be entitled to the accommodation allowances as appropriate. 26.6.3 The claim for an accommodation allowance or reimbursement of expenses shall be for the whole of the period of absence and cannot be dissected into part of the time of the absence by way of allowance and part of the absence being compensated by reimbursement. 26.6.4 When an employee in receipt of an accommodation allowance is granted special leave to return home from a temporary work location, the employee shall be reimbursed for the cost of the return rail fare or if a first class rail service is reasonably available, the cost of a first class return rail fare, or a motor vehicle allowance at the appropriate specified journey rate set at Item 1 of Table 4 of Part C to the value of the rail fares. No taxi fares or other incidental expenses are payable. 26.6.5 An employee shall be entitled to the option of using public transport or reimbursement for the use of the employee's private vehicle on the following basis: 26.6.5.1 Reimbursement is not to be paid for a journey if an official motor vehicle is available for the journey. 26.6.5.2 If an official motor vehicle was not available but public transport was reasonably available for the journey, the amount of any reimbursement is not to exceed the cost of the journey by public transport. 26.6.5.3 Where the employee elects to use a private vehicle the employee shall be reimbursed at the specified journey rate prescribed from time to time or the cost of public transport, whichever, unless the Commissioner approves otherwise, is the lesser. 26.6.5.4 Where an official motor vehicle is not available, and public transport was not reasonably available for the journey, if the employee agrees to use the employee's private vehicle, reimbursement shall be at the appropriate Official Business rate set at Item 11 of Table 4 of Part C. … 26.6.5.6 The Commissioner is to consider the convenience of the employee when an employee is required to travel to a temporary work location. …" 1. To my mind, the relief sought by the FBEU – namely, that the Busby Firefighters be paid Travelling Compensation "for the return distance between Busby fire station and Liverpool fire station" – goes beyond its submission that they be compensated for being required to travel "in excess of their normal obligations". It is uncontroversial that no Busby Firefighter is required to travel between the two stations. On any analysis, the relief sought by the FBEU is seeking that the Busby Firefighters be reimbursed for travel which they are not undertaking. 2. This was reinforced in the oral evidence of Mr Haddad and Mr Ziochos. Each maintained under cross-examination that all Busby Firefighters should be compensated for the return distance between the two stations (whether by way of the Kilometre Allowance or Travelling Compensation), even if their daily commute was currently shorter than it had previously been. 3. Nothing in clause 26.6.5.4 of the Award requires a firefighter to be compensated for travel that they do not undertake. It follows that there is no basis for the Busby Firefighters to claim payment of Travelling Compensation for the return distance between the Busby and Liverpool fire stations. To a degree, the FBEU appeared to concede as much during closing oral submissions, with counsel for the FBEU observing that cl 26 is "about compensation" and that "compensation requires a form of loss". 4. Even were the FBEU's claim to be limited to seeking compensation for Busby Firefighters who now face a longer commute to work, I am not persuaded that cl 26 confers such an entitlement. The FBEU contended that the reference in cl 26.6.5.6 to "temporary work location" provides the context in which cl 26.6.5 operates. That is, it applies whenever a firefighter is "required to travel to a temporary work location", as is the case with the Busby Firefighters. I do not accept this construction. 5. Read as a whole, the clause is concerned with travel by a firefighter in the course of their employment which would require them to travel outside normal hours and/or expose them to expenses such as meals and accommodation that they would otherwise not incur. The several references in cl 26 to "temporary work location", including that in cl 26.6.5.6, must be seen in that context. I do not read the clause as providing for compensation for a firefighter's daily commute to work, even in the context of a relocation such as the present one. 6. For these reasons, I find that the Busby Firefighters are not entitled to payment of Travelling Compensation under cl 26.6.5.4 of the Award. Alternative claim in respect of travel 1. The FBEU submitted that in the event that the Commission was not satisfied that either the Kilometre Allowance or Travelling Compensation was payable under the Award, "it is apparent that this is a lacuna – and one which ought be filled". It contended that as a general proposition, FRNSW reimburses staff who are required to undertake more travel that usually required. It further contended that this was outside the contemplation of the matters for which the Station Relocation Allowance was intended to provide compensation. 2. The FBEU provided little assistance as to precisely how the alleged lacuna would be filled. It submitted (albeit in the alternative and put faintly) that FRNSW be required to give effect to a proposal made by Mr McGuiggan in a letter to Leighton Drury, the State Secretary of the FBEU, dated 19 October 2022. That letter predominantly set out the basis on which FRNSW then disputed that the Busby Firefighters had any entitlement to the Station Redevelopment Allowance. However, Mr McGuiggan also stated: "With regards the suggested travel allowance for staff, as you are aware no such provision exists however, I am willing to consider compensating staff at the Specified (Casual) Journey Rate who can identify that they have travelled further than they normally would in the course of their work and as a result of the temporary move." 1. I presume, although this was not made clear on the evidence, that "the Specified (Casual) Journey Rate" is a reference to the rate at Item 1 in Table 4 in Part C of the Award. 2. Each of Mr Haddad and Mr Ziochos deposed that they have a longer commute to work than they did previously. The evidence suggests that public transport options for travelling to the Liverpool station are limited. There is some force to the suggestion that an employee who, as a result of the temporary relocation, is now required to undertake a longer journey to and from work should be compensated for that. 3. However, I am not persuaded to make a finding that such a benefit be conferred on the Busby Firefighters, or even to make a recommendation to that effect. The FBEU has not adduced sufficient evidence to permit me to understand the implications, financial and otherwise, of doing so. 4. I am also mindful that Mr McGuiggan's letter of 19 October 2022 was sent whilst the parties were in discussions regarding the dispute, immediately prior to these proceedings being commenced. In his letter, Mr McGuiggan set out the basis on which FRNSW denied that the Station Redevelopment Allowance was payable at all, and his "willingness" to "consider" travel-related claims might have been an attempt at a negotiated resolution. That is a matter of speculation. Whether the suggestion was made on that basis and whether FRNSW would remain willing to consider such claims in the wake of it having subsequently agreed to pay the Station Redevelopment Allowance to the Busby Firefighters is unknown. It is not a matter to which Mr McGuiggan referred in his statement and it was not something put to him in cross-examination. Recommendations and directions 1. Having regard to the finding at [86] above, I recommend that FRNSW pay to the Busby Firefighters the Station Redevelopment Allowance at the "moderate" level, backdated to 14 December 2022, for as long as the recline building and Liverpool station building remain in their current condition. 2. I direct that: 1. FRNSW inform the Commission and the FBEU by no later than 4.00pm on 28 July 2023 whether it accepts the recommendation at [126] above; 2. if FRNSW accepts the recommendation, the parties confer with a view to reaching consensus as to how and when the recommendation will be implemented. 1. I propose to list the proceedings for report back on a date to be determined. The date of the listing will be subject to the information provided in response to the direction at [127(1)] above. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2023