The Australian Workers' Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133

Industrial Relations Commission New South Wales Medium Neutral Citation: The Australian Workers' Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133 Hearing dates: 9 and 16 November 2012 Decision date: 29 November 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court orders and declares pursuant to s 154 of the Industrial Relations Act 1996 that: (1) Persons employed by the Government of New South Wales who perform firefighting duties (as defined in order (2)) as part of their work for the Department of Premier and Cabinet, Office of Environment and Heritage or Department of Trade and Investment, Regional Infrastructure and Services, Forestry Commission of NSW Trading As Forests NSW (and any of their successor entities) and whose employment is covered by: (a) the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award; (b) the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Forests NSW - Forestry Field Officers Award; (c) the Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007; (d) the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Professional Officers Award; (e) the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award; (f) the Office of Environment and Heritage (NSW) Flight Officers' Enterprise Agreement 2012; or (g) the Forestry Commission Division Trading As Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012; and any successor instruments ("the Employees") are "firefighters" for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987, provided that the Employees are only "firefighters" for such purposes whilst they are performing firefighting duties in accordance with orders (2) and (3) hereof. (2) For the purposes of order (1) hereof "firefighting duties" are those duties performed by the Employees who are trained, medically fit and qualified by the relevant agency as a firefighter, such duties being: (a) any reasonable act or operation performed by a firefighter either within or outside normal working hours at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or any other way necessarily associated with the fire, and includes: (i) travel to and from the fire whether by road, air or on foot, surveillance of a running fire, mop-up (including logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment in an active fire ground); (ii) aerial attack; (iii) application of chemical fire retardants and foams; and (iv) office duty performed directly in connection with the organisation and direction of the firefighting effort. (b) duties performed either within or outside normal working hours in connection with tasks necessary to prevent or reduce the risk of fire (including travel to and from the site at which the duties are to be performed), such duties being: (i) hazard reduction including burning, felling trees, fire trail maintenance and the creation of fire barriers using machinery or hand tools, use of aircraft to drop incendiary devices; and (ii) fire stand by duty and fire detection (both fire tower operation and mobile fire patrol). (3) Employees referred to in order (1) are firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987, following receipt by them of advice from an authorised person that they are to undertake firefighting duties (as defined in order (2)) and immediately upon the Employees commencing to do so. The Employees shall cease to be firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987 following advice to them from an authorised person that firefighting duties (as defined in order (2)) are no longer required and immediately upon the Employees ceasing to perform firefighting duties. Catchwords: DECLARATORY RELIEF - Applications by Unions that certain employees employed in the Government Service in the Forestry Commission and National Parks and Wildlife be declared firefighters for the purposes of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987- Whether the Industrial Court had jurisdiction to grant the relief sought - "Industrial dispute" - "Industrial matter" - Consideration of Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 - STATUTORY INTERPRETATION - Principles - Purpose of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987 - Meaning of "firefighter" - Meaning of "firefighting duties" - Whether employees whose designated occupation is not that of firefighter but who perform firefighting duties as required are firefighters for the purposes of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987 - Orders made Legislation Cited: Fire Brigades Act 1989 Industrial Relations Act 1996 Industrial Relations Act 1979 (WA) Industrial Relations Act 1988 (Cth) Police Act 1990 Police Regulation (Superannuation) Act 1906 Rural Fires Act 1997 Workers Compensation Act 1987 Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998 Workplace Relations Act 1996 (Cth) Cases Cited: A v Commission for Children and Young People [2001] NSWIRComm 194; (2001) 107 IR 211 Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908; (2005) 143 FCR 409 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647 Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 Carricks Ltd v Pizzaro (1995) 38 NSWLR 274 Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121 Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111; (2011) 209 IR 49 Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 HSU east and Director-General, Department of Finance and Services [2012] NSWIRComm 112 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz [1945] HCA 50; (1945) 70 CLR 141 Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25; (1991) 173 CLR 78 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133 Tristar Steering & Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95; (2007) 159 FCR 274 Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; (2001) 109 IR 359 Texts Cited: Macquarie Concise Dictionary (Third Edition) Category: Principal judgment Parties: The Australian Workers' Union, New South Wales (Applicant in IRC2012/1076) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant in IRC2012/1106) Department of Premier and Cabinet (Respondent in both matters) Office of Environment and Heritage (Respondent in both matters) Department of Trade and Investment, Regional Infrastructure and Services, Forestry Commission Division trading as Forests NSW (Respondent in both matters) Representation: Mr A Hatcher SC (Applicant in IRC2012/1076) Mr M Gibian of counsel (Applicant in IRC2012/1106) Mr S Benson of counsel (Respondents) The Australian Workers' Union, New South Wales (Applicant in IRC2012/1076) W G McNally Jones Staff, Lawyers (Applicant in IRC2012/1106) Crown Solicitor's Office (Respondents) File Number(s): IRC 1076 and 1106 of 2012