Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2020] NSWIRComm 1002 Hearing dates: 13 December 2019 Date of orders: 14 January 2020 Decision date: 14 January 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. I determine that: (1) cl 36 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 applies to the circumstances of this case; and (2) pursuant to cl 36.7 of that award there can be no implementation of the change anticipated by In Order 2019/20 until the Commission has determined the substantive matter before it in these proceedings, subject to further order of the Commission. 2. Fire and Rescue NSW is directed not to implement In Order 2019/20 in so far as it departs from the practices and procedures prescribed by In Order 2008/22, subject to further order of the Commission. 3. The Motion is otherwise dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – proposed implementation of new procedures – whether such implementation is "organisational change" for the purposes of the relevant awards – whether dispute resolution procedures require maintenance of status quo pending determination of the dispute Legislation Cited: Fire and Rescue Act 1989 (NSW) s 5A(1) Fire Brigades Regulation 2014 (NSW) reg 4 Industrial Relations Act 1996 (NSW) ss 8, 84, 87(7), 130, 136(1)(a), 175 Cases Cited: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 Davis v Industrial Relations Secretary (on behalf of the NSW Rural Fire Service) [2019] NSWIRComm 1064 Texts Cited: Macquarie Dictionary Category: Procedural and other rulings Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Industrial Relations Secretary on behalf of Fire and Rescue NSW (Respondent) Representation: Counsel: L Saunders (Notifier) D Baran (Respondent) Solicitors: People & Culture Directorate, Fire & Rescue NSW (Respondent) File Number(s): 2019/315187 Publication restriction: Nil Judgment 1. Under s 5A(1) of the Fire and Rescue NSW Act 1989 (NSW) the Commissioner of Fire and Rescue NSW ("FRNSW") is charged with the duty to, amongst other things, " take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district". 2. Regulation 4 of the Fire Brigades Regulation 2014 (NSW) provides as follows: 4 Commissioner's Orders (1) The Commissioner may, by order in writing, issue, amend or revoke instructions with respect to the efficiency, discipline and good conduct of firefighters. (2) The instructions may be published under the title of "In Orders" or "Standing Orders". (3) The Commissioner must take steps to ensure that all current In Orders and Standing Orders are brought to the attention of all firefighters. 1. On 17 October 2008 the then Acting Commissioner of Fire and Rescue NSW ("FRNSW") published In Order 2008/22. The document was titled "Retained firefighter response coverage and crewing levels". Amongst other things, the document mandated that: 1. sufficient retained staff would be available at all times to ensure that "a safe and effective minimum crew of four firefighters will respond to calls"; 2. while a "pumper" (what the person in the street would see as a "fire truck") could respond to a call with a minimum crew of two, they must not engage in offensive firefighting operations before at least four firefighters have arrived on scene; 3. other than for certain nominated stations, retained stations "must maintain a safe and effective minimum crew of four firefighters for the station pumper at all times". The In Orders set out a process to address a situation where there were insufficient staff at a particular retained station, which included attempting to call in retained firefighters attached to that station; offering the work to surplus retained or permanent firefighters from nearby stations; "moving up" appliances or crew from another station; or, recalling off-duty permanent firefighters; and 4. certain identified stations would not automatically require crew supplementation. Subject to certain conditions, if at those stations firefighter availability fell below four, the station could be "taken off line", or "TOLed" as it was referred to by the parties, until full crewing from within the station complement was again available. 1. On 9 October 2019 the Acting Commissioner of FRNSW published a document titled "Commissioner's Orders 2019/20" ("In Order 2019/20"). Amongst other things, In Order 2019/20 purported to rescind and replace In Order 2008/22. 2. In Order 2019/20 sought to replace In Order 2008/22 with what might be described as a more agile, risk-management approach to the allocation of staff and appliances across the FRNSW network. The new approach is reflected in the following extract from In Order 2019/20: "Duty, Zone and Area Commanders, in close consultation with the Response Coordinator, are responsible for managing the availability and movement of appliances across the network, including staffing of appliances. Further, in cases of limited staff availability, the Area Commander, in consultation with Duty & Zone Commanders, will also determine on a risk basis whether an appliance and crew are required to form part of the FRNSW immediate operational response network. In doing so consider factors such as, but not limited to: • The impact and/or duration of the staff shortage(s); • The time of day/night, such as school hours; • Weather forecast conditions; • Any current operational activities which have local risks or impact on response; • The availability of staff and appliances across the overall network; and • The necessity or otherwise of postponing activities, (for example Station Forums). If, following the risk analysis it is deemed necessary to cover that particular area of the network, then consider options such as, but not limited to: • The move up of other appliances; • The use of available on-shift personnel; • The use of available retained or off duty permanent firefighters." 