Industrial Relations Commission of New South Wales CITATION: NSW FBEU v Director of Public Employment by her agent the Commissioner of NSW Fire Brigades (No. 2) [2008] NSWIRComm 7 PARTIES: NSW Fire Brigade Employees Union Director of Public Employment by her agent the Commissioner of NSW Fire Brigades FILE NUMBER(S): 166 of 2007 CORAM: Grayson DP CATCHWORDS: Industrial dispute - Award interpretation - First instance determination appealed - Employer application to bring fresh evidence - Full Bench proceedings adjourned to enable application to re-open first instance proceedings - Leave granted - Fresh evidence called - Fresh evidence not such as to advance proposition for which employer contends - First instance determination confirmed - Order made giving effect to first instance determination LEGISLATION CITED: Industrial Relations Act 1996 Fire Brigade Employees (State) Award Matter No. 170 of 1978 - Industrial Commission of NSW, 3 November 1978 CASES CITED: Fire Brigade Station Officers (State) Award and Fire Brigade Employees (State) Award - Matter Nos. 225 and 226 of 1975 - Industrial Commission of NSW, 7 August 1975 NSW Fire Brigades Employees Union v NSW Fire Brigades (No. 1) [2007] NSWIRComm 128 HEARING DATES: 15 November 2007 14 December 2007 DATE OF JUDGMENT: 4 February 2008 Mr J Nolan of counsel for the NSW Fire Brigade Employees Union LEGAL REPRESENTATIVES: Ms T Anderson of counsel for the Director of Employment by her agent the Commissioner of NSW Fire Brigades JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 4 February 2008 Matter No IRC 166 of 2007 Dispute FBEU & NSW Fire Brigades re non-payment of overtime to member Notification under section 130 by New South Wales Fire Brigade Employees Union of a dispute with New South Wales Fire Brigades re non payment of overtime to member DECISION [2008] NSWIRComm 7 1 On 1 June 2007, the Commission as presently constituted published a decision the effect of which was to determine that the proper construction of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award was that for which the notifying union contended (see NSW Fire Brigades Employees Union v NSW Fire Brigades [2007] NSWIRComm 128). 2 The respondent to those proceedings (the Director of Public Employment by her agent the Commissioner of NSW Fire Brigades) filed an application for leave to appeal and appeal against the decision and that matter came before the Full Bench of the Commission on 20 August 2007 (Matter No. IRC 1056 of 2007). 3 In addition to seeking leave to appeal the employer also made application for leave to call fresh evidence pursuant to s 191 (2) of the Industrial Relations Act 1996. After hearing submissions and some of the fresh evidence, those proceedings were adjourned by the Full Bench on the basis set out by the presiding Member in the following extract of transcript:- WALTON J A-P - In the circumstances we shall adjourn the proceedings until his Honour, Deputy President Grayson, has dealt with the further application intended to be put by the present appellant, namely, that the proceedings presently before him yet to be the subject of the making of an order for the purposes of s 175 of the Act would be reopened for the purpose of considering any other relevant matters raised by the appellant, presumably including the matters that have now been raised afresh on the appeal. We consider that the adjournment should be granted so as to permit that opportunity. There is plainly a basis upon which the proceedings at first instance may be reopened in all the circumstances and as a matter of discretion we can presently see no reason why that step might not be taken by the Deputy President; if his Honour is minded to reopen the proceedings and make a further determination accordingly; then in that event we would stand those proceedings over until that determination was made and the parties report that fact to us and the consequences that may have to the appeal. If his Honour refuses to reopen the proceedings and thereby they are concluded; then we reserve fully rights of the parties to agitate further any of the submissions they presently advance on the appeal or further matters arising or to give consideration to the other proceedings which may obviate the need for appeal to be proceeded with in due course. Ms Anderson, it would be of some assistance to inform me when the Deputy President makes a decision at the requisite time, even if for example it decides to reopen, then some advice to that effect would be sent to my Chambers so necessary adjustments can be made to the file to reflect that. And, in any event, you have liberty to reopen these proceedings if that is required. We should indicate that nothing that has fallen from us in relation to the question of reopening has any bearing on the determination of the issues raised on this appeal. We simply noted that there is a proper basis upon which his Honour may take that step at first instance. 