Broadhurst v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2026] NSWIC 2

1. Mr Travis Broadhurst, an employee of the respondent, is seeking, pursuant to s 365 of the Act, the recovery of remuneration due to him in accordance with the terms of the Award but which remains unpaid. Section 369(1)(a) of the Act permits him, as the person to whom that money would be payable, to make the application for recovery of that money.

1. In his application Mr Broadhurst also sought the imposition of civil penalties for the breaches of the industrial instrument which he alleges underpin the claims he makes in his application. It is convenient to deal with this claim immediately.
2. The applicant referred to this claim in his Outline of Submissions saying that it "may be pressed if applicable". In his oral submissions counsel for the respondent submitted[6] that the applicant lacked standing to make an application for civil penalties. Further as the FBEU, which has standing, had not made such an application, there was no basis for the applicant to be heard on the subject.
3. At the time of making his application s 357 of the Act provided:

357 Civil penalty for breach of industrial instruments

(1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty).

(2) Proceedings for a civil penalty may be instituted -

(a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or

(b) by an employer bound by the industrial instrument concerned, or

(c) by an industrial organisation concerned in the industry to which the proceedings relate.

1. Mr Broadhurst is not a person within the categories listed in s 357(2)(a), (b) or (c) and did not, therefore, have authority to institute civil penalty proceedings at that time. Section 357 was amended with effect from 3 July 2025 to the following form:

357 Civil penalty for breach of industrial instruments

A person must not contravene a provision of an industrial instrument.

Maximum civil penalty - $10,000.

1. However, s 400E was added on 3 July 2025, and the current version of this section provides relevantly:

400E Application for civil penalty orders

(1) The following persons may apply to the industrial court for a civil penalty order -

(a1) a person affected by the contravention, other than a contravention of section 136A or 357,

...

1. There is no doubt in my mind that the applicant is a person affected by the alleged contravention, but the contravention alleged is of s 357. As such, he did not and still does not have authority to seek a civil penalty order. That part of his claim must fail.

1. In order to pursue progression in his employment as a firefighter, the applicant agreed to attend the Hazmat Technician Course (Hazmat Course) from 22 to 26 July 2019 and the Leading Station Officer course (LSO Course) from 30 November to 11 December 2019. It is in relation to these two courses that he makes the following claims in his pleadings:

(1) The respondent misapplied the special roster with respect to the first applicant attending, due to sub-cl 8.2, resulting in the first applicant being rostered off-duty on all dates when attending, apart from 4 December 2020.

(2) The respondent approved the applicant's attendance within the meaning of sub-cl 16.10.1.

(3) The applicant accrued overtime, by the operation of sub-cls 16.10 and 6.9.2, on those days he was rostered off-duty.

(4) The applicant is entitled to payment of $10,941.46 in unpaid overtime in addition to accrued interest.

(5) Civil penalties arise for non-compliance with sub-cl 6.9.2.

1. The FBEU is an industrial organisation registered under Ch 5 Pt 3 of the Act. It is entitled to enrol and represent the industrial interests of employees engaged in or in connection with firefighting and fire prevention in NSW.
2. The claims made by the FBEU, which have been set out at [3], are materially similar to those of the applicant, seeking a general order on overtime accrued under sub-cl 16.10 of the Award for every firefighter who attended progression, promotion or specialist qualification courses whilst covered by the 2017, 2020, 2021 and 2022 iterations of the Award, and in the alternative, for the firefighters that attended the LF Progression Course from 11 to 20 February 2019 and the Station Officer Promotional Program course from 8 to 26 March 2021. The second applicant, however, is not seeking civil penalties at this time.

1. The respondent submitted that the s 369(3) limitation period was irrelevant since the sought declaration was non-specific with respect to dates and the 2017 iteration of the Award did, partially, fall within the ambit of that limitation period.
2. The FBEU submitted that:

(1) The 2017 Award operated within the period permitted by s 369.

(2) Section 369 is expressly directed to an application for an order for the payment of money. No application is made by the FBEU for the payment of money.

(3) There is no reason in principle why the Court could not make a declaration in relation to a period longer than six years ago.

(4) The Court has a "well founded expectation" that the Crown will "act in accordance with" and "respect the substance of" any declaration.[7]

(5) In Ford v SAS Trustee Corporation (2000) 98 IR 44; [2000] NSWIRComm 92 (Ford), the Court made an order related to a period some 11 years prior to the judgment.

1. There is a material distinction between Ford and the current case. The right sought to be resolved in Ford was the police officer's right to superannuation benefits at the time of the hearing. The calculation of those benefits depended upon his length of service. That in turn required a determination as to whether he was, for a substantial period, on leave without pay or special leave without pay which was sick leave. That was a question of fact. It did not involve a claim for the payment of money said to be due more than six years prior to the application. No limitation issue arose.
2. As I have already noted, the orders sought by the FBEU, despite being purportedly pursuant to the declaratory jurisdiction of this Court, are worded in terms that purport to "require" the respondent "to pay firefighters" the entitlements sought. The FBEU submits that does not amount to an application for an order that an employer pay an amount due under an award. Yet, it also submits that the Court would expect the Crown to comply with the terms of the declaration. Compliance would require the Crown to pay all firefighters who attended the courses overtime for the days they would have been rostered off-duty according to their default roster, including for courses conducted more than six years prior to the application being made.
3. Another way of looking at it, is that the FBEU seeks a declaration that money which the Act states is not recoverable, must be paid by the respondent. Looked at in that way, it is clear that the declaration would create a legal obligation which does not currently exist.
4. Even if it were accepted that the claim is not an application for the payment of money, it raises issues about the discretionary nature of declaratory relief.
5. First, some parts of the claim, in particular the claim relating to the course conducted in February 2019, would fail as being lodged out of time if prosecuted under s 365 of the Act. That begs the question about legislative harmony. The Act binds the Crown but there is nothing to suggest that the limitations in the Act are not available or are inapplicable to the Crown. Should relief restricted by one section of the Act be circumvented by relief granted under another section?
6. Second, the form of the declarations is generic. They do not identify the persons involved, provide evidence that all attendees at these courses were off-duty for some or all of the days on which they attended the course or of the circumstances in which the attendees came to be on the course. These matters would all need to be resolved before it would be possible to make orders in that form. Otherwise, declarations made in that form would require the parties to resolve those questions of fact before giving effect to the declarations. It is generally inappropriate to grant declaratory relief if it will be inconclusive in resolving the controversy between the parties.[8]
7. For reasons which will become clear it is unnecessary for me to resolve this issue to finality.

