Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2020] NSWIRComm 1016 Hearing dates: 20 February 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. The notice of motion filed by Fire and Rescue NSW on 4 December 2019 is dismissed. 2. The matter is listed for directions, to be conducted by teleconference, at 9.00am on Friday, 20 March 2020. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – whether Commission's jurisdiction to deal with disciplinary or remedial action against an employee is confined to Ch 2 Pt 7 of the Industrial Relations Act 1996 (NSW) – whether such disciplinary or remedial action can be an "industrial dispute" able to be dealt with under Ch 3 of Industrial Relations Act Legislation Cited: Fire and Rescue NSW Act 1989 (NSW) s 74 Fire Brigades Regulation 2014 (NSW) reg 3, Part 4, reg 34 Government Sector Employment Act 2013 (NSW) s 58(6) Industrial Relations Act 1996 (NSW) ss 3, 6, Ch 2 Pt 7, ss 91, 97, 98, 99, 100B(2), Ch 3 ss 130, 135(2), Dictionary Technical and Further Education Commission Act 1990 (NSW) s 19 Cases Cited: Beattie v Commonwealth Bank of Australia (2006) 155 IR 295; [2006] NSWIRComm 238 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 Unuafe v Commissioner of Police [2015] NSWIRComm 1007 Category: Procedural and other rulings Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Fire and Rescue NSW (Respondent) Representation: Counsel: D Baran (Respondent) Solicitors: C McArdle of McArdle Legal (Notifier) People & Culture Directorate, Fire & Rescue NSW (Respondent) File Number(s): 2018/208229 Publication restriction: Nil INTERLOCUTORY Judgment 1. The Fire Brigade Employees' Union of New South Wales ("FBEU") represents Erin Rampling, a Leading Station Officer employed with Fire and Rescue NSW ("FRNSW"). On 6 July 2018 the FBEU notified the Industrial Registrar of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("IR Act"). In broad terms, the dispute was said to relate to the implementation of remedial action to be taken against Mr Rampling as a result of findings that he had engaged in misconduct. 2. On 4 December 2019 FRNSW filed a notice of motion seeking to have the proceedings dismissed, with costs ("Motion"). On 6 December 2019 I ordered, over the objections of the FBEU, that the Motion would be determined on an interlocutory basis in advance of any hearing of the substantive proceedings. 3. The hearing of the Motion took place on 20 February 2020. Mr D Baran of counsel appeared for FRNSW. Mr C McArdle, a solicitor with McArdle Legal, appeared for the FBEU. 4. This decision disposes of the Motion. Factual background 1. Both parties adduced evidence at the hearing. In the main, the evidence was admitted without significant objection on the basis that it was tendered to provide the factual context in which FRNSW's jurisdictional objection would need to be considered, and that the parties reserved their rights to object to or challenge the evidence if the matter proceeded to a hearing on the merits. With this in mind, I will not identify or seek to outline all of the evidence but will instead provide a summary of what I consider to be the facts necessary to determine the Motion. 2. Mr Rampling's employment with FRNSW is subject to the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 ("Award"). 3. In 2016 Mr Rampling was the subject of a number of complaints alleging that he had engaged in misconduct. In October 2016 SINC Solutions Pty Ltd was engaged by FRNSW to conduct an investigation into those complaints. 4. On 4 April 2017 the FBEU, on behalf of Mr Rampling, notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the IR Act. In those proceedings the FBEU sought further and better particulars of the allegations against Mr Rampling as well as the lifting of restrictions that it alleged had been imposed on him by local management with regard to his position as a Station Commander. That dispute was the subject of conciliation in the Commission but was closed without proceeding to arbitration. 5. On 13 April 2017 SINC Solutions published the report of its investigation into the allegations against Mr Rampling. Of the 41 allegations that were investigated, 17 were sustained, eight were sustained in part, 13 were not sustained and three were not able to be determined. 6. On 25 May 2017 Mr Paul McGuiggan, the Assistant Deputy Commissioner Field Operations for FRNSW, wrote to Mr Rampling. The letter outlined the findings contained in the SINC Solutions report and informed Mr Rampling that Mr McGuiggan was considering taking disciplinary action against him. The letter invited Mr Rampling to make a written submission and provide any additional information he wished to have taken into account, and to request an interview with Mr McGuiggan, before a final decision was made. 7. On 13 November 2017 Mr McGuiggan wrote to Mr Rampling. That letter made reference to a written response to Mr McGuiggan's letter of 25 May 2017 having been provided to FRNSW by the FBEU, on behalf of Mr Rampling, on 5 July 2017. It also stated that Mr Rampling had met with Mr McGuiggan on 8 September 2017. 