1. The term "appliances" when used in the In Orders should be construed in the context of the definition of "fire appliance" in reg 3 of the Fire Brigades Regulation, as follows: fire appliance means any vehicle that forms part of the equipment of Fire and Rescue NSW and that is equipped with an audible warning device and flashing lights. 1. On 9 October 2019 the Fire Brigade Employees' Union of New South Wales ("FBEU") notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW). The FBEU's notification described the "question, dispute or difficulty" in these terms: "The FBEU is seeking an urgent listing of this matter because of action taken today to publish In-Order 2019/20 rescinding In-Order 2008/22. In-Order 2008/22 is multifaceted and regulates staffing, resource allocation and what stations can be taken off-line (TOLing). Rescinding In-Order 2008/22 will result in multiple organisational changes and will detrimentally impact the work of firefighters. It will compromise their safety and the safety of the community. The FBEU requested that the In-Orders not be published to continue discussions, however despite this request Fire and Rescue NSW published. …" (Emphasis in original) 1. The employees represented by the FBEU in these proceedings fall under one of two awards, namely the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 ("Permanent Award") and the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2017 ("Retained Award"). 2. Relevantly for present purposes, cll 35 and 36 of the Permanent Award provide as follows: 35. Disputes Avoidance Procedures 35.1 Subject to the provisions of the Industrial Relations Act 1996, and Clause 36.2, and to enable claims, issues and disputes to be resolved while work proceeds normally, the following procedures are to apply. 35.2 Employee(s) and/or Union representatives will place the matter before the immediate supervisor. The immediate supervisor will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 35.3 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the next higher officer in charge of the relevant zone or region. That officer will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 35.4 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the Director Human Resources. The Director Human Resources will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 35.5 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the Commissioner. The claim, issue or dispute and all relevant circumstances relating to it will be fully reviewed by the Commissioner and the Union and all reasonable steps shall be taken in an attempt to resolve the matter. 35.6 No action is to be taken by the Union which would affect the Department's operations whilst a dispute is under investigation. 35.7 Failing agreement the claim, issue or dispute may be referred to the appropriate Industrial Tribunal. 36. Organisational Change under Subclause 36.2 36.1 This clause recognises the capacity of the Commissioner to make decisions to effect change within the Department. 36.2 36.2.1 This clause applies to consultation and decisions regarding clauses 4 (Definitions), clause 8 (Hours of Work), clause 13 (Progression and Promotion Provisions), clause 19 (Examination and Assessment Leave) and clause 39 (Drug and Alcohol Protocol), to the exclusion of the procedures under clause 35. 36.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Department's guidelines, policies and/or procedures for the management of employees' conduct or performance. 36.3 Prior to making any decision to effect change in the circumstances prescribed by subclause 36.2, the Commissioner must consult with the Union. 36.4 Consultation will commence with a written notification to the Union regarding the proposed change(s). Thereafter there will be a reasonable opportunity for the Union to present its views in relation to the proposed changes. 36.5 If, during the consultation process, there is a reasonable basis for the Commissioner to conclude that the consultation process has been exhausted, the Commissioner shall advise the Union accordingly and the following procedures shall then operate. 36.6. The Commissioner will notify the Union and the workforce affected by the proposed change of his/her decision in relation to the subject of the proposed change as well as the process and timetable for its implementation. 36.7 If the matter remains in dispute and is referred by the Union to the Industrial Relations Commission within 7 days of the notification of the decision under clause 36.6, there will be no implementation of the change until the Industrial Relations Commission determines the matter or orders otherwise. 36.8 The Union and the Commissioner shall be bound by any order or determination of the Industrial Relations Commission in relation to the dispute. 36.9 If Industrial action is engaged in at any stage in the operation of the process under this clause, then the prohibition on implementation under clause 36.7 ceases to operate. 36.10 The operation of this clause shall be reviewed at the end of one year from the date of its commencement, for the purpose of considering whether any amendments are appropriate. 1. Clauses 26 and 27 of the Retained Award are in the following terms: 26. Disputes Avoidance Procedures 26.1 Subject to the provisions of the Industrial Relations Act 1996, and Clause 27.2, and to enable claims, issues and disputes to be resolved while work proceeds normally, the following procedures are to apply. 