1. Fire and Rescue NSW is established under s 66 of the Fire and Rescue NSW Act 1989 (NSW) (F&R Act) as the administrative body enabling the Commissioner of Fire and Rescue NSW to exercise his functions under the F&R Act. For the purposes of these proceedings, the staff of Fire and Rescue NSW are employed by the respondent, the Industrial Relations Secretary.[9]

1. The primary issue is whether the specified firefighters, when attending their training courses, were "rostered off-duty" within the meaning of sub-cl 16.10 of the Award.

(1) an affidavit, admitted subject to objections, of Mr Chris Read affirmed on 6 August 2025, together with the annexures to that affidavit; and

(2) an affidavit, excluding a number of passages to which objection was taken and reading others on a limited basis, of Mr Travis Broadhurst affirmed on 18 June 2025, together with the annexures to that affidavit.

1. Following the determination of objections, Mr Read's evidence was essentially a summary of award conditions and developments and a description of progress by firefighters onto, what are perceived to be, more desirable rosters. Mr Read was not required for cross-examination.
2. In his affidavit, the applicant deposed that "at no time" was he provided with notice that he was to be transferred to the special roster. Nor was he given notice that he was to be transferred back to the 24-hour roster.[10]
3. During cross-examination the applicant was taken to an email dated 4 July 2019, and a screenshot from the roster system. He accepted that he had seen the email at about the time it was sent and that it advised him and other participants that they would be temporarily moved to the Special Roster "due to the nature of the course". He stated that he recalled the email at the time of making his affidavit.[11] Notwithstanding these concessions, he maintained that the email did not constitute notice of transfer to the special roster. His evidence continued:

"... Because my duty commander is the only person that is able to transfer me by the internal rostering system called SAM, and there was no indication on that, that that was the case for that to be done.

Q. Do you seriously say that in light of this email, that Fire and Rescue did not notify you that you would be transferred to the special roster to do this course?

A. No, this email went to every course participant, but I wasn't informed by my duty commander, my next in line in chain of command, of when I would be put onto that roster to attend that course.

Q. Did you raise any question or issue with anyone about this statement that you would be moved temporarily on to a special roster after you received this email?

A. No.

Q. Do you accept or not that what you say in paragraph 38 of your affidavit, that you are not provided with notice that you were to be transferred to the special roster, do you accept that that's incorrect?

A. No, I do not.

Q. You see in this email, you were told that the transfer to the special roster was going to be temporary. Do you see that?

A. Yes, I do.

Q. You understood when you saw that, that you would go back to your usual 24-hour roster after completing the course, didn't you?

A. Well, I certainly hoped that was the matter of the outcome, but like I explained, I don't - I'm not able to roster myself onto anything. It is up to the duty commander to do that. So, this email didn't result in any direct notification from my duty commander as to when I would be rostered onto D platoon and/or the special roster."[12]

1. Attached to that email were "Joining instructions" in relation to the course which participants were invited to review and raise any issues with the sender of the email. The joining instructions, at point 11, asked participants to liaise with their "Duty Commander to arrange stand-off dates and place [them] in the appropriate position in SAM". The applicant was also shown a screenshot from SAM (the internal roster system) of his roster during the Hazmat Course.
2. When asked whether he could recall seeing the screenshots before attending the course he prevaricated by saying he would have to search in SAM to see them. He then described the general practice. He said the inspector (his duty commander) would notify him verbally of when he would commence the course and finish it. If he needed further details, he could look it up on SAM. He could not recall if his duty inspector notified him, but agreed it was most likely he did but, he observed that "quite often they're on leave, so you could have been a different person on a daily basis"[13].
3. Finally, as to this event he agreed[14]:

"Q. It's most likely that someone with the power to change or determine your rosters told you the times of the course, isn't it?

A. Correct."

1. Mr Broadhurst agreed that the same circumstances were likely to have occurred in relation to the LSO Course.[15] He also agreed that that he applied to participate in each course. He did so to gain the HAZMAT qualification entitling him to an allowance, and to gain promotion to Leading Station Officer.[16] Further, he stated he could have withdrawn from either or both courses but, if he did, he would not have gained the qualification or the promotion.[17]

(1) an affidavit of Mr William Christopher Steven McNeill affirmed on 17 June 2025; and

(2) an affidavit of Ms Dimitra Irina Sophia Krouskos affirmed on 18 June 2025.

1. Neither witness was required for cross-examination.
2. Mr McNeill recounted his history of service and progression through the ranks of firefighters. At the time of giving his evidence he was employed as a Station Officer. His normal roster is the 24-hour roster.
3. He recounted the steps leading to his attendance at and completion of the LF Progression Course in 2019 as follows:

(1) In 2018 the respondent invited expressions of interest for attendance at the course.

(2) He was one of 600 applicants for 20 available places on the course.

(3) The program is the sole process for progression to Leading Firefighter rank.

(4) Applicants were provided with a study manual of, he estimated, about 5000 pages.

(5) After reading the manual, applicants were to advise the respondent that they were ready to undertake the aptitude test which, if passed would lead to admission to the LF Program.

(6) He passed the aptitude test in mid to late 2018.

(7) He recalled receiving an information pack about three weeks prior to the commencement of the course which advised the course details and that he would be placed on the Special Roster. He was not asked to agree to any transfer of work location or change of roster.