8. The letter of 13 November 2017 informed Mr Rampling that a finding of misconduct had been made against him as a consequence of which the following "remedial action" was to be taken: 1. Mr Rampling was to receive a warning (which was in fact contained in the letter itself); 2. Mr Rampling was to be transferred to the Zone Office at Ballina, albeit at the same rank; 3. Mr Rampling was to undertake "formal counselling and mentoring"; and 4. Mr Rampling was to be subject to a Conduct Improvement Plan and his performance monitored for a period of 24 months. 1. On 8 December 2017 the FBEU notified a second industrial dispute to the Industrial Registrar challenging, in short, the process, fairness and outcomes of the SINC Solutions investigation. Again, that dispute was the subject of conciliation in the Commission but was closed without proceeding to arbitration. 2. From late 2017 FRNSW and the FBEU corresponded over the remedial action proposed to be taken against Mr Rampling. The present proceedings 1. On 6 July 2018 the FBEU filed the Notification which, amongst other things: 1. outlined the effect of correspondence between the parties regarding the creation and implementation of the proposed Conduct Improvement Plan; 2. expressed concerns that Mr Rampling was performing the work of an Inspector but being paid as a Leading Station Officer; and 3. asserted that Mr Rampling had been told that he would not be "acting up" at any time, which was not a restriction referred to in Mr McGuiggan's letter of 13 November 2017. 1. The Notification described the relief sought in the following terms: "The Union seeks the assistance of the Commission in directing that an agreed, written plan be finalised with regard to LSO Rampling's remedial action within 2 weeks including that he is not to be excluded from acting up to Inspector but will not perform Inspector work unless he is paid at that rate." 1. The matter was initially allocated to Commissioner Murphy, who between July 2018 and October 2019 unsuccessfully attempted through conciliation to assist the parties to resolve their dispute. On 16 October 2019 the Commissioner issued a Certificate of Attempted Conciliation pursuant to s 135(2) of the IR Act. 2. On 19 November 2019 the solicitors for the FBEU sent an email to the Industrial Registrar attaching a document setting out the orders sought by the union. Those proposed orders ("Orders Sought") were in the following terms: "1. That the Performance Improvement Plan currently in place affecting Leading Station Officer Rampling, be discontinued. 2. That Leading Station Officer Rampling be placed on a permanent roster as a Station Commander forthwith, arising from the determination of this Commission that to do so would be either one or both of, unjust or unreasonable. 3. If it is not possible, having regard to reasonable criteria arising from identifiable managerial prerogative, to adhere to Order 2 forthwith, Fire and Rescue NSW have leave to apply for a reasonable delay acceptable to the Commission, provided that such delay is not either or both of unjust or unreasonable. 4. That the station to which Leading Station Officer Rampling is placed on the said permanent roster, be at a Station reasonably accessible from his home at Ballina NSW." The Motion 1. The Motion was filed on 4 December 2019. FRNSW sought orders that: 1. the Notification and the Orders Sought be dismissed; and 2. the FBEU pay FRNSW's costs on the Motion. 1. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 ("Public Service Association") Chief Commissioner Kite stated as follows: "9. The principles to be applied in an interlocutory application made to strike out an application for want of jurisdiction are well established. In Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; 39 IR 169, Kirby P said at 446G: Such a course is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. But, as with any threshold relief of this kind, it must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for (1991) 28 NSWLR 443 at 447 any order which the Commission might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. This burden, which is a heavy one, was accepted by the claimants. In my opinion they have failed upon each of the three matters argued in this Court. (Emphasis added)" 1. See also Beattie v Commonwealth Bank of Australia (2006) 155 IR 295; [2006] NSWIRComm 238 at [28]-[31]. 2. Whether or not the Commission has jurisdiction in a particular matter is a conclusion which is to be formed at the ordinary level of persuasion, not at any heightened level of certainty: Unuafe v Commissioner of Police [2015] NSWIRComm 1007 at [11]. 3. I will approach the matter on the basis set out in these authorities. Legislative and regulatory context 1. To comprehend the basis on which FRNSW contended that the Commission lacks jurisdiction in these proceedings, it is necessary to set out some of the legislative and regulatory framework in which the matter arises. 2. Chapter 3 of the IR Act, under which the Notification is brought, confers on the Commission the power to resolve industrial disputes. Section 130(1) identifies the parties able to "notify the Commission of an industrial dispute for the purposes of resolving the dispute". The term "industrial dispute" is defined in the Dictionary to the IR Act as meaning "a dispute (including a question or difficulty) about an industrial matter". In turn, "industrial matter" is defined in s 6 of the IR Act as follows: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. 