26.2 Employee(s) and/or Union representatives will place the matter before the immediate supervisor. The immediate supervisor will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 26.3 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the next higher officer in charge of the relevant zone or region. That officer will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 26.4 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the Director Human Resources. The Director Human Resources will take all reasonable steps to reply to the employee(s) and/or Union representatives as soon as possible, and will at least provide a progress report before the close of ordinary business on the next working day. 26.5 Failing agreement, employee(s) and/or Union representatives will place the claim, issue or dispute before the Commissioner. The claim, issue or dispute and all relevant circumstances relating to it will be fully reviewed by the Commissioner and the Union and all reasonable steps shall be taken in an attempt to resolve the matter. 26.6 No action is to be taken by the Union which would affect the Department's operations whilst a dispute is under investigation. 26.7 Failing agreement the claim, issue or dispute may be referred to the appropriate Industrial Tribunal. 27. Organisational Change under Subclause 27.2 27.1. This clause recognises the capacity of the Commissioner to make decisions to effect change within the Department. 27.2 27.2.1 This clause applies to consultation and decisions regarding clause 24 (Training and Staff Development) and clause 30 (Alcohol and Other Drugs), to the exclusion of the procedures under clause 26. 27.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Procedural Guidelines specified in the Fire Brigades Amendment (Disciplinary Process) Regulation 2012, which amends Part 4 of the Fire Brigades Regulation 2008. 27.2.3 This clause also applies to any proposal by the Department which will result in, or is likely to result in, a substantial and ongoing reduction in the work collectively available to a brigade's employees. 27.3 Prior to making any decision to effect change under the specified clauses the Commissioner must consult with the Union. 27.4 Consultation will commence with a written notification to the Union regarding the proposed change(s). Thereafter there will be a reasonable opportunity for the Union to present its views in relation to the proposed changes. 27.5 If, during the consultation process, there is a reasonable basis for the Commissioner to conclude that the consultation process has been exhausted, the Commissioner shall advise the Union accordingly and the following procedures shall then operate. 27.6 The Commissioner will notify the Union and the workforce affected by the proposed change of his/her decision in relation to the subject of the proposed change as well as the process and timetable for its implementation. 27.7 If the matter remains in dispute and is referred by the Union to the Industrial Relations Commission within 7 days of the notification of the decision under clause 27.6, there will be no implementation of the change for a further 14 days from the date of notification, subject to any orders of the Industrial Relations Commission. 27.8 The Union and the Commissioner shall be bound by any order or determination of the Industrial Relations Commission in relation to the dispute. 27.9 If Industrial action is engaged in at any stage in the operation of the process under this clause, then the prohibition on implementation under clause 27.7 ceases to operate. 1. On 12 November 2019 the FBEU filed with the Office of the Industrial Registrar a notice of motion ("Motion"). In short, the FBEU sought determinations from the Commission pursuant to cl 36.8 of the Permanent Award and cl 27.8 of the Retained Award that FRNSW is prevented, until the matter is determined or the Commission orders otherwise, from implementing In Order 2019/20. In the alternative, the FBEU seeks a direction pursuant to cl 35.1 of the Permanent Award and cl 26.1 of the Retained Award that, in order to permit work to proceed normally while the dispute is resolved, FRNSW is not to implement In Order 2019/20 "in so far as it departs from the practices and procedures restricted by" In Order 2008/22. 2. FRNSW opposed the Motion. 3. The hearing of the Motion took place on 13 December 2019. The FBEU read affidavits of Robert Callow, a Station Officer at Cranebrook fire station, sworn on 29 November 2019 and of Harry Fisher, a Relieving Station Officer at Kogarah fire station, sworn on 28 November 2019. 4. FRNSW read an affidavit of John Andreallo, a Senior Strategist with FRNSW, sworn on 29 November 2019 and two affidavits of Robert John McNeil, the Assistant Commissioner Regional Operations for FRNSW, sworn on 29 November 2019 and 11 December 2019 respectively. 5. Each party also relied on reasonably comprehensive written submissions, supplemented by oral submissions during the hearing. In determining the Motion I have had regard to all of the evidence and submissions. 6. I further observe that on 9 November 2019 I conducted a hearing of a notice of motion filed by FRNSW seeking dispute orders in this matter. I have had some regard to the evidence filed in respect of that notice of motion in making this decision. 7. This decision is confined to the Motion, in respect of which two questions arise. Firstly, would the introduction of In Order 2019/20 effect "organisational change" for the purposes of cl 36 of the Permanent Award and cl 27 of the Retained Award? Secondly, and in the alternative, would that introduction prevent "work proceeding normally" within the meaning of cl 35.1 of the Permanent Award and cl 26.1 of the Retained Award? The desirability or validity of implementing In Order 2019/20 is the question at the heart of the substantive dispute, but that is a determination for another time. To that extent I do not propose to traverse the evidence and submissions that go to the merits or otherwise of implementing In Order 2019/20. Jurisdictional challenge 1. In its written Outline of Submissions FRNSW contended on several grounds that the Commission lacked jurisdiction to hear these proceedings at all and that, for apparently related reasons, the Motion constituted an abuse of process. FRNSW sought an order that the proceedings in toto be dismissed on these grounds. 