(8) The course was held over a two-week period from 11 February 2019.

1. Mr McNeill said that, had he not attended the course, in those two weeks he would have worked most or all of the nine days in his own business, Fired Up Gardens. He estimates he would have earned approximately the same amount as he is claiming in overtime payments from the respondent.
2. After successfully completing the course, he was promoted to Leading Firefighter, with the promotion being backdated to 4 September 2018 "due to completion time of the training modules and my submission of the 'Ready for Assessment' form".[18]
3. Around late April or early May 2019, he made a claim for overtime for the period he was on the course when he would otherwise have been rostered off according to his 24-hour roster. The claim was refused.
4. Mr McNeill also attended the 2021 Station Officer Progression Course. He provided an account in similar terms to the LF Progression Course, of the steps undertaken to participate in that course and the information provided to him by the respondent. He annexed as "WM-8" an information pack which contained information about the course and advised the "Time" to be "Special Roster" and specified the daily hours accordingly.
5. Subsequent to successful completion of the course he was promoted to Station Officer in about September 2021, but it was again backdated to January 2021, when he submitted his "Ready for assessment" form.
6. He did not make a claim for overtime because of the rejection of his previous claim. Again, he says he would have been rostered off for 10 of the days that he was on the course. He could have worked in his own business and earned approximately what he is claiming by way of overtime.
7. Ms Krouskos is a Senior Industrial Officer employed by the FBEU. In her affidavit she stated that she had reviewed the records of the FBEU and based on that review, was able to provide some background to the dispute between the parties leading to the present claims. She referred to a 2018 dispute which, after conciliation, was resolved by settlement. The dispute centred on the proper meaning of sub-cl 15.3 of the Award. Relevantly, the settlement confirmed that attendance at courses of the kind involved in these claims would be regarded as working time.
8. Ms Krouskos provided a copy of the relevant Commissioner's Orders which included notice of the terms of settlement of the dispute. She also recounted the existence of another dispute about a particular firefighter which led to a confidential settlement. Finally, she referred to amendments made to the 2023 iteration of the Award which she said provided an additional mechanism for a temporary transfer to a different roster.

(1) an affidavit, admitted subject to objections, of Mr Gregory Rankin sworn 23 July 2025;

(2) an affidavit, admitted subject to objections, of Mr Andrew Raymond Faunce affirmed 23 July 2025; and

(3) an affidavit, admitted subject to objections, of Mr Steven Perkins sworn on 23 July 2025.

1. The respondent's witnesses provided evidence of the general practices of the respondent with respect to inviting participants to attend training programs which has been noted already. Chief Superintendent Rankin was cross-examined by Mr Kennedy for the FBEU as to the limits of his knowledge to various periods and the distinction between periods in which he had observational knowledge and those which relied upon his review of records.
2. Chief Superintendent Faunce was cross-examined about the joining instructions annexed to his affidavit and was not able to assist regarding an inconsistency in the date of one document and the course to which he referred. He agreed that he had the authority to transfer firefighters to different rosters but said that it was not something he did.
3. Superintendent Perkins was cross-examined by Mr Bolwell for the applicant about the number of ranks above and below his and agreed he is a senior officer. He was asked[19]:

"Do you consult with the union about changing a firefighter's roster when you put them on a HAZMAT course, consistent with paragraph 26 of your statement? That's pretty close to a yes or no answer if I can suggest to you.

A. Well, I'd say that the implicit answer is in the joining instruction that we'd send to them, that if a firefighter wanted to have - attend the course, he attends the course. If he doesn't want to, he doesn't have to."

1. Finally, he was asked by Mr Bolwell[20]:

"Q. Is it fair to say, when you say '"are place[sic] on the special roster'," is that just simply an administrative arrangement? You are placed on the special roster.

A. That's a - a term that just describes how movements are done in the - the rostering system, called SAM, but that movement, it doesn't happen unless people are notified and they agree to the course that they're attending.

Q. Are you talking about joining instructions that people receive?

A. Yes."

1. The Superintendent was then cross-examined by Mr Kennedy for the FBEU, first about the accuracy of his recollection that he was placed on the special roster when he undertook the Hazmat Course in 1998. He was then asked to agree that he had knowledge of "each and every firefighter who did training" in the period 2016-2018. He agreed. It was then put to him[21]:

"Q. That is really just the statement of your personal belief based on your time working in Hazmat training in that period.

A. In between those times of 1998 and 2002, when I was a firefighter, I was aware of all training that was taking place. And then 2002 to 2005, I was an instructor purely on hazards materials, so I was aware of the training that was going on.

Q. Your reference to the practice there is just the statement of what you personally believed was happening based on your experience in that period of time."

A. Yes."

1. He was also asked about rostering a person on a course while they were on long service leave. He responded[22]:

"A. We would never ask anyone to work during their leave. But we do our best to program people who wish to attend the training course, we - we work our best to try and get them on a course. But if they can't we'll put them on the next course."

1. The evidence is generally uncontroversial, and the important facts are not in dispute, the matter turning on the construction of the Award. It was put to one witness for the respondent, Superintendent Perkins, that his answers about one matter were not truthful. He disagreed and I did not find him to be otherwise than a witness doing his best to answer questions honestly. No submission was ultimately made to the contrary. I had some misgivings about the applicant's reticence to acknowledge that he had notice of his placement on the special roster but, ultimately, he acknowledged he was aware and accepted his placement on that roster.

1. The Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 has 44 clauses, four of which have direct bearing on the issues in this matter. They are cls 8, 15, 16 and 27. It is convenient to set out the relevant parts of those clauses before dealing with the parties' submissions.
2. The arrangement of rosters clause includes the following:

8.2.1 Subject to subclause 8.9, Operational Firefighters shall work the roster in operation at the station/location to which they are permanently attached and this roster shall be known as their default roster. No default roster shall allow rostered shifts in excess of fourteen hours duration. Any proposed change at any location from one roster system to another, or to a new roster system, shall only occur following consultation between the Department and the Union. (Emphasis added.)