1. Chapter 2 Pt 7 of the IR Act is titled "Public sector disciplinary appeals". Section 98 enables a public sector employee to appeal to the Commission against an "appealable decision". An "appealable decision" is defined in s 91(1) as being a decision of the kind referred to in s 97(1), which provides as follows: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. 1. Part 4 of the Fire Brigades Regulation 2014 (NSW) ("Regulation") prescribes the process by which the Commissioner of FRNSW may deal with allegations of misconduct against a firefighter. If the misconduct is established, the Commissioner may either take "disciplinary action" or "remedial action". These terms are defined in reg 3 of the Regulation as follows: 3 Definitions (1) In this Regulation: … disciplinary action, in relation to a firefighter, means any one or more of the following: (a) terminating the firefighter's appointment, (b) directing the firefighter to resign, or to be allowed to resign, within a specified time, (c) a demotion in rank. (d) the imposition of a fine not exceeding 10 penalty units, (e) a caution or reprimand. … remedial action, in relation to a firefighter, means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the firefighter's conduct, (d) implementing a conduct improvement plan, (e) the issuing of a warning to the firefighter that certain conduct is unacceptable, (f) transferring the firefighter to another firefighter position of the same rank, (g) any other action of a similar nature. 1. The Regulation allows for the Commissioner of FRNSW to issue guidelines for the management of employee misconduct, in these terms: 34 Issuing of procedural guidelines (1) The Commissioner may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct against firefighters as a disciplinary matter, and (b) the taking of disciplinary action with respect to firefighters under this Part, and (c) any other matter referred to in this Part. (2) The procedural guidelines must be consistent with the rules of procedural fairness. (3) Without limiting subclause (2), the procedural guidelines are to ensure that: (a) a firefighter to whom an allegation of misconduct relates: (i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the firefighter, and (ii) is given an opportunity to respond to the allegation, and (b) a firefighter against whom the Commissioner is proposing to take disciplinary action under Division 2 or 3 is given a reasonable opportunity to make a submission in relation to that proposed action. (4) The Commissioner may from time to time amend, revoke or replace the procedural guidelines. (5) The Commissioner must not amend, revoke or replace the procedural guidelines unless the Commissioner has first consulted with the Fire Brigade Employees' Union of NSW on the amendment, revocation or replacement. Note. The Industrial Relations Commission may deal with industrial disputes in relation to the privileges, rights, duties or obligations of employers or employees in any industry under the Industrial Relations Act 1996. See, in particular, Chapter 3 of that Act. … 1. The Regulation is made pursuant to s 74 of the Fire and Rescue NSW Act 1989 (NSW), which provides as follows: 74 Regulations relating to members of fire brigades (1) The regulations may make provision for or with respect to the employment of members of permanent fire brigades and the service of members of retained fire brigades, including the conditions of that employment and service and the discipline of members. (2) Any such regulations relating to conditions of employment or service, or discipline: (a) have effect subject to any relevant award made by a competent industrial tribunal and to any industrial agreement to which the Industrial Relations Secretary is a party, and (b) have effect despite any determination of the Industrial Relations Secretary under section 71 (Industrial Relations Secretary may fix salaries, wages etc). 1. It is convenient at this point to reproduce the "Disputes Avoidance Procedures" provision from the Award, 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. Submissions 1. FRNSW's Outline of Submissions included the following contentions: "20. Part 4 of the Regulation, in particular clause 35(1) gives the Commissioner the power once an allegation has been made where it is alleged that a firefighter may have engaged in any misconduct to:- (a) Decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines; or (b) Decide that it is appropriate to take remedial action with respect to the firefighter. 