4 Having returned to me on the basis set out above, the matter now proceeds on the employer's application to re-open its first instance case and if successful in that regard, to move the Commission by additional evidence and argument to a different result than that which occurred on 1 June 2007. 5 As to the question of leave to re-open and having regard to the competing contentions of the parties, I am guided by the observations of the Full Bench that there is no discernable reason why that step might not be taken and I note in that regard, the union's reliance here upon submissions made to the Full Bench on the issue of fresh evidence. In saying that, I note also the evidence of the employer's senior industrial officer, Mr Stuart James Henderson, as to efforts made in the period leading up to the hearing before me to create a more complete historical picture of the disputed award provision which until the proceedings before me, had operated in successive Fire Brigades awards for almost thirty years (see [8] of [2007] NSWIRComm 128). Mr Henderson's evidence which was before the Full Bench when the observations by which I am guided were made, goes directly to the question whether evidence now sought to be relied upon by the employer, was discoverable with reasonable diligence for use in the first instance proceedings. I grant leave to re-open accordingly. 6 In addition to the evidence of Mr Henderson the employer relies upon the affidavit evidence of:- · Mr Alfred Charles McGRATH · Mr Paul Vincent BAILEY · Mr Marcus Gilbert BAKER none of whom were required for cross-examination. 7 Mr McGrath deposed to forty-six years of service with the employer and its predecessors having retired in 1995 from the position of Director, Human Resources and Administration. His evidence usefully traced the history of rostering systems within the NSW Fire Brigades going back to the Standard Roster which was introduced in 1955 when a forty hour week was awarded to firefighters. 8 The Standard Roster was replaced in 1975 by the so-called 10/14 Roster which provided for day shifts of ten hours duration and night shifts of fourteen hours duration and further, which was imposed on an unwilling employer by order of the Commission on the contested application of the FBEU (see Fire Brigade Station Officers (State) Award and Fire Brigade Employees (State) Award - Matter Nos. 225 and 226 of 1975 per Cahill J - Industrial Commission of NSW, 7 August 1975). 9 One of the difficulties with the 10/14 Roster which was identified by the employer in opposing its introduction in 1975 was the limitation in the employer's capacity to fill gaps in manning levels caused by unexpected short-notice absences. Cahill J set the parties the task of reaching agreement as to how this difficulty might be overcome failing which and by way of supplementary judgment on 8 October 1975 his Honour determined the matter in favour of the FBEU proposal as follows:- The method proposed by the union is that, in each of the six districts within the Sydney Fire District, separate rosters be drawn up of firemen and station officers having regard to days rostered off duty. On occasions specified in the roster, on the second and third days off duty in the 96 hour break, employees would be obliged to enquire by telephone at change of shift times whether they were needed to work overtime on the shift then commencing. If so, they would report on that shift for overtime duty of eight hours, with employees on the offgoing shift remaining on duty until relieved. and later:- In the circumstances, I make a ruling and decision that, upon the introduction of the 10/14 roster system, the proposals of the Board in relation to stations in the Sydney Fire District concerning authorised strengths, operational minima and the relief of station officers by firemen should not be implemented; and that the proposals of the union designed to cover short-notice absences of firemen and station officers should apply, subject to the modification already mentioned concerning the number of station officers required to telephone and such other modifications as are agreed by the parties. 10 Importantly, as I am disposed and as Mr Nolan submitted, the above extract from his Honour's supplementary judgment reveals that the arrangement contemplated for off duty firefighters who were recalled to cover unexpected absences was that "they would report on that shift for overtime duty of eight hours". 11 According to Mr McGrath's evidence, however, during the early days of the 10/14 Roster, there were examples of off duty firefighters being recalled to duty to cover an unexpected absence only to find that shortly after coming on duty they would be dismissed from duty. This was inconsistent with the spirit of the Recall Roster which was that off duty firefighters who were recalled to work to cover staff shortages would have an expectation that they were being recalled to duty (at overtime rates) for the remainder of the vacated shift. 