8.2.2 Operational Firefighters may, with the Department's agreement, elect to work alternative rosters to their default roster, provided that any such alternative roster:

8.2.2.1 must operate over an eight-week cycle and be drawn up and provided to both the Operational Firefighter and the Union not less than fourteen days prior to commencement;

8.2.2.2 must allow at least eight consecutive hours between the cessation of one rostered shift and the commencement of the next rostered shift;

8.2.2.3 must operate within the hours of the Operational Firefighter's default roster, provided that employees whose default roster is the Special Roster may apply to work alternative rosters that commence and cease up to two hours earlier or later than provided by the Special Roster;

8.2.2.4 must not allow split or broken shifts;

8.2.2.5 must not allow a reduction in the minimum Operational Firefighter staffing required at the station/location in question;

8.2.2.6 must not allow more than five days' work, or more than five rostered shifts, in any seven day period; and

8.2.2.7 must not average more than forty two ordinary working hours per week over the eight-week cycle.

8.6.1 The Special Roster System is a Monday to Friday day shift roster with the commencing and ceasing times for Monday to Thursday being 0800 hours to 1630 hours, respectively and for Friday 0800 hours to 1600 hours respectively. (Note: these are the terms of the alternative roster which trainees were placed on).

1. The training and staff development subclause includes:

15.3 Upon request, the Department will consider an application by an employee to attend a course which is appropriate, relevant and recognised by the Department but is not essential for promotion. If approval is granted by the Department for the employee to attend such a course, the employee shall be entitled to the provisions of Clause 16 of this Award.

1. The training course attendance entitlements clause includes:

16.1 The provisions of this Clause shall apply to employees who participate, with Departmental approval, in training program, examinations or assessments conducted by, on behalf of, or approved by the Department. For the purposes of this Clause, references to "training" or "course" shall be taken to include such examinations or assessments.

...

16.10 Attendance at Courses Whilst on Annual or Long Service Leave or Rostered Off Duty

16.10.1 Subject to approval by the Department:

16.10.1.1 Where an employee elects to attend a course whilst on annual leave or long service leave, he or she will be re-credited with the appropriate leave for the hours spent attending the training course.

16.10.1.2 Where an employee elects to attend a course whilst rostered off duty, he or she shall be paid at overtime rates for the hours spent attending the course.

16.10.2 Where an employee is directed to attend a course while rostered off duty, he or she may choose to either be paid at overtime rates or be credited with consolidated leave for the hours spent attending the course.

16.10.3 All travelling time shall be compensated in accordance with Clause 26, Travelling Compensation.

(Emphasis added.)

1. The notice of transfer clause, within the relevant period of the pleadings between 2017 and 2023, included:

27 Notice of Transfer

27.1 When an employee is to be transferred to work at a new location and/or to a different platoon, the Commissioner shall give the employee the following notice -

27.1.1 Seven (7) days notice when the transfer is within the same fire district or within the GSA and on the same platoon,

27.1.2 Fourteen (14) days notice when the transfer is within the same fire district or within the GSA but to a different platoon,

27.1.3 Twenty eight (28) days notice when the transfer is outside the GSA or the employee's current fire district, and such notice shall be confirmed in writing.

27.2 An employee may elect to waive, in whole or in part, the notice requirements of subclause 27.1. (Emphasis added.)

1. That same clause, from 2023 and after the relevant period of the pleadings, was amended as follows:

27 Notice of Transfer

27.1 An employee may only be permanently transferred, when the employee has provided by the employer the following written notice -

27.1.1 Seven (7) days notice when the transfer is within the same fire district or within the GSA and on the same platoon,

27.1.2 Fourteen (14) days notice when the transfer is within the same fire district or within the GSA but to a different platoon,

27.1.3 Twenty eight (28) days notice when the transfer is outside the GSA or the employee's current fire district, and such notice shall be confirmed in writing.

27.2 An employee may elect to waive, in whole or in part, the notice requirements of subclause 27.1.

27.3 An employee may only be temporarily transferred where the notice and time frame requirements outlined in clause 27.1 have been met and only in the following circumstances:

27.3.1 for the purposes of completion of a promotional course/program which cannot be completed at the employee's current work location and/or platoon and will result in additional pay to the employee on completion; or

27.3.2 for the purposes of completion of a course/program for the acquisition of specialist skills which cannot be completed at the employee's current work location and/or platoon and will result in additional pay to the employee on completion.

27.4 For the avoidance of doubt, no employee may be temporarily transferred to a new work location and/or to a different platoon/roster in any circumstances than that prescribed for in subclause 27.3 unless otherwise agreed between the Department and the Union. (Emphasis added.)

1. In his written submissions the applicant relied upon the resolution of the 2018 dispute as establishing the proposition that attendance at the courses was working time. That may be accepted. As I have noted, it was common ground and the employees were each paid ordinary time earnings for the time attending the courses.
2. He next referred to the 2023 variation of the Award and in particular new subclauses 27.3 and 27.4 which dealt with temporary transfer. It will be apparent from the juxtaposition of cl 27 in the 2017 to 2022 iterations and the 2023 iteration set out in [67]-[68] above that the later subdivides transfer into "permanent" and "temporary" and provides for them separately. Clause 27.2 remains unchanged.
3. The applicant submits that the respondent is estopped from denying the applicant's entitlement to overtime because the Commissioner's actions and representations (which I understand to be the Commissioner's Orders published following settlement of the 2018 dispute) led him to believe that his attendance would be treated as paid work. He relied on that to his detriment. However, it was treated as paid work. The real question is whether it should be paid at overtime rates.
4. On that issue the applicant submits that the Award did not authorise or permit transfers of any kind without giving the requisite notice and after consultation with the FBEU. The first obligation arises under cl 27 and the second under sub-cl 8.2.1. Nor did it otherwise comply with the limitations on alternate rosters specified in sub-cl 8.2.2.1.
5. There was no consultation with the FBEU. Therefore, the applicant's roster at the time of training was his default roster, not the special roster as submitted by the respondent.
6. The applicant, in advancing his construction of the Award, relied on the following principles from Police Association of NSW v Commissioner of Police, NSW Police Force (Police Association):[23]

"The interpretation of an award begins with a consideration of the natural and ordinary meaning of the words used, with the aim of discerning their objective meaning.