2. During the hearing I explored these matters with Mr Baran of counsel, who appeared for FRNSW. Our exchange was quite lengthy and concluded as follows: [1] "COMMISSIONER: I'll go perhaps in a different way. [Section] 6 of the Industrial Relations Act defines 'industrial matters' as 'matters or things affecting or relating to work done or to be done in any industry, or the rights, duties or obligations of employers in any industry'. Doesn't the in-order affect or relate to work done or to be done in any industry? [BARAN]: It does. COMMISSIONER: So, why is that not an industrial matter by definition? [BARAN]: I would accept what you say, yes. COMMISSIONER: So, can I take it one step further and say that there is no basis for the jurisdictional objection? [BARAN]: Certainly I would accept that, now that it's being debated in this way, you're quite correct. We'd rather just deal with the motions, the three of them. …" 1. As FRNSW did not press its submissions that the Commission has no jurisdiction in these proceedings, I will take the matter no further. Applicable legal principles 1. The determination of the Motion turns on the proper construction of the relevant provisions of the Permanent Award and the Retained Award. 2. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Industrial Relations Act. The Permanent Award and the Retained Award are industrial instruments: s 8 of the Industrial Relations Act. 3. The language of s 175 makes it clear that powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10]. 4. In New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 the Full Bench restated the principles of award interpretation as follows: "21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.' 23. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038. 24. For completeness, we affirm these principles and apply them to the construction of the Status Quo Provision the subject of this appeal." 1. I will similarly apply these principles in the disposition of the Motion. Operation of Organisational Change provisions of awards Permanent Award 1. Clause 36 of the Permanent Award is reproduced above. Subclause 36.2 sets out the circumstances in which the clause will apply. 2. The FBEU contended that the clause applied by virtue of the reference in cl 36.2.1 to cl 4 of the Permanent Award. It submitted as follows: "25. Clause 4 sets out defined terms in the Award. It is unlikely as a matter of common sense that the parties intended the consultation provisions to only apply to proposals to change the definitions. This would be inconsistent with the underlying purpose of consultation clauses, which is to give employees the right to at least have a say into alterations to their working conditions. 26. Further, the clause is directed at matters about which the Commissioner retains a discretion to make alterations. Per cl.43 (no extra claims) this cannot include substantive alterations to conditions prescribed by the Award – such as actual overtime rates, or indeed the precise terms of the definitions – but is instead concerned with areas of more general application. 27. In this context, it is apparent that the reference to cl.4 has been used as a shorthand to identify matters of substance about which the Commissioner, should he propose to implement changes which affect practices concerning these, must consult. 28. This includes: a. outduties; b. overtime; and c. stand-bys. 29. From the above, and the evidence filed in the proceedings, it is apparent that In-Order 2019/20 is largely designed to: a. change the nature and frequency of outduties and stand-bys required to be performed by permanent firefighters; b. reduce the amount of overtime available to permanent firefighters. 16. Accordingly, the proposal to alter the conditions prescribed by In-Order 2008/22 is correctly considered organisational change within the meaning of cl.36. Its provisions apply." 1. The gravamen of the FBEU's submissions is that by referring to cl 4, cl 36.2.1 should be construed as providing that if the relevant decision relates to or affects a matter which is the subject of a definition in cl 4, it falls within cl 36.2.1. Clause 4 contains definitions of "Outduty", "Overtime" and "Stand By". The FBEU submitted that In Order 2019/20 impacted on each of these matters, so as to enliven cl 36.2.1. As a result the FBEU argued that cl 36 applies. 2. FRNSW did not address these submissions, or indeed the effect of the reference to cl 4 in cl 36.2.1, in its written Outline of Submissions. It made reference only to the other provisions referred to in cl 36.2.1 and contended that as In Order 2019/20 "had no effect whatsoever" on those provisions cl 36 did not apply. 3. During the hearing, FRNSW appeared to concede the FBEU's proposed construction of cl 36.2.1, but contended that the evidence did not make out a prima facie case that In Order 2019/20 did in fact relate to or impact any of the definitions in cl 4. I had the following exchange with Mr Baran: [2] "COMMISSIONER: So just on the principle then, am I right in saying that there is no contest that, in principle, if there was a decision or a proposed decision that was going to impact on a matter which was the subject of a definition such as out-duty, overtime or standby that might properly be the subject of consultation or might properly fall within cl 36.2.1, not about this case but just in theory. [BARAN]: In theory, correct, but there would have to be more. COMMISSIONER: Then the next question is whether in the evidence you say then there is enough to show that there has been an impact such as to invoke the Commission's discretion, essentially what you're saying, to make an interim order. [BARAN]: Yes." 1. I have reservations regarding the approach to the construction of cl 36.2.1 which the parties appear to have accepted. I note that each of the other clauses to which the cl 326.2.1 refers – cll 8, 13, 19 and 39 – contains one or more provisions allowing for FRNSW to take certain action, subject to consultation with the FBEU. Within cl 4 there are two definitions – "Competency" and "Operational Support Position" – which similarly reference consultation between FRNSW and the FBEU. 2. In this context, there may be an argument that cl 36.2.1 ought to be regarded as "calling up" the provisions of the award that require or allow for changes through consultation, and making them subject to the requirements of cl 36. Viewed in this light, the reference to cl 4 in the provision might better be construed as being confined to those definitions that allow for or require consultation. 