21. It is submitted that the only time when the Commission can make Orders regarding the outcome of an investigation is where that outcome has involved a disciplinary matter with disciplinary action imposed which would attract the provisions of s.97 - s. 100C of the Act. 22. There is no doubt (and indeed it has been conceded) that none of the matters identified in s.97 of the Act play any role here. Leading Station Officer Rampling is being dealt with pursuant to remedial action in accordance with the Regulations. The conjunctive regulation makes it clear there are two options. This is also not a case where Rampling has been threatened with dismissal or has been dismissed, which would arguably give him rights pursuant to Part 6 of the Act. 23. The controversy now centres upon remedial action taken by the Commissioner and alterations to the remedial action that the Applicant seeks by way of Orders from the Commission. It with respect has no power to make these orders. 24. It is respectfully submitted that the only Orders that the Commission can make given there is no threat of dismissal or dismissal are confined to disciplinary matters which are disciplinary appeals within the meaning of the Act. Remedial action is beyond the scope and jurisdiction of the Commission. 25. It is also not alleged that any award has been breached. If a clause or clauses of an award were the subject of an allegation of breach then, within that context, the Commission would have jurisdiction to hear that issue even though it arose out of remedial action. …" (Emphasis in original) 1. At the hearing, Mr Baran expanded on these submissions. The position put by FRNSW came down to these propositions: 1. The Commission's power to deal with appeals brought by employees into disciplinary action taken against them is contained in Ch 2 Pt 7 of the IR Act. Section 97(1) defines the types of disciplinary action that attract the Commission's jurisdiction. Any form of disciplinary or remedial action taken against an employee outside of the categories in that section fall outside the Commission's jurisdiction. 2. Part 4 of the Regulation contains comprehensive provisions dealing with the management of employee misconduct. The Regulation gives the Commissioner of FRNSW the power to take either disciplinary or remedial action against an employee found guilty of misconduct. It does not permit a right of review to the Commission and, in the absence of such provision, the Commission does not have jurisdiction. 3. Having regard to the IR Act, the Fire and Rescue Act and the Regulation, the clear intention of the legislature is that other than in relation to the appealable decisions prescribed in s 97(1) of the IR Act, matters involving or relating to the investigation into alleged misconduct by firefighters, or as to any remedial or disciplinary action to be taken against a firefighter, is not to be the subject of external review by the Commission. 4. This is borne out by the note which appears under reg 34(5) of the Regulation. The placement of that note evinces a legislative intention that as far as employee misconduct is concerned, and subject to s 97 of the IR Act, the Commission can only deal with disputes arising in relation to the development of the procedural guidelines anticipated by reg 34. In every other respect the Commission cannot interfere. 5. A firefighter would have public law remedies if the Commissioner or his delegate purported to take action against them which was beyond power. 1. During the hearing I had the following exchange with Mr Baran: [1] "COMMISSIONER: So, Mr McArdle can ask for the moon and stars. It's up to me to decide what relief will be granted, whether it's what he asked for or some other relief within the powers I have under the Act. But that doesn't go to jurisdiction, that goes to remedy. So, what I'm struggling with at the moment is the suggestion which seems to be that if the Commissioner for Fire & Rescue NSW takes action against an employee which does not fall within action in 97(1) of the Industrial Relations Act, it is not capable of being reviewed by this Commission. That's as I understand your submission. BARAN: That is my submission. It is as straightforward as that and what the regulations provide for is the contrary, namely a complete avoidance of contested, litigious, acrimonious contest, either in secret tribunals, as used to be the case, or the Industrial Relations Commission, if it is not a disciplinary matter. COMMISSIONER: But you would say then that the definition of 'industrial matter' in s 6 of the Act must be read as excluding disciplinary type issues that are not identified in s 97(1). BARAN: Correct. We say that it is obviously an extremely wide definition to encapsulate every possible public sector controversy involving a public sector employee and public sector employer. However, because this involves this conduct which has been found and disciplinary action, then it can't, as it were, via another doorway be a mechanism. All I need is an industrial matter and that's the end of it and then you have jurisdiction. Well, that ignores entirely what the proper construction is of s 97 and that particular part, that is that the only, the only area that the IRC will trammel into is an appeal against a disciplinary finding because what is of paramount importance is the regulation which has been established, based on a head of power, to ensure that under no circumstances whatsoever does another mechanism in another Act in effect trump was contained in that regulation and what the Assistant Commissioner can do." 1. The FBEU's submissions included the following contentions: 1. The matters that are the subject of the Notification are "industrial matters" as defined in s 6 of the IR Act. This enlivens the Commission's jurisdiction under Ch 3 of the IR Act. 2. Nothing in the Regulation or the Fire and Rescue NSW Act limits the Commission's powers to adjudicate on industrial matters. Further, the Regulation could not, as subordinate legislation, override the IR Act. 3. In the absence of an express ouster of the jurisdiction by the legislature, there is nothing to preclude an application being made under s 130(1) of the IR Act in respect of disciplinary or remedial action taken against an employee. 