... They are 'to be construed as "practical" instruments that will apply to the working conditions known to employers and employees'. ... and endeavouring to give it a meaning consistent with the award's purpose and the general intention of the parties to be gathered from the whole award and its context.

The relevant context includes the whole of the text of the award, the award's industrial context and purpose as well as the legislative background in which it was made and intended to operate within. Relevant context can include a consideration of the history and subject matter of the award, as well as the circumstances in which it was made ..."

The subjective intention of the parties to the award are not relevant. Instead, 'the process of construction must direct attention to the words that are actually used. Expressed intention is to be gathered from the text of the instrument in light of context and purpose. There are limits on the extent to which the resolution of questions of construction may be driven by reference to history and context'.

Although context is significant, the construction of an award must ultimately be consistent with the objective meaning of its language. As stated by Wheelahan J in King v Melbourne Vicentre Swimming Club Inc: "[t]he inquiry is directed to the proper construction of what the instrument says, and not what it was meant to say" ...

Accordingly, great care must be taken in relying on past industrial practices as the basis of a 'common understanding' as an aid to construction. Past practices cannot be substituted for the terms of the instrument. They are no more than part of the context in which the text of the instrument is to be construed. For this approach to be taken, 'there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning'."

1. In its written submissions the FBEU advanced that training courses are primarily conducted away from a firefighter's permanent station. This led them to temporarily change their work location. Clause 27 deals with permanent transfers but temporary transfers were not contemplated by the Award.
2. Clause 16 of the Award is clear. An employee who attends an approved training course is entitled to the benefits of cl 16. Subclause 16.10 provides for payment to be at overtime rates in the nominated circumstance. The relevant circumstance in this instance is attendance while off-duty.
3. Underpinning the FBEU's submissions is that employees have no discretion about attendance at a promotional course or one for a particular qualification. That is on the basis that promotion or qualification cannot be otherwise achieved.
4. Clause 8, the FBEU submitted, is intended to provide an exhaustive scheme of rostering for firefighters. In that regard it points to sub- cl 8.2.5 which allows an Operational Firefighter who is working an alternative roster to be returned to their default roster within 14 days of their request. Such a right is inconsistent with the respondent having a separate and overarching right to change an employee's roster as it would render an employee's right meaningless.
5. Clause 27 provides for permanent transfers. The provision does not allow for temporary transfers, and in any event, no notice was given by the respondent on the evidence before the Court. Employees attending courses away from their normal work location remain substantively attached to their permanent location and work their default roster. They are therefore entitled to overtime if they would be rostered off in accordance with that roster.
6. The FBEU also relied upon the agreement struck following the 2018 dispute and incorporated in the Commissioner's Orders related to that dispute. The agreement provides that approved attendance at training programs will be considered working time and paid accordingly pursuant to cl 16. The only part of cl 16 which deals with payment is sub-cl 16.10 which provides for overtime.
7. As to award interpretation, the FBEU submitted the general principles of the construction of industrial instruments are well settled and included consideration of the following:

(1) the natural and ordinary meaning of the words used;[24]

(2) the meaning intended by the draughters;[25]

(3) the assumption that the draughters were not lawyers and are more concerned with the workplace understanding of the instrument rather than with legal jargon and niceties;[26]

(4) a sensible industrial outcome, avoiding strict, narrow or pedantic approaches;[27] and

(5) construction in light of historical context and purpose, drawing reference to notions of consistency and fairness, and focusing on the mischief remedied by the provision.[28]

1. The FBEU particularly drew attention to the principle in George A Bond & Co Ltd (in liq) v McKenzie for the construction of awards:[29]

"I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

1. Reference was also made to the recent decision of Vice President Chin J in Police Association at [13]-[18].
2. Finally, as to the principles of declaratory relief, the FBEU referred to the decision of Gibbs CJ in Forster v Jododex Australia Pty Limited[30] for the proposition that the power to make a declaration is "almost unlimited". It also referred to Ambulance Service (NSW) v Health Services Union East,[31] T v Commission for Children and Young People[32] (T's Case) and to draw the following principles:

(1) the words "in relation to" are broad and frequently used to "permit courts to consider issues that are connected with an application";

(2) the word "matter" is also broad, taken to mean "the justiciable controversy between the parties and comprises the substratum of facts and claims constituting the controversy between them";

(3) superior courts have inherent power to grant declaratory relief and it' is undesirable to fetter their discretion;

(4) the power is confined by the boundaries of judicial power;

(5) it must be directed to "the determination of legal controversies" rather than abstract or hypothetical questions;

(6) the applicant must have a "real interest"; and

(7) relief should not be granted if the question is purely hypothetical.

