New South Wales Fire Brigade Employees Union and Fire and Rescue NSW on behalf of the Director Public Employment [2012] NSWIRComm 1002

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Fire Brigade Employees Union and Fire and Rescue NSW on behalf of the Director Public Employment [2012] NSWIRComm 1002 Hearing dates: 27 February 2012 Decision date: 27 February 2012 Jurisdiction: Industrial Relations Commission Before: Marks J Kavanagh J Commissioner Stanton Decision: There is no public interest in the grant of leave to appeal and we decline to grant leave. Catchwords: DISPUTE ORDERS - dispute orders made by Commissioner under s139 of Industrial Relations Act 1996 to lift work bans - appellant seeks leave to appeal - exercise of discretion appropriate and did not miscarry - the requirement to provide reasons - reasons do not need to be lengthy or elaborate - no public interest in grant of leave - leave to appeal not granted Legislation Cited: Industrial Relations Act 1996 - s137(1)(a), s139 Cases Cited: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Category: Principal judgment Parties: New South Wales Fire Brigade Employees' Union (Appellant) Fire and Rescue NSW (Respondent) Representation: Mr J Nolan of counsel (Appellant) Mr R Reitano of counsel (Respondent) NSW FBEU (Appellant) Fire and Rescue NSW (Respondent) File Number(s): IRC 1730 of 2011 Decision under appeal Date of Decision: 2011-10-21 00:00:00 Before: Ritchie C File Number(s): IRC 1631 of 2011

decision (ex tempore) 1In these proceedings the appellant seeks leave to appeal and to appeal from a decision of Commissioner Ritchie given on 21 October 2011. The Commissioner made dispute orders under section 139 of the Industrial Relations Act 1996 ("the Act"). 2It seems there was a longstanding dispute between the appellant union and the New South Wales Fire Brigade concerning the manning and rostering of persons using logistic support vehicles. By memorandum dated 20 October 2011 Mr Jim Casey, the state secretary of the union, instructed members not to perform certain work. On the same day the employer, then known as Fire and Rescue NSW, notified a dispute to the Commission seeking an urgent hearing because of the placement of work bans. 3The dispute notification came on before the Vice President, Walton J, later that day. It appears his Honour made a number of recommendations as part of a conciliation process including the immediate lifting of the bans imposed by the union. Later that day Fire and Rescue New South Wales filed a notice of motion seeking the making of dispute orders under section 137(1)(a) of the Act because, at the time of doing so, the bans had not been lifted as recommended by the Vice President. 4We should add that the Vice President had indicated that the further hearing of the matter would be dealt with before the Commission on the following Monday, 24 October 2011. 5The notice of motion came on for hearing before Commissioner Ritchie in Newcastle on 21 October 2011. The Commissioner endeavoured to conciliate the matter, but without success. He then conducted arbitration proceedings during the course of which he was addressed at length by representatives of both parties. Certain documentary material was tendered into evidence, and oral evidence was given on behalf of Fire and Rescue NSW by Mark Maxwell Brown, an Assistant Commissioner. He was cross-examined at some length by the union's representative. 6The union's submissions were predominantly directed to an alleged breach by Fire and Rescue NSW of an agreement reached in 2010 concerning the manning of the logistic support vehicles. The union offered to withdraw all bans provided Fire and Rescue NSW withdrew its action, allegedly in breach of the agreement previously made. 7At the conclusion of the hearing, and after a short break, the Commissioner delivered his reasons and made the orders that are the subject of the application for leave to appeal. After reciting in summary form the background to the proceedings, the Commissioner said: If the respondent believed there had been a breach of an agreement and it was not satisfied with the actions of the applicant, then it should have notified the dispute with the Commission. This, it did not do. I accept the submission of the respondent with respect of the breadth of the proposed orders and their duration. 8The appellant submits Commissioner Ritchie failed to address "the essential elements of the matters" which came before him and failed to give adequate "intelligible and readily understood" reasons. The appellant submitted that on the merits Commissioner Ritchie should have accepted its undertaking to lift all bans and limitations immediately upon the giving of an undertaking by Fire and Rescue NSW that it would "abide by the agreement, the breach of which had given rise to the dispute ... .". 9The Commissioner dealt with the underlying merits of the proceedings succinctly. The parties clearly understood that the bans were imposed in response to an argument that the employer had breached an agreement made with the union. However, that breach was not acknowledged by Fire and Rescue NSW. The matter before the Commissioner was the imposition of the bans. The underlying dispute between the parties was listed by the Commission for the next hearing day, namely, 24 October 2011. Information given to Commissioner Ritchie was to the effect that the Fire and Rescue NSW Commissioner was prepared to enter into discussions with the union about the underlying issue but only once the bans had been lifted. 10The determination as to whether or not to issue dispute orders involves the exercise of a discretion. The Commissioner exercised his discretion in an appropriate way, and we find that the exercise of his discretion did not miscarry. The Commissioner was not obliged to give lengthy or elaborate reasons for his decision and orders. See Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 and the well-known passages in the judgments of Mahoney JA and McHugh JA cited therein. 11Even though the Commissioner's reasoning was stated succinctly, there could be no doubt in anyone's mind that the Commissioner had determined to require that the bans be lifted before the underlying industrial dispute was dealt with. Any argument that the Commissioner had not given adequate and cogent reasons must fall away. Given the circumstances of an industrial dispute of this kind, there is no public interest in the grant of leave to appeal and we decline to grant leave.