4. Further, cl 35.7 of the Award provides that if the parties are unable to resolve any "claim, issue or dispute" that arises, having followed the procedures set out in cl 35, the matter may be referred to the Commission. 5. By virtue of s 74(2) of the Fire and Rescue NSW Act the Regulation is subject to the Award. Consideration 1. To the extent that FRNSW contended that on the terms of the IR Act the Commission's jurisdiction in respect of any matter involving employee discipline is limited to that conferred on it by Ch 2 Pt 7 of the IR Act, to the exclusion of Ch 3, I do not agree. Having regard to the IR Act as a whole, there are five points to make. 2. Firstly, the objects in s 3 of the IR Act include the provision of a framework for the conduct of industrial relations that is fair and just. If FRNSW's submissions were accepted, a firefighter who is the subject of misconduct allegations would have no legislative right to raise a grievance as to the way in which the allegations were brought and investigated, or to challenge the findings following investigation. They would similarly have no legislative right to challenge any action taken against them, unless it was of a kind referred to in s 97(1) of the IR Act. In light of the objects of the IR Act, these are potential outcomes that must be approached with caution. 3. Secondly, FRNSW's submissions do not take into account s 99 of the IR Act, which is in these terms: 99 Alternative rights of appeal (1) Nothing in section 98 derogates from or otherwise affects any right of appeal a public sector employee may have, or other proceedings which may be instituted by the employee or on his or her behalf, under this or any other Act or law or any industrial award or agreement (whether enacted, existing or made before, on or after 1 July 2010) in respect of an appealable decision. (2) A public sector employee may not appeal to the Commission under section 98 in respect of an appealable decision if: (a) the employee has elected, in writing, to forgo a right of appeal under section 98 in respect of the decision, or (b) the employee makes an appeal or institutes other proceedings, or proceedings are instituted on the employee's behalf, in respect of an appealable decision under an Act or law or an industrial award or agreement referred to in subsection (1). (3) If an employee appeals to the Commission under section 98 in respect of an appealable decision, the employee may not then, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his or her behalf under an Act or law or an industrial award or agreement referred to in subsection (1). 1. The Commission has previously held that the effect of s 99 is to permit employees to elect which process they pursue, whether under Ch 2 Pt 7 or otherwise, provided that a duality of proceedings is avoided. That is, Ch 2 Pt 7 and Ch 3 are alternatives that are both available to an employee, at least until the time for lodging an appeal in accordance with s 100B(2) of the IR Act: Public Service Association at [37] and [42]. This is obviously contrary to any suggestion that Ch 2 Pt 7 operates to the exclusion of Ch 3. 2. Thirdly, s 97(1) does no more than identify those "appealable decisions" which may be the subject of an appeal to the Commission under Ch 2 Pt 7. The language of the provision does not lend itself to a conclusion that all other disputes that might arise from the laying and investigation of misconduct allegations against a firefighter through to the imposition of sanctions, other than those referred to in s 97(1), would be incapable of resolution by the Commission under Ch 3. 3. Fourth, the definition of "industrial matters" in s 6(1) of the IR Act is of broad scope. It would encompass the controversy described in the Notification. If the Notification discloses an industrial matter, any dispute (including a question or difficulty) about that matter would by definition be an "industrial dispute" for the purposes of the IR Act. This is turn would enliven s 130 and the Commission's jurisdiction under Ch 3. 4. Fifthly, I also observe that FRNSW allowed for the possibility that an employee dismissed or threatened with dismissal as a result of a disciplinary process would "arguably" have rights under Ch 2 Pt 6 of the IR Act. Given that s 97(1)(f) of the IR Act makes specific reference to a decision to dismiss the employee, it is unclear from the case advanced by FRNSW why Ch 2 Pt 6 would be available to provide a remedy to the employee but Ch 3 would not. 5. Viewed as a whole, and having regard to Public Service Association, the IR Act cannot be construed so as to preclude matters involving employee misconduct and discipline being dealt with by the Commission under Ch 3 of the IR Act. Further, there is nothing in the IR Act which would exclude firefighters who are the subject of action under Pt 4 of the Regulation from having access to that jurisdiction. 