3. However, as there appears to be consensus between the parties as to the proper construction of cl 36.2.1 it is not necessary to advance this discussion. 4. The question becomes whether the evidence establishes that the decision to implement In Order 2019/20 relates to or affects a matter which is the subject of a definition in cl 4. 5. In his affidavit, Mr Callow deposed as follows: "40. The changes proposed by a Fire & Rescue will affect: a. How often, and what kind of, outduties are performed by permanent firefighters; b. the amount of overtime that permanent firefighters will have access to; c. the nature and extent of standby work performed by permanent firefighters; d. the amount of work collectively available to retained firefighters." 1. While there is a degree of speculation in this evidence, and indeed throughout Mr Callow's affidavit, it was not directly challenged by Mr McNeil, whose second affidavit responded to other aspects of Mr Callow's evidence. 2. Mr Callow's views are also to be read in light of the following evidence contained in Mr McNeil's affidavit sworn on 29 November 2019: "18. FRNSW introduced CO 2019/20, in order to modernize the method of providing a service to the community by providing more flexibility in moving resources (appliances and staff) throughout its network. It allows an Area Commander through a risk assessment to make decisions of when supplementation of firefighters is or is not required. I understand, the Commissioner's Order is underpinned by the technological changes that have taken place since 2008. 19. A number of examples will demonstrate how CO 2019/20 will operate: a. FRNSW is able to TOL on a risk analysis basis, fire appliances, if there is insufficient available firefighters to attend incidents. It has no longer restricted itself to the possible TOLing of 32 Retained stations named In-Order 2008/22. It is not envisioned to TOL a permanent station for reason of staff unplanned leave. Of course, in practice, there will be stations which will not be able to be TOLed due to their significant distance from other stations. This will be part of the usual risk analysis. b. Subject to point (a), FRNSW will still respond 2 retained firefighters in an urban pumper, who will be able to undertake defensive firefighting, until 2 further retained firefighters arrive in their private vehicles and offensive firefighting can then be performed. Other appliances (which are not pumpers) at retained stations, will be staffed by 2 retained firefighters. Both responses are consistent with current safe and effective crewing. c. In 2008/22 when one of the retained stations which could not be TOLed, required replacement staff due to the absence of retained firefighters, which meant a crew of 4 retained firefighter was not available on a given day, another retained urban pumper and crew could move-up/standby to the station. 2008/22 did not expressly allow a permanent urban appliance and crew to move up/standby for the absent retained firefighters. CO 2019/20 allows a permanent urban appliance and crew to move up/standby for the absent retained firefighters. When this occurs, the permanent firefighters are on duty (rostered on) and therefore paid at normal single time rates. d. As 2008/22 did not expressly allow permanent firefighters to move-up/standby at single time rates, it meant that individual permanent firefighters were recalled on overtime rates. FRNSW has now advised decision makers in consideration of the risks that options include TOLing, move-ups of on-duty permanent firefighters, retained firefighters from other stations on relief duties, permanent firefighters on recall overtime etc depending on risk. e. If we use the example of the permanent staffed Mount Druitt Station, where a firefighter on short notice is absent on sick leave, so at 8 am only a Station Officer and 2 firefighters are present for that shift and no relieving firefighter is able to be sourced from another permanent station to cover the absent firefighter. FRNSW will routinely recall on overtime rates an off-duty permanent firefighter to cover the absent firefighter. However, CO 2019/20 allows a permanent urban pumper to move up for a retained urban pumper where absences affect the minimum crewing of 4 retained firefighters. f. In 2014 the Retained Award was changed (subclause 6.5.4) so that when a minimum crew of 4 retained firefighters is not available at a retained station and a retained firefighter from another station has to cover the absence on the relief duty rate of $199.97 for the first three hours, or a permanent firefighter is recalled to cover the absence on overtime rates, the retained firefighters who continue to turn up to incidents during this period will not be paid the hourly incident rate, unless they had indicated they were available for that period of time previously. This practice will continue under CO 2019/20 and is consistent with the Retained Award 2017." (Sic) 1. Under cross-examination Mr McNeil deposed as follows: [3] "Q. The in-order 2019/20 removes certain restrictions that existed in in-order 2008/22? A. Yes. Q. And those restrictions are on what Fire & Rescue could do if staffing