Industrial Relations Commission of New South Wales CITATION: New South Wales Fire Brigades and New South Wales Fire Brigade Employees' Union [2008] NSWIRComm 60 NOTIFIER: New South Wales Fire Brigades PARTIES: RESPONDENT: New South Wales Fire Brigade Employees' Union FILE NUMBER(S): IRC 422 of 2008 CORAM: Boland J CATCHWORDS: Industrial dispute - Bans imposed by Union on relieving work resulting in significant overtime cost to employer over weekend - Bans in protest at promulgation by employer of a policy concerning suitable duties for injured retained firefighters - Commission recommended immediate lifting of bans and suspension of policy until further conciliation had taken place - Recommendation not implemented by Union - Reason given for not lifting of bans was that Union Secretary was only official with authority to lift bans and Secretary not contactable over weekend - Dispute orders made - Directions given for filing of material - Matter to be arbitrated. LEGISLATION CITED: Industrial Relations Act 1996 ss 130, 134, 135, 136(1), 137, 137(1)(a), 163 Workplace Injury Management and Workers' Compensation Act 1998 HEARING DATES: 29/03/08, 30/03/08 DATE OF JUDGMENT: 30 March 2008 NOTIFIER: Mr M J Easton of Counsel Ms J M Duncan LEGAL REPRESENTATIVES: RESPONDENT: Mr M Reilly Mr Broadhurst JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J 30 March 2008 Matter No IRC 422 of 2008 Notification under section 130 of the Industrial Relations Act 1996 by New South Wales Fire Brigades of a dispute with New South Wales Fire Brigade Employees Union re bans on relieving work DECISION (Extempore) [2008] NSWIRComm 60 1 On 28 March 2008, the NSW Fire Brigades notified the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 involving the Fire Brigades Employees' Union ('FBEU') and its members. The dispute related to a policy issued on 28 March 2008 by the Brigades concerning the provision of suitable duties for injured retained firefighters. The FBEU responded to the issuing of the policy by imposing bans on relieving or out-duties by permanent firefighters. 2 The Commission arranged for an urgent hearing of the dispute, which was held on Saturday, 29 March. After hearing the parties the Commission made a Recommendation pursuant to s 134 of the Act in the following terms: (1) The FBEU will take steps to ensure an immediate lifting of the ban; (2) The implementation of the policy issued on 28 March 2008 regarding suitable duties for injured retained firefighters will be suspended until the Commission has heard further from the parties at 9.00 am on Monday 31 March 2008. 3 The Commission also stated that: Mr Reilly [for the FBEU] indicated to the Commission that he would take every reasonably practicable step to ensure the Recommendation was communicated to the relevant officers of the Union. My expectation is that the ban will be lifted immediately. If that does not occur, the Brigades is given liberty to make an urgent application for relisting of the matter when the Commission will consider an application for dispute orders. 4 The Commission was advised late in the afternoon of Saturday 28 March that the bans on relieving or out-duties had not been lifted in accordance with the Commission's Recommendation. The parties were notified that the matter would be re-listed before the Commission at 9.30 am Sunday 30 March. The FBEU was advised that in light of the foreshadowing by the Fire Brigades that it would seek dispute orders that the Union should be properly represented. 5 In the proceedings on 30 March Mr Reilly and Mr Broadhurst, the Union's Junior Vice-President, appeared for the FBEU. Mr Easton of counsel for the Fire Brigades pressed the application for the issuing of dispute orders. Mr Broadhurst indicated that the Secretary of the union, Mr Flynn, was the only officer with the authority to lift the bans was unable to be contacted, thus the ban remained in place. Mr Broadhurst also indicated that neither he nor Mr Reilly were in a position to engage in talks to resolve the dispute over the policy relating to injured retained firefighters. 6 In the circumstances, it was evident that conciliation was not going to resolve the dispute. The Commission took the view that it should issue a certificate of attempted conciliation because reasonable attempts have been made to resolve the industrial dispute by conciliation and the industrial action being undertaken by the FBEU necessitated the exercise of the Commission's arbitral powers. Consequently, the Commission issued a certificate and provided copies to the parties and sent a copy to the Acting President: see s 135 of the Act. 7 The Fire Brigades has sought orders under s 137(1)(a) of the Act, which is in the following terms: (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. 8 The dispute relates to the issuance on 28 March 2008 of a policy by the Fire Brigades concerning the provision of suitable duties for retained firefighters. The Fire Brigades stated that the policy was necessary to satisfy the requirements of the Workplace Injury Management and Workers' Compensation Act 1998. 9 According to an affidavit of Mark Maxwell Brown, Director Regional Operations for the Brigades, he developed a draft policy and emailed it on 9 November 2007 to a senior organiser of the union that Mr Brown understood generally dealt with matters relating to retained firefighters. When he had received no response he followed the matter up in November 2007 and February 2008 requesting the Union to review the draft policy and provide any comments. Still Mr Brown received no response. 