1. As to these propositions, I observe that points 3 and 4 above are correct in so far as they relate to superior courts of unlimited jurisdiction. In T's Case Haylen J noted that the Industrial Court is a statutory court of limited jurisdiction and its power to grant declaratory relief is subject to those limitations.[33]

1. The respondent submitted that it has followed the practice of removing employees to the special roster for the purposes of multi-day training courses for 25 years. Attendance has always been paid at ordinary rates. The practice was not the subject of objection by any employee until 2019. The years in which there was no objection spanned multiple versions of the Award.
2. Clause 16.10 provides for overtime in two circumstances. The first is when an employee is directed to attend a course while rostered off-duty. Neither applicant contends that employees were directed to attend these courses. The second is under sub-cl 16.10.1.2 that when subject to approval by the Department, the employee elects to attend while rostered off-duty. This involves the respondent approving the employee's election to attend while rostered off-duty.
3. Whether an employee is "rostered off-duty" is a question of fact to be determined by reference to the roster that actually applies to the employee. In these instances, the employees were rostered and attended according to the special roster. It does not matter whether the employer was permitted to use the special roster. As a matter of fact, it did, and the employees attended knowing that they were rostered accordingly.
4. Reliance was placed on the history of cl 16.10. Prior to 2008 employees were only entitled to overtime, relevantly, when directed to attend a course while rostered off-duty. They could elect to attend but were only entitled to consolidated leave. The 2008 Award introduced an entitlement to overtime where an employee elected to attend a course while rostered off-duty but imposed a requirement that the respondent approve attendance in such circumstances. The context indicates approval was intended as a safeguard for the employer. It would be inconsistent with that intention for approval to be taken to be given by inadvertence: Industrial Relations Secretary v Fire Brigade Employees' Union of New South Wales (IR Secretary v FBEU).[34]
5. The reference in the Commissioner's Orders containing the agreement reached following the 2018 dispute does not assist the applicants. The reference to "paid accordingly" cannot be read so as to overcome any preconditions to payment prescribed in sub-cl 16.10.
6. Subclause 8.2 does not prevent temporary and consensual placement on a special roster. The second part of sub-cl 8.2.1 places an obligation on the respondent in relation to the "roster system" in place at a particular location. The respondent submits that neither part of the subclause is directed at a particular roster of a particular employee as opposed to the "roster system" at a station or location.
7. The Award leaves it open to the respondent to make a consensual arrangement with an employee by which the employee is temporarily placed on a special roster for the purpose of completing relevant training. The Award is not a code with respect to the respondent's powers of deployment of staff.[35]
8. The applicants' construction of the Award would mean that the respondent could not conduct multi-day training programs without incurring substantial overtime costs. There is no coherent industrial justification for requiring the respondent "to pay overtime to employees who voluntarily participate in a training program for their benefit having been informed they will be placed on a special roster to do so".
9. Finally, the respondent submitted that Mr Broadhurst had not suffered any financial loss. The correct way to approach any calculation of loss is to compare what the applicant earned while attending the training program and what he would have earned had he worked his normal roster. No difference has been demonstrated.
10. In addition to the general principles identified by the applicants, the respondent also relied on Deckers v Minda Home Inc (Referral of Questions of Law Case) (Deckers),[36] quoted in Glover v Tip Top Bakeries (Glover):[37]

"Where a provision has appeared in an award or succession of awards for a lengthy period of time and been acted upon without challenge by parties in a certain manner, then if the award is reasonably capable of bearing such a meaning the court ought, in the normal course, to adopt it as its proper meaning. ... [I]f a custom is proved which is not necessarily inconsistent with an award, such award may be treated as having tacitly sanctioned the custom, and should be interpreted in the light of the custom..."

(1) Custom and practice cannot override the Award. Subclause 8.2.2 is mandatory, and the respondent may only alter an operative roster by returning an employee to their default roster in accordance with sub-cls 8.2.5 and 8.2.6, neither of which apply in this context.

(2) As to the respondent's submission that the applicant was not entitled to overtime because his attendance (on that basis) was not approved, the respondent scheduled the course and approved the applicant's attendance.

(3) The phrase "subject to approval" in sub-cl 16.10 added in the 2008 iteration of the Award had no substantive effect but was for clarity only.

(4) The changes to the 2023 iteration of the Award created a new power which did not previously exist.

(5) The suggestion that there had been no objections to the respondent's practice is wrong.

(6) It does not matter that the respondent believed the applicant had been transferred to the special roster. The applicant believed otherwise. Belief is irrelevant. The issue is whether the Award permitted the change.

(7) It is an exaggeration to say that the applicant's construction of the Award would make training impossible.

(8) The authorities relied upon are inapposite and can be distinguished.

(a) Deckers and Glover do not support the proposition that custom and practice can override clear, prescriptive award terms.

(b) Director of Public Prosecutions No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26- the principle for which the case is cited does not apply in this case. The changes introduced in 2014 were novel concepts.

(c) IR Secretary v FBEU can be distinguished because that case dealt with standing down firefighters on short notice emergency deployments and not rostering arrangements for scheduled training.

