Industrial Relations Commission of New South Wales CITATION: Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 [2009] NSWIRComm 125 APPLICANT: Commissioner of New South Wales Fire Brigades on behalf of Director of Public Employment PARTIES: RESPONDENT: New South Wales Fire Brigade Employees' Union FILE NUMBER(S): IRC 788 of 2009 CORAM: Walton J Vice-President; Kavanagh J; Grayson DP CATCHWORDS: AWARD PROCEEDINGS - invitation to make submissions - possible issue of contempt - participation of organization under Act - matter adjourned for written submissions LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 28 July 2009 EXTEMPORE JUDGMENT DATE: 28 July 2009 APPLICANT: Mr A Britt of Counsel Crown Solicitor's Office LEGAL REPRESENTATIVES: RESPONDENT: Mr J Nolan of Counsel New South Wales Fire Brigade Employees' Union JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President KAVANAGH J GRAYSON DP Tuesday 28 July 2009 Matter No IRC 788 of 2009 CROWN EMPLOYEES (NSW FIRE BRIGADES PERMANENT FIREFIGHTING STAFF) AWARD 2008 Application by Crown Solicitor's Office for variation re clause 13.3 STATEMENT [2009] NSWIRComm 125 1 The matter has been listed, upon the Commission's own motion, in order to invite the parties to these proceedings and, in so far as he might be minded to do so, Mr Jim Casey, to make submissions about what appears to be an article written by Mr Casey in the Winter edition, 2009, of the journal of the New South Wales Fire Brigade Employees Union, the "NSW Firefighter". 2 We would wish to emphasise that our invitation to make submissions contains no element of compulsion. No order or direction has been or will be made to that effect unless the Commission in future makes such an order. Hence, the parties are neither today nor in the future being required to make submissions as to the article or its publication or any related consideration, unless that position is altered by direction or order of the Commission. 3 It is important to emphasise that procedure as, whilst we are not intending to deal with any question or issue of contempt today, the mere prospect that the matter could at any time involve the question of contempt requires us to exercise that caution. Time will be allowed to present submissions in writing after, if appropriate, the receipt of legal advice. 4 There are some preliminary matters which we propose to raise today. 5 First, we do not know, other than from the face of the document, whether the document is a true copy of an article published by the Union in its journal under the authorship of Mr Casey. 6 Secondly, the matter has been raised in the present proceedings because the proceedings are extant. It would appear that the article, if written and published, may have been published after these proceedings were initiated by the Commissioner of NSW Fire Brigades or commenced before the Commission. Further, these proceedings seem to have a connection to the earlier proceedings before this Full Bench which appear to be the subject matter of this article. 7 Thirdly, and putting aside questions of contempt, the article may raise other and additional issues concerning the Union under the Industrial Relations Act 1996. If the article were published or its contents propounded by the Union to its Members, other industrial interests or the Commissioner of Fire Brigades, then questions may arise about the standing of the organisation to bring or prosecute matters in the industrial jurisdiction of the Commission. Apart from any views expressed about the Commission itself or its Members, the article may be read as suggesting that the organisation eschews the process of arbitration under the Act in favour of industrial strife, wherever possible, and may also be construed as an attempt to place pressure on the employer, a party to proceedings before the Commission, to agree to present and future claims by the Union in consequence of the threat of industrial action or other forces of coercion. This latter consideration may be referrable to contempt but is not raised in that context here. Rather, the question concerns the role of an industrial organization under the Act. 8 Fourthly, in due course, and to the extent necessary, we will give consideration as to whether any issue of contempt arises for either the Union or Mr Casey in respect of the article and any publication or promulgation of it. 9 We propose to provide the parties and Mr Casey two weeks to make any submissions, if they choose to do so, and then list the matter, as may be appropriate in light of any submissions received by us. We do not give the matter any further listing at this time, but will advise the parties in due course as to any further steps we intend to take in or as to the matter. 10 We now propose to adjourn. We do not call upon or require any party or person to make any submission whatsoever. However, if they wish to do so, we will hear them now. SUBMISSION TAKEN AND THEN ADJOURNED FOR FURTHER LISTING AFTER POSSIBLE RECEIPT OF WRITTEN SUBMISSIONS. ________________ 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.