shortages arose? A. No, I believe it's about risk management. Q. Broadly it's about risk management but you do appreciate that 2008/22 had restricted in some ways what Fire & Rescue could do if staffing shortages arose at certain retained stations; do you understand that? A. Yes. Q. The in-order, the old in-order, had a list of 32 stations that could be taken off line or closed; do you agree with that? A. Yes. Q. And then the remainder, which is the vast majority of retained stations, could not be taken off line or closed if staffing shortages arose? A. Yes. Q. By 'staffing shortages' I mean not enough retained fire fighters making themselves available at a particular time? A. That's correct. Q. Really, it's when the stations drop below four; you'd agree with that? A. Yes, in 2008. Q. In 2008, if that happened, there was a prescriptive list of steps that Fire & Rescue had to follow; you agree with that? A. That's correct. Q. And that was the practice that applied under that in-order? A. Yes. Q. 2018 removes those steps, doesn't it? A. 2019/20. Q. Yes, it removes those limitations? A. Yes. Q. And it expands what Fire & Rescue can do to respond to staffing shortages; do you agree with that? A. Yes but I'd prefer to say in regards to the risk management and relocation of resources. Q. Yes, sure but, in reality, what it does, it's got a broad - I think what we're talking about is the broad modern agile risk management framework that it introduces? A. That's correct. Q. Yes but it also talks specifically about staffing shortages, doesn't it? A. Availability shortages, yes. Q. Yes, so it removes a requirement to crew supplement for certain retained stations, doesn't it? A. Yes. Q. It means that Fire & Rescue no longer has to offer as much retained relief as it did under in-order 2008/22, doesn't it? A. 'Has to' is a critical word there because of recent months it's been the other way. We've offered a lot more. Q. Sure. But it's discretionary now? A. It's risk managed. Q. It's discretionary, Mr McNeil. Do you understand what I mean by 'discretionary'? A. Yes. Q. It's a choice that Fire & Rescue can now make; do you agree? A. Yes. Q. And so the reason you've been offering more at the moment is because half the State is on fire, but if it was a different time of year, you might make a different decision? A. That's correct. Q. You could choose for retained stations, say Richmond, not in the list of 32 in in-order 2008/22; do you agree? A. I agree. Q. Under the old system, if they only had three people available, you would have to crew supplement? A. Yes. Q. Fire & Rescue? Under the new system, you can make a choice not to do that? A. That's correct. Q. Yes, so it is, in that sense, a change in what Fire & Rescue may do where staff shortages arise; do you agree? A. Yes." 1. During the hearing of FRNSW's notice of motion seeking dispute orders on 9 November 2019 Paul McGuiggan, the Assistant Commissioner, Metropolitan Operations for FRNSW, deposed under cross-examination that the cost of paying firefighters overtime to provide relief work is one of the factors that would be taken into account under In Order 2019/20 and that saving money was "one of the options" under the In Order. [4] 2. In light of all of the evidence, I accept that In Order 2019/20 may have an impact on how often, and what kind of, outduties are performed by permanent firefighters, the amount of overtime to which they will have access, and the nature and extent of standby work to be performed by them. As each of "Outduty", "Overtime" and "Stand By" are defined in cl 4, it follows, on the agreed construction of cl 36.2.1, that cl 36 applies to the decision to implement In Order 2019/20. 3. It further follows that pursuant to cl 36.7 there can be no implementation of the change anticipated by In Order 2019/20 until the Commission has determined the substantive matter before it in these proceedings. This is subject, of course, to any further order of the Commission in the proceedings. 4. Clause 36.8 makes reference to the parties being bound by any "order or determination" made by the Commission "in relation to the dispute". It did not seem to be in contest that this would enable the Commission to make the determination sought in prayer 1 of the Motion, if it were satisfied that there were grounds to do so. I propose to make such a determination. Retained Award 1. Clause 27 of the Retained Award is reproduced above. The FBEU contended that the circumstances of this case fall under cl 27 by virtue of cl 27.2.3, which makes reference to "any proposal by the Department which will result in, or is likely to result in, a substantial and ongoing reduction in the work collectively available to a brigade's employees". 2. FRNSW submitted that cl 27.2.3 has no application. Its written outline of submissions included the following: "41. This is because when a particular appliance is TOLed due to lack of available staff, retained firefighters at that station are still 'responded' or called in relation to an incident and are able to attend the station or incident in their private vehicle and assist other firefighters from adjoining stations. In those circumstances the retained firefighter would be paid for his or her attendance in connection with that incident. Thus, the earning capacity of a retained firefighter is in fact determined by themselves and their own availability and is not impacted by the new Order. It follows that Clauses 27.2.3 and 27.7 have no application." 1. In response to this submission, the FBEU's written submissions in reply included the following: "16. This is incorrect. Under the current practices, where staffing shortages at retained stations occur, Fire + Rescue is obliged (after other steps are exhausted) to offer relief work to retained firefighters attached to other brigades – paid, as Mr McNeil's affidavit makes clear, at overtime rates. 