Industrial Relations Commission of New South Wales CITATION: Fire Brigades Employees' Union v Fire Brigades [2008] NSWIRComm 212 PARTIES: NSW Fire Brigade Employees' Union NSW Fire Brigades FILE NUMBER(S): IRC 1893 of 2007 CORAM: Grayson DP CATCHWORDS: Industrial Dispute - Return to suitable post-injury employment - Agreement reached in earlier compulsory conference proceedings - Agreement subject to certain conditions including provision of information re secondary employment in law firm - Implementation of agreed return to work frustrated by absence of such information - Allegation by employer of employee's failure to co-operate - Manifestation of such failure said to be refusal to provide details of secondary employment - Agreement to arbitrate limited question of whether any such failure to co-operate should negate or vitiate the agreement earlier reached - Held, evidence insufficient to demonstrate absence of good faith or co-operation - Simple matter made unnecessarily complex by quest for increasing particularity by employer and view on worker's part that information not relevant for employer's purpose - Need for arbitral proceedings would have been avoided if information sought in more reasonable manner and provided in more timely way - Post injury return to work arrangements should be collaborative and based on principle of open and transparent exchange of relevant information - Delay of almost twelve months in achieving return to work objective does not of itself release either party from obligations arising from earlier agreement - Employer's contention not made out - Agreement binding LEGISLATION CITED: Industrial Relations Act 1996 EXTEMPORE JUDGMENT DATE: 10 November 2008 Mr J Pearce, of counsel, for NSW Fire Brigades Employees' Union LEGAL REPRESENTATIVES: Mr D Davies, solicitor, Sparke Helmore Lawyers for NSW Fire Brigades JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson DP 10 November 2008 Matter No IRC 1893 of 2007 Dispute between FBEU & NSW Fire Brigades re cl 13.1 of award - Assessment of entitlement to benefits Notification under section 130 by New South Wales Fire Brigade Employees Union of a dispute with NSW Fire Brigades re clause 13.1 of award - Assessment of Entitlement to Benefits EX TEMPORE DECISION [2008] NSWIRComm 212 1 The limited question before the Commission, in the course of these protracted proceedings is whether any failure on the applicant's part, that is on Mr Collin's part, to co-operate in his return to suitable post-injury employment should negate or vitiate the agreement reached between the parties in compulsory conference proceedings before Backman J as duty judge on 19 December 2007. There is an extensive volume of material which has been tendered and relied upon in evidence detailing what one might observe is a regrettable history of correspondence and email and other exchanges between the parties and demonstrating how a simple matter may, albeit inadvertently and for notionally respectable reasons, be made unnecessarily complex. 2 The simple matter is this. There are certain questions posed in a letter which was handed to the Fire Brigade Employees' Union by the New South Wales Fire Brigades at the outset of proceedings before Backman J on 19 December 2007 the responses to which formed the basis of the agreement ultimately reached that day. That letter sought particulars of the so called secondary employment which Fire Fighter Collins had been undertaking and, as I understand it, continues to undertake with the law firm Colin Biggers & Paisley. 3 The evidence, tested thoroughly in cross-examination, of numerous witnesses throughout the course of today does not give rise, as I am disposed, to a demonstrated absence of good faith or co-operation on either side. As I said, it seems to me to be an exercise in making a relatively simple matter unnecessarily complex. It is inappropriate for the Commission to find blame on either side and I make no pejorative finding in that regard in the hope that it will facilitate the ultimate resolution of this dispute. Each party appears, for its own reasons, to have taken a view that information sought in increasing particularity by the employer was on the one hand necessary for the fulfilment of the agreement reached on 19 December 2007 or on the workers' part not relevant for the employer's purposes. Much of that ongoing tension may on balance have been because the information sought initially on 19 December 2007 should have been more readily forthcoming in a timely way but was not. Had it been sought in a more reasonable manner and provided in a more timely way there is little doubt that the need for these arbitral proceedings would have been avoided. 4 It is inappropriate in all the circumstances and in the interests of furthering the objectives of maximising return to work prospects following work related injury for the matter to occupy the parties' time or the Commission's time any further. The finding I make on the evidence is therefore against the proposition for which the employer contends, but only in the limited sense that it stops short of finding that Fire Fighter Collins has failed to co-operate in his return to suitable employment. Perhaps before leaving the matter it should be observed that return to work arrangements in the interests of minimising the impact of work-related injury should in every sense be collaborative arrangements based on a willingness on both sides to openly and transparently exchange relevant information and do other things such as ergonomic assessments and so on as are necessary to facilitate such return to work arrangements. I do not consider that the delay of almost twelve months in this case in achieving that objective releases either party from their obligations arising from the agreement reached on 19 December 2007. 5 It seems to me the next step, without delay, should be that the parties will convene a return to work meeting at which those questions posed in the letter of 19 December 2007 will be answered orally or in writing by Fire Fighter Collins and immediately thereafter an appropriate return to work arrangement should be made. 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.