12 Consequently and plainly by way of compromise, the FBEU sought to have firefighters guaranteed a minimum of four hours pay at overtime rates when they were recalled to duty in accordance with the Recall Roster. With the employer's consent, the Fire Brigade Employees (State) Award was varied on 3 November 1978 (see Fire Brigade Employees (State) Award - Matter No. 170 of 1978 per Conciliation Commissioner Dunn - Industrial Commission of NSW, 3 November 1978) to give effect to that arrangement and it is that seemingly simple yet now controversial provision which has been replicated in successive firefighting awards up to the present time. The provision is as follows:- 9.6 Recall to Maintain Required Staffing Levels 9.6.1 An employees off duty who is required to report for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates. 13 I observe at this point after careful scrutiny of the history provided by Mr McGrath including the judgments of Cahill J in 1975 and the 1978 transcript of proceedings before Mr Conciliation Commissioner Dunn that nowhere can I see any conclusion, express or implied, or any part of the Commission's reasoning which disentitles a recalled firefighter to the minimum four hours pay at overtime rates merely because the recall abuts a normal rostered shift for that firefighter. 14 That is the nub of the proposition for which the employer contends and with every respect, I am unable to see how that proposition is advanced by the fresh evidence now relied upon. Having said that, the cost implication of paying recalled firefighters a minimum of four hours at overtime rates is not lost upon the me and this is the issue to which Commander Bailey's evidence goes. It must be borne in mind, however, if the award construction for which the FBEU contends - that is, the interpretation determined by the Commission in [2007] NSWIRComm 128 be the proper construction, firstly, that the employer has been legally liable for it since the inception of the provision in 1978 and secondly, that the four hours overtime provision, on the face of it, as directed at replacing the expectation of a more costly eight hours overtime as contemplated by Cahill J in his supplementary judgment extracted at [9] above. 15 The issue of whether a recalled firefighter would be denied the benefit of the four hour overtime provision because the recall abuts a normal rostered shift does not appear on the evidence to have been a feature of those earlier proceedings and doing the best I can having regard to the competing contentions, I fail to see how that issue can now be imported into those earlier proceedings and hence, into the task of construing the disputed award provision. 16 Furthermore, the "mischief" towards which the provision was and is directed, is that without the provision the firefighter who answers the call to cover a short-notice absence may be dismissed from duty shortly after coming in without proper recompense for the social or personal disruption caused by the recall. It is, as was said at [28] of the first instance decision, the quality of the uncontemplated and unexpected that marks the recall and it is not to the point that the recall abuts a normal rostered shift of for that matter as was the focus of attention in 1978, that it may require a recalled firefighter to work a full overtime shift. Rather, it is the premium placed on that which is extra to the arrangement generally between the employer and the employee which grounds the award provision. 17 As to the concerns raised by Acting Chief Superintendent Baker regarding the effect of the Commission's decision on the taking of consolidated leave I agree with Mr Nolan that nothing is thereby added to the task of award interpretation and if there is a need to revisit the relevant In Order governing the taking of consolidated leave then that is with respect, an administrative matter for the Commissioner. It may well be, however without expressing a concluded view about it in the absence of evidence and argument, that the FBEU would have difficulty insisting that consolidated leave should be routinely approved in one hour or two hour blocks as the present In Order stipulates, if the end result is that one or two hour absences can only be covered by recalling otherwise off duty firefighters and paying those firefighters four hours pay at overtime rates. 18 In all the circumstances and after careful consideration of the fresh evidence and competing contentions I am not persuaded to depart from the determination made on 1 June 2007 in [2007] NSWIRComm 128. 19 Accordingly I confirm that determination and order pursuant to section 175 of the Act that the determination be given effect. 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.