17. This is work that is currently available to relief firefighters attached to brigades near stations that cannot be taken off-line under In-Order 2008/20. Given that the purpose of the order is to firstly remove this requirement and secondly (and more fundamentally) save money, it necessarily follows that there will be a reduction in the amount of this work that is available to retained firefighters. Given the budgetary pressure, this is likely to be substantial. Cl.27.2.3 is, and the consequent obligations are, thus enlivened." (Sic) 1. FRNSW did not directly respond to these submissions. Despite that, there are two things to say about the FBEU's submissions. Firstly, it is by no means clear on the evidence that the "fundamental" objective of In Order 2019/20 is to save money. This is a consideration that may need to be explored in resolving the substantive dispute between the parties, but at this stage it is a submission that must be treated with caution. 2. Secondly, there is no evidence of any "budgetary pressure" confronting FRNSW. There is no evidence before the Commission as to the current levels of overtime work performed by retained firefighters, or how they might be impacted by the introduction of In Order 2019/20. It follows that a submission that the reduction in available overtime work is "likely to be substantial" is unfounded and speculative. There is equally no basis on which I could safely conclude that any such reduction would be "ongoing". 3. I am not satisfied on the evidence that the requirements in cl 27.2.3 of the Retained Award have been met. It follows that cl 27 of the Retained Award does not apply to the circumstances of this case. 4. The sake of completeness, I observe that even were cl 27 to apply, cl 27.7 does not operate to enable the Commission to provide the FBEU with the relief that is sought in the Motion. Clause 27.7 is in different terms to cl 36.7 of the Permanent Award. The latter effectively operates to prevent the implementation of the relevant decision unless the Commission orders otherwise. Clause 27.7 of the Retained Award, by contrast, simply prevents the implementation of the change for 14 days, subject to any orders of the Commission. 5. On its terms, cl 27.7 does not provide a basis for a "determination" pursuant to cl 27.8 of the Retained Award that FRNSW "is prevented, until the matter is determined or the Commission so orders, from implementing the Decision". Rather, the language of the clause requires an application for an order to that effect. 6. As I have found that cl 27 does not apply in this case it is not necessary to take this discussion any further. The dispute resolution clause 1. In light of my findings that cl 27 of the Retained Award has no application in the present case, it is necessary to consider the alternative prayer in the Motion, namely that the Commission make a direction pursuant to cl 26.1 of the Retained Award that, in order to permit work to proceed normally while the dispute is resolved, FRNSW is not to implement In Order 2019/20 in so far as it departs from the practices and procedures restricted by In Order 2008/22. 2. In its written submissions the FBEU submitted as follows: "42. Although neither clause expressly uses the phrase 'status quo', this is nevertheless implicit through the reference to work proceeding 'normally', i.e. the intent of the clause is that the parties will, until the dispute or claim is resolved, conduct themselves in accordance with the usual conditions of work. 43. This is not limited to an absence of industrial action: so much is shown by cl.35.6 of the Permanent Award and 26.6 of the Retained Award which expressly restricts disruptive union action during the pre-notification steps. If the reference to 'work proceed[ing] normally' was so limited, these subclauses would have no work to do. 44. Instead, it is more easily interpreted as reflecting an intention of the parties to avoid disruption by permitting disputes to be resolved in a constructive, structured manner – which is entirely inconsistent with allowing one party to press on with disputed alterations to the existing work practices and procedures while the matter remains on foot. 45. In-Order 2019/20 is likely to dramatically change the manner in which work will proceed for: a. operational firefighters, who may be dealing with less operational coverage and the consequent effect on incident response, in addition to altered patterns of work via outduties, moveups and stand-bys; b. Area Commanders, who are suddenly tasked with a wide and essentially unguided discretion in respect of dealing with operational readiness; and c. Communications staff, who as Mr Fisher sets out will deal with significant new issues relating to managing callouts. 46. Accordingly, in the circumstances of this case, work will not proceed normally if Fire & Rescue is permitted to implement In-Order 2019/20. 47. In these circumstances, an order restraining Fire & Rescue from implementing In-Order 2019/20 is within power and should be made." (Sic) 1. FRNSW did not address these submissions, apparently relying on the (since abandoned) submissions that the Commission had no jurisdiction in these proceedings and that the matter was otherwise an abuse of process. 2. The FBEU presses a construction of cl 26.1 of the Retained Award (and cl 35.1 of the Permanent Award) which requires the parties to maintain the status quo until such time as the dispute is resolved by the adoption of the procedures set out in the respective provisions, including as a consequence of the referral of the dispute to the Commission. The FBEU would interpret the phrase "work proceeds normally" as meaning "work proceeds in accordance with the status quo ante". 