10 Mr Brown then drafted a letter dated 12 March 2008 to the Secretary of the Union indicating that it was the Brigades' intention to publish the policy in "In Orders" on 28 March 2008. No response was received from the Union. At about 4.30 pm on 27 March Mr Brown was contacted by the Brigades' Assistant Director Operational Personnel. The Assistant Director informed Mr Brown that representatives had contacted him in relation to the proposed "In Order". Consequently, Mr Brown telephoned the Union at approximately 4.45 pm on 27 March 2008 and discussed the "In Order". Mr Brown indicated in his affidavit that the Union representatives he spoke to had some concerns, but the concerns were not specific and that he did not consider they were sufficient to delay publication of the policy. 11 At 8.28 am on 28 March, Mr Brown sent an email to the Secretary of the FBEU stating that there was no significant reason to delay the introduction of the retained suitable duties "In Order" and that if the Secretary had any specific concerns that he should contact Mr Brown. At about 2.30 pm on 28 March, Mr Brown read an email from the Secretary of the Union requesting that the policy not be published. Mr Brown responded at 3.16 pm stating that the "In Order" had been published and that if the Secretary wished to discuss the matter he should contact Mr Brown. 12 By a notice issued out of the FBEU on 28 March 2008 the FBEU instructed its permanent firefighter members acting in a relief capacity to return to their base station as from 1800 hours that day where they were to remain until further notice. The impact of the ban is that the positions that were being filled by the relieving employees would have to be back-filled by recalling off-duty employees on overtime. 13 The Commission was advised that overtime costs are typically between $30,000 - $50,000 per shift. There are two shifts per day. From the time of imposition of the bans and up to an including 31 March 2008 the costs of the overtime were likely to be in the vicinity of $250,000 - $300,000. 14 In making the Recommendation that it did on 29 March the Commission intended that the policy concerning injured retained firefighters was removed - at least until the Commission had taken a proper opportunity to attempt to resolve the dispute - as the cause of the dispute. In other words, it was the Commission's intention to create a situation that existed prior to the policy being published. 15 Having removed the cause of the dispute the Commission had a realistic expectation that the FBEU would lift the ban it had imposed on relieving work on 28 March. That was not to be so. The reasons for the refusal by the FBEU to lift the ban on relieving work lack any substance and its refusal is completely unreasonable. That the Secretary of a Union with a membership base in a critical emergency service would make himself uncontactable over a weekend without delegating his authority to another official of the Union is bad enough. But in circumstances where a ban is imposed on work by firefighters late on a Friday evening and no one has been able to contact the Secretary, either from within his own Union or by representatives of the Fire Brigades, despite numerous attempts to do so by telephone, facsimile and email is, it seems to me, grossly irresponsible. 16 Pursuant to s 137 of the Industrial Relations Act 1996 I make the following orders: (1) The New South Wales Fire Brigade Employees Union ("the FBEU"), its officers, employees and members employed by the NSW Fire Brigades (on behalf of the Director Public Employment) are hereby directed to cease and refrain from taking industrial action in which they are currently engaged by no later than 6.00 pm on Sunday, 30 March 2008. (2) The FBEU its officers, employees and members employed by the NSW Fire Brigades (on behalf of the Director Public Employment) are hereby directed to cease and refrain from authorising, organising, supporting, encouraging or inciting any industrial action contrary to Order (1) hereof during the period from 6.00 pm on Sunday, 30 March 2008 to 6.00 pm Monday 30 June 2008. 17 Pursuant to s 136(1) and s 163 of the Industrial Relations Act I make the following directions: (1) The New South Wales Fire Brigade Employees Union ("the FBEU") and its officers, including Mr Reilly and Mr Broadhurst, are hereby directed to take all reasonable steps to ensure that the employees and the members of the FBEU comply with orders 1 and 2. That the Secretary of the Union is not able to be contacted is not acceptable as a reason as to why orders 1 and 2 cannot be complied with. (2) Service of orders (1) and (2) may be effected by sending a facsimile copy to the FBEU (029218 3488) by 2.00 pm on Sunday 30 March 2008. (3) The policy regarding suitable duties for injured retained firefighters will not be implemented until further direction of the Commission. (4) The FBEU shall file any material in support of its objection to the policy by 4.00 pm Monday 21 April 2008. (5) The NSW Fire Brigades shall file any material in support of the implementation of the policy by 4.00 pm Monday 12 May 2008. (6) The FBEU shall file any material in reply by Thursday 22 May 2008. (7) The dispute is listed for hearing by way of arbitration at 10.00 am on Wednesday 28 May 2008. __________________________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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