1. The reliance by the respondent on Deckers is misplaced. That case was decided in 1978 under the contemporary South Australian statutory scheme. The cases relied upon are all New Zealand cases and there does not appear to be any case in this Court or its predecessor courts and tribunals which apply that principle.
2. The FBEU concedes that the world has moved on since 1978, relying upon the decisions of Gray J in Australian Liquor, Hospitality and Miscellaneous Workers' Union v Prestige Property Services Pty Ltd[38] and Wheelahan J in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd (t/as Yarra Trams)[39] to support the proposition that a common understanding may inform the construction of an industrial instrument but great caution is to be taken when relying upon such an understanding. There is no common understanding established in this case.
3. Contrary to the respondent's submission, the words "subject to approval by the Department" in sub-cl 16.10.1 attach to the employee electing to attend the course, not to the words "whilst off-duty". Two reasons are advanced in support. First, the meaning attributed by the respondent does not accord with the plain words of the provision. Second, the award provision prior to the change made in the 2008 Award introducing the words "subject to approval of the Department" provided for compensation whether the employee elected to attend or was directed to attend the course. The form of compensation was different. An employee electing was not entitled to overtime, while the directed employee was entitled to choose to be paid overtime or consolidated leave.
4. The respondent's submission does not deal with the obligation stated in the Orders that approved training would be paid in accordance with sub-cl 16.10. The argument was that the parties intended there would be a residual discretion for approval of attendance on rostered days off. If there was such an intention it would have been stated.
5. The submission that the respondent had the power to temporarily change the roster of an employee should not be accepted. First, because the Award is indisputably a lengthy prescriptive instrument. To accept the respondent's argument would be to accept that a firefighter and the respondent could agree to work any roster at any time at any place irrespective of the terms of cl 8. That does not make industrial common sense.
6. Second, because the parties have been conducting themselves for an extensive period on the basis that cl 8 covers the field in relation to rosters.
7. Third, it ignores cl 27 which allows permanent transfers but not temporary transfers. That right was only introduced in the 2023 Award. That tells against there being some right under the previous awards.
8. The submission by the respondent that the 24-hour roster is not an approved alternate roster because it does not operate within the span of hours of the applicant's or Mr McNeill's default roster is incorrect. The default roster is the 10/14 roster, operating on 12-hour rotating shifts over a 24-hour period. As I do not need to resolve this issue, I will not express a final view on it. I will simply observe that the default roster is defined in sub-cl 8.2.1 and the roster in place at the station/location to which they are permanently attached. That may be the "Standard 10/14" roster - cl 8.3, the "Back to Back" roster - cl 8.4, the "Overlap" roster - cl 8.5 or even the "Special Roster" - cl 8.6. In the case of the two firefighters who gave evidence, it was the 24-hour roster because that was the system in operation at the location to which they were permanently attached.
9. I note in that regard that the Frequently Asked Questions, issued in 2015, state[40] that the 24-hour roster is an alternate roster, not a default roster, even if all employees at a particular station work that roster. While that may be the understanding of the parties, it is not clear, on the face of the Award, that that continues to be accurate. It certainly does not sit easily with the definition of "default roster" in sub-cl 8.1.
10. The Award does not use, let alone define, the term "span of hours". Subclause 8.2.2.3 simply refers to the "hours of the Operational Firefighter's default roster". It may mean the hours between the approved start and finish times or, as the FBEU submits, the hours within which shifts may be worked under that roster.

1. As I have already observed at [61] above the evidence was generally uncontroversial, but I make the following findings of fact:

(1) The firefighters who gave evidence:

(a) were invited to express interest in attending the specified training programs;

(b) expressed interest in doing so and completed the necessary preliminary study to qualify them for attendance;

(c) were assessed as suitable to attend;

(d) were invited to attend;

(e) were informed at that time that they would be placed on the special roster for the duration of the course and invited to raise any issues with the person inviting them to the course;

(f) asked to liaise with their duty commander about the change of roster;

(g) knew that it was open to them to decline the invitation or change their mind at any time;

(h) proceeded to undertake and successfully complete the course;

(i) were thereby qualified for and received benefits by way of allowance and or promotion; and

(j) were then returned to their permanent stations.

(2) The experience of the two witnesses accorded with the respondent's usual practice in relation to such training programs.

(3) The firefighters were paid at ordinary time rates for the period they attended the various courses.

(4) There is no inconsistency with the Commissioner's Orders following the 2018 dispute settlement because the time attending the courses was treated as time worked.

(5) I do not accept the FBEU's submission that employees have no discretion to attend training programs. Even if it be accepted that it is the only means of advancement, about which there is no evidence, it remains for the employee to decide if they wish to seek advancement on these terms, i.e. undertaking study on full pay for the purpose of advancement. It may be an obvious choice for many but not necessarily for all.

1. The authorities on construction of awards have been comprehensively set out in the submissions of the parties. In this case the issues are resolved by giving effect to the ordinary grammatical meaning of the words used in the Award in the context of the Award read as a whole. Where it seems that infelicity of structure arises, I approach the resolution of it by attempting to interpret the Award as a coherent structure. I note I have not been persuaded that the authorities referred to by the respondent and summarised in [94] above are sufficiently well established in this jurisdiction to be decisive, particularly when there is a paucity of evidence as to the history of disputes, or absence thereof, about the relevant clauses.

1. The applicant and the FBEU submit that the Award does not permit the respondent to place employees on the special roster for the purposes of attending approved training programs. The first proposition advanced in support is that there is no specific provision which permits a temporary transfer from one roster system to another. That is to be understood in the context of the Award being a highly prescriptive document, which I can accept for present purposes, and therefore a code, which I do not accept.
2. In IR Secretary v FBEU, the Court of Appeal (Basten, Leeming and White JJA) upheld an appeal by the Secretary against a decision requiring the payment of overtime to firefighters deployed to the Northern Rivers area of NSW to undertake emergency flood rescue work. An important issue in the case was the ability of the respondent to direct the employees to cease work. The FBEU had argued that the Secretary had no power to dismiss an employee from duty or direct that they cease duty. Basten JA said:

"... However, even total silence on the point would be inconclusive; the award does not seek to codify the powers of the employer to deploy staff; rather it is primarily concerned with identifying the financial consequences for the exercise of powers and imposing some procedural constraints." (Emphasis added.)[41]

1. The question then is whether there is some prescription in the Award which prevents the respondent from placing an employee, with their agreement, on the special roster temporarily for the purposes of attending an approved training program?
2. The applicant first refers to cl 27 of the Award which prescribes periods between seven and 21 days of notice for transfer to a new location or to a different platoon. It permits employees to waive the notice requirements. Although reference was made to these notice requirements, no submission was made that, in any particular case, no notice or inadequate notice was given. In any event, the facts I have found allow me to conclude that any inadequacy in the notice period was waived by the employee concerned.
3. The FBEU submitted that cl 27 was confined to permanent transfers.[42] On its face the clause contains no such restriction. There is no modification of the word "transferred", and I was not taken to any authority to support that construction. On the ordinary grammatical meaning of the words used, cl 27 permits the employer to transfer employees to a different location or a different platoon. The constraints upon any such decision are set out in the clause and, as I have found, there is no basis to conclude those constraints have not been met.
4. Both the applicant and the FBEU rely upon the variation of cl 27 in the 2023 iteration of the Award to submit that the variation makes clear that the earlier versions of the Award did not permit temporary transfers. There may be many reasons for such a variation, not least being removing a source of dispute. However, the authority to which I've referred supports the position that silence in the Award does not mean the employer's authority to deploy staff is diminished. The question is whether the Award by its terms places restrictions or consequences on the exercise of that authority.
5. Far from being a provision which proscribes temporary transfers, cl 27 facilitates, and imposes constraints, on all forms of transfer.
6. The applicant next pointed to sub-cl 8.2.1 and submitted that it requires consultation with the FBEU before a change of any employee's roster can occur. That subclause, however, deals with a proposed change to a roster system from one system to another or to introduce a new system at a location. It is not concerned with an individual employee's change of roster.
7. These applications do not concern an application for a change of roster system at any particular location. They concern employees electing to undertake training at a location away from their permanent station. For the purpose of giving effect to that election they were transferred to that location for the duration of the course. They worked the nominated roster and were paid accordingly. No further payment is required.
8. The only other possible constraint is the requirement for notification to the FBEU before giving effect to an employee's election to work an alternative roster as required by sub-cl 8.2.2.1. That was not specifically argued by either the applicant or the FBEU. That may be because the circumstances here do not relate to an employee's election to work an alternative roster. However, for completeness I observe that the circumstances here are governed by cl 27 not sub-cl 8.2.2.