3. The Macquarie Dictionary defines "normally" to mean "as a rule; regularly; according to rule, general custom, etc." Such a definition lends itself to the construction pressed by the FBEU. 4. I have referred above to the evidence regarding the changes that are likely to be introduced as a result of the implementation of In Order 2019/20. While I do not consider that the evidence necessarily gets the point of substantiating the FBEU's submissions that the In Order is "likely to dramatically change the manner in which work will proceed" (my emphasis), I am satisfied that there will be changes to the manner in which work has customarily been performed at FRNSW, including as a consequence of the constraints of In Order 2008/22. 5. It follows that if In Order 2019/20 were to be implemented, FRNSW would be acting contrary to its obligation to allow work to proceed normally, while the procedures in cl 27 in the Retained Award are applied. I accept the FBEU's submissions that it would be within power for the Commission to make a direction to ensure award compliance. 6. Mr Baran likened the Motion to an application for a quia timet. He submitted that in order to succeed on the Motion it was necessary for the FBEU to make out a prima facie case. In support of these submissions he relied upon Davis v Industrial Relations Secretary (on behalf of the NSW Rural Fire Service) [2019] NSWIRComm 1064. 7. Davis involved an application for an interlocutory order under s 87(7) of the Industrial Relations Act to prevent the threatened dismissal of an employee. As the authorities cited in that case make clear, such an order is discretionary and requires an assessment of the applicant's prospects of success in the substantive application and of the balance of convenience. 8. In the present case, any direction would be made pursuant to s 136(1)(a) of the Industrial Relations Act. Such a direction would be designed to ensure that the parties comply with and have the benefit of extant obligations and rights contained in the Retained Award. This is to be contrasted with an application under s 84 of the Industrial Relations Act in which the rights, if any, of an employee can only finally be determined at the conclusion of proceedings. 9. For these reasons, I do not consider that Mr Baran's reliance on Davis, or his equation of the Motion to an application for injunctive relief, to be of particular assistance. Summary of findings and conclusions 1. I find, on the basis of the construction of cl 36.2.1 of the Permanent Award agreed by the parties, that cl 36 applies to the decision to implement In Order 2019/20. 2. It follows that pursuant to cl 36.7 there can be no implementation of the change anticipated by In Order 2019/20 until the Commission has determined the substantive matter before it in these proceedings, subject to further order of the Commission. 3. I find that in the circumstances of this case, cl 27 of the Retained Award does not apply. 4. I find that the reference in cl 26.1 of the Retained Award to "work proceed[ing] normally" requires the parties to maintain the status quo until such time as the dispute is resolved by the adoption of the procedures set out in the provision, including as a consequence of the referral of the dispute to the Commission. 5. I am satisfied that the introduction of In Order 2019/20 would result in changes to the manner in which work has customarily been performed at FRNSW, including as a consequence of the constraints of In Order 2008/22. It follows that if In Order 2019/20 were to be implemented, FRNSW would be acting contrary to its obligation to allow work to proceed normally pending resolution of the dispute. 6. In all of the circumstances I am satisfied that it is appropriate that a direction be made to ensure that the parties meet their obligations under cl 26.1, and that their rights under that provision are protected. Included in my consideration is my finding as to the applicability of cl 36 of the Permanent Award and the determination that I propose to make consistent with cl 36.8 of that award. To my mind it would be a recipe for confusion to enjoin the implementation of In Order 2019/20 for permanent firefighters but not for retained firefighters. 7. I have also taken into account the evidence of Mr McNeil during the hearing on 13 December 2019, and of Mr McGuiggan on 9 November 2019, to the effect that while FRNSW considers In Order 2019/20 to have been implemented (in the sense of having commenced), to date there have been few if any practical changes to the way in which staff and appliances are deployed. A direction which seeks to retain the status quo would not appear to require any changes to the way in which FRNSW currently operates. 8. At the same time, I am cognisant of the fact that the parties have been in discussions concerning In Order 2019/20 since June 2019. It is in the interests of the parties that the substantive dispute underpinning these proceedings be resolved without undue delay. I will list the matter for directions so that the matter can be programmed for arbitration at the earliest opportunity. Determination, direction and orders 1. I determine that: 1. cl 36 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 applies to the circumstances of this case; and 2. pursuant to cl 36.7 of that award there can be no implementation of the change anticipated by In Order 2019/20 until the Commission has determined the substantive matter before it in these proceedings, subject to further order of the Commission. 1. Subject to further order of the Commission, Fire and Rescue NSW is directed not to implement In Order 2019/20 in so far as it departs from the practices and procedures prescribed by In Order 2008/22. 2. The Motion is otherwise dismissed. Damian Sloan Commissioner ********** Endnotes 1. Tcpt 13 December 2019 p 5 (33-49) 2. Tcpt 13 December 2019 pp 32(45) – 33(8) 3. Tcpt 13 December 2019 pp 10(49) – 12(41) 4. See Tcpt 9 November 2019 pp 32(39) – 34(2) 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. Decision last updated: 14 January 2020