6. For these reasons, I find that the IR Act confers on the Commission the jurisdiction to determine the dispute described in the Notification. It follows that to succeed on the Motion FRNSW must demonstrate that on some other basis the Commission is deprived of that jurisdiction. 7. As FRNSW submitted, Pt 4 of the Regulation provides detailed guidance as to the way in which misconduct allegations against firefighters are to be investigated and the powers available to the Commissioner for FRNSW if misconduct is sustained. Those provisions are further enhanced by a document titled "Procedural Guidelines for the Management of Conduct" which was in evidence and which was apparently issued pursuant to reg 34. As stated at [33] above, Mr Baran submitted that no Act could "trump" what was contained in the Regulation. He further stated that s 6 of the IR Act could not be applied on its terms to the present case as that would be "contrary to what the 2014 regulations permit". [2] 8. The first response to these submissions is to observe, as did the FBEU, that the Regulation is subordinate legislation. It cannot deprive the Commission of jurisdiction that otherwise exists under the IR Act. 9. Further, the mere existence of Pt 4 of the Regulation and of the guidelines is not of itself inconsistent with the Commission having the ability to resolve an industrial dispute (as defined in the IR Act) arising out of the management of firefighter misconduct. There is nothing in the language of the Regulation, or indeed the Fire and Rescue NSW Act, that expressly or impliedly seeks to oust the Commission's jurisdiction in the manner for which FRNSW contended. 10. In this regard, FRNSW sought to rely on the absence of any provision in the Fire and Rescue NSW Act or the Regulation conferring a right of review on the Commission. Patently, this submission is premised on the assumption that the jurisdiction otherwise does not exist. For the reasons set out above, this is a false premise. Jurisdiction is conferred on the Commission by Ch 3 of the IR Act. The Commission does not require approval under the Fire and Rescue NSW Act, much less the Regulation, to exercise that jurisdiction. That the legislature has not in the Fire and Rescue NSW Act or the Regulation expressly provided for review by the Commission in the context of firefighter misconduct cannot, of itself, derogate from the jurisdiction otherwise conferred on the Commission. 11. The note beneath reg 34(5) of the Regulation cannot be construed as conveying the intention, much less having the effect, that in respect of any matters affecting or relating to firefighter misconduct the Commission's jurisdiction under Ch 3 of the IR Act is confined to disputes regarding any proposed amendment, revocation or replacement of the procedural guidelines anticipated by the reg 34. At most, the note serves to highlight, particularly in relation to those matters, the availability of any dispute being referred to the Commission for resolution. 12. For these reasons I am not satisfied that FRNSW has established a basis on which it could be found that the Commission is unable to deal with matters involving firefighter misconduct under Ch 3 of the IR Act. 13. Further, there is merit in the argument advanced by the FBEU that pursuant to s 74(2) of the Fire and Rescue NSW Act the Regulation has effect subject to the Award. Clause 35.7 of the Award allows for any "claim, issue or dispute" which cannot be agreed between the parties to be referred to the Commission. There is nothing in the Award that demonstrates an intention to exclude from cl 35 matters arising under Pt 4 of the Regulation. 14. Through the course of the hearing FRNSW referred on several occasions to the Orders Sought and suggested that they were beyond the power of the Commission to make. Even were that to be the case (about which I make no findings at this time), it is not to the point. The Commission is not a tribunal of strict pleading. The relief, if any, which may be granted following an arbitration of this matter is for the Commission to determine, and the Commission's discretion is not fettered or constrained by the relief sought by the FBEU. Consistent with the authorities referred to at [19] and [21] above, the question is not whether the Commission could or should make the Orders Sought, but whether FRNSW can demonstrate that there is no order that could be made by the Commission in these proceedings which would be within jurisdiction. FRNSW has failed to do so. Orders 1. I order as follows: 1. The notice of motion filed by Fire and Rescue NSW on 4 December 2019 is dismissed. 2. The matter is listed for directions, to be conducted by teleconference, at 9.00am on Friday, 20 March 2020. Damian Sloan Commissioner ********** Endnotes 1. Tcpt pp 12(25)-13(6) 2. Tcpt p 13(22) 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: 13 March 2020