1. The FBEU points to the Commissioner's Orders and the requirement to pay in accordance with cl 16 of the award. It then submits the only provision for payment is found in sub-cl 16.10 which provides for overtime. However, it provides for overtime only in three nominated circumstances. None of those circumstances apply here. As I have found, the employees were transferred for the duration of the course in accordance with cl 27. They were paid ordinary time rates in accordance with the roster applicable to them at that time.

1. For the above reasons the applications fail. I note that the respondent indicated that it would not seek a costs order in the event it was successful. Mr Kennedy and Mr Bolwell reserved their positions. I have had regard to the time of year in making Order 3 below. Accordingly, I make the following orders;

(1) The applications by Mr Broadhurst for orders for the payment of money and civil penalty orders are dismissed.

(2) The application by the FBEU for declarations is dismissed.

(3) Any application in relation to costs or other residual matters should be advised in writing within 21 days of the date of the handing down of this judgment and directions will be made accordingly.

05 February 2026 - 05/02/26 - Corrected the 'Date of orders' and the 'Date of decision', removing '04 January 2026' in both and entering in lieu thereof '04 February 2026'.

[1] Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 sub-cl 8.2.1.

[2] Affidavit, Andrew Faunce 23 July 2025 at [17]-[19] and Annexure "A"; Affidavit, Gregory Rankin 23 July 2025 at [18] and [22]-[24]; Tcpt 26 August 2025 at 33(9)-(34) and 34(1)-(26); Affidavit, Steven Perkins 23 July 2025 at [16], [18] and [26] and Annexures "A" - "E".

[3] Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 sub-cl 8.6.

[4] Affidavit, Andrew Faunce 23 July 2025 at [14]. See also Affidavit, William Christopher Steven McNeill, 17 June 2025 at [26]-[27]. [42] and [44].

[5] Affidavit, Andrew Faunce 23 July 2025 at [23] and Annexure "A"; Affidavit, Gregory Rankin 23 July 2025 at [28]; Affidavit, Steven Perkins 23 July 2025 at [29]-[30]; Affidavit, William Christopher Steven McNeill, 17 June 2025 at [29]-[30], [45] and Annexure "WM8". See also [36]-[41] below.

[7] Citing Minister for Home Affairs v AFX17 [2020] FCA 903 at [10], citing Franklin v The Queen (No 2) [1974] 1 Q.B. 205 at 218 (Lord Denning MR). See also Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at [112] (Hayne J).

[8] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 582 (Mason CJ, Dawson, Toohey and Gordon JJ) and 596 (Brennan J); Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52] (Gaudron J); Chapman-Davis v State of New South Wales (2015) 90 NSWLR 533; [2015] NSWIC 10 at [24].

[9] Fire and Rescue NSW Act 1989 (NSW) s 70.

[10] Affidavit, Travis Broadhurst 18 June 2025 at [38].

[11] Tcpt 26 August 2025 at 15(33)-16(22).

[12] Tcpt 26 August 2025 at 16(29)-17(9).

[13] Tcpt 26 August 2025 at 17(33)-18(6).

[15] Tcpt 26 August 2025 at 19(21)-(42).

[18] Affidavit, William Christopher Steven McNeill, 17 June 2025 at [38].

[19] Tcpt 26 August 2025 at 53(44)-(49).

[20] Tcpt 26 August 2025 at 56(15)-(22).

[21] Tcpt 26 August 2025 at 58(9)-(10).

[22] Tcpt, 26 August 2025 at 58(49)-59(2).

[23] [2025] NSWIC 2 at [13]-[18].

[24] City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 553 at 378.

[25] Kucks v CSR Limited (1996) 66 IR 182 at 184.

[27] Ibid; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [96] (Kirby J).

[28] Short v FW Hercus Pty Limited (1993) 40 FCR 511; [1993] FCA 72 at 517 (Burchett J, Drummond J agreeing); New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [21]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47].

[29] [1929] AR (NSW) 498 at 503-504 (Street J).

[30] (1972) 127 CLR 421; [1972] HCA 61 at 435.

[31] [2014] NSWIRComm 4 at [8].

[32] [2008] NSWIRComm 21 at [17] and [19].

[34] [2020] NSWCA 46 at [23].

[35] IR Secretary v FBEU at [24] (Basten JA).

[36] (1978) 45 SAIR 69 at 84.

[37] (1984) 8 IR 308 at 311.

[38] (2006) 149 FCR 209; [2006] FCA 11 at [44].

[39] [2021] FCA 1377 at [63].

[40] Affidavit, Andrew Faunce 23 July 2025 at [31] and Annexure "E" at [4.1].

[41] IR Secretary v FBEU at [24]; see also Leeming JA at [44], [46] and [47] and White JA at [100], [102], [105] and [106].

[42] FBEU Outline of Submissions at [9].