Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales

Approach to construction

1. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Awards are industrial instruments: s 8 of the Act.
2. The powers conferred on the Commission by s 175 are "for the purpose of [the Commission] exercising its functions". The powers do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57]-[58].
3. The principles of award construction were summarised by the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 as follows: "21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.' 23. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038."

The proper construction of the no extra claims clause

1. The first question to resolve is the grammatical meaning to be given to cl 43.1 of the Permanent Award, which is reproduced at [9] above. FRNSW contended that the clause should be construed as precluding, during the term of the award: 1. extra wage claims; 2. claims for improved conditions of employment or demands made with respect to the employees covered by the award; and 3. the institution of proceedings, claims or demands concerning wages or conditions of employment with respect to those employees in the Industrial Relations Commission or any industrial tribunal.
2. Further, FRNSW submitted that in the second category of claims the words "with respect to" should be read as meaning "about", rather than demands "of" the employees covered by the award. On this construction, "demands made with respect to the employees" would be interpreted as being limited to demands for "improved conditions of employment" for those employees.
3. The FBEU submitted that the construction advanced by FRNSW: 1. would treat "or" as conjunctive rather than disjunctive, which is both grammatically incorrect and contrary to the ordinary canons of construction; 2. would rob the words "demands made with respect to the employees" of any meaning; 3. would result in the clause being directed solely at employee claims, which is inconsistent with the reference in the clause to "the parties".
4. I accept the first of the FBEU's submissions. On a proper grammatical construction of the clause, the comma that appears after "extra wage claims" is connected to the disjunctive "or" appearing after "conditions of employment". This construction is also consistent with the balance of the clause in its reference to "no proceedings, claims or demands". Again in that phrase, the comma relates to the "or" which immediately follows.
5. The second of the FBEU's submissions is also correct, noting its premise that FRNSW's construction of cl 43.1 (namely, that the "demands" must be for "improved conditions of employment") is adopted. It is difficult to discern a practical difference between a "claim" for improved conditions of employment and a "demand" for the same. It is equally difficult to comprehend why the drafters of the award would have used two quite different phrases congruently (albeit separated by an "or") if each was meant to convey effectively the same meaning.
6. I also accept the third of the FBEU's submissions. If the first part of the clause is read as being limited to claims for extra wages, or claims or demands for "improved conditions of employment", it is hard to conceive of a situation where it will apply to limit claims or demands that might be made of employees by FRNSW. The reference in the clause to "parties" clearly demonstrates an intention that it imposes limitations on both the employees and FRNSW.
7. There was some debate in the proceedings as to whether in context the words "with respect to" call for some particular reading where the word "of" might otherwise be used. That is, if the clause intended to capture demands made "of" employees, why was the language "with respect to" used?
8. The FBEU submitted that the words "with respect to" are appropriate in context. They capture not only the demands to which the clause refers, but also extra wage claims and claims for improved conditions of employment. The word "of" would make no sense in that context. On that basis, the words "with respect to" should be seen as synonymous with "concerning".
9. This construction anticipates that the phrase "with respect to the employees covered by the award" qualifies the references to "extra wage claims", "claims for improved conditions of employment" and "demands". I am not persuaded to that view. Extra wage claims and claims for improved conditions of employment must necessarily relate to the employees covered by the award. It is conceivable, though, that employees may make demands for change that are neither wage claims nor claims for improved conditions of employment. Demands may similarly be made by FRNSW for changes. The use of the term "with respect to" should be understood as anticipating demands made for or by the employees and of them.
10. On a proper construction cl 43.1 is to be read as providing that, during the term of the award, neither party will: 1. make any: 1. extra wage claims; 2. claims for improved conditions of employment; or 3. demands with respect to the employees covered by the award; or 1. institute proceedings, claims or demands concerning wages or conditions of employment with respect to those employees before the Commission or any other industrial tribunal.
11. On this construction, a demand made of employees by FRNSW to relinquish or reduce any existing entitlements, or to change the duties they perform or the manner in which those duties are performed in a way not anticipated by the award, would be captured by cl 43.1 and be impermissible.
12. The question then becomes whether a direction that firefighters participate in the PAD Program would be a demand of that kind.

What is being asked of the employees?

1. The FBEU read two statements by Michael Nairn, who is a Leading Firefighter with FRNSW and was then President of the FBEU. In a statement dated 17 August 2020, Mr Nairn deposed: "10. The PAD proposal will involve firefighters responding to incidents to administer medical care particularly cardiac arrests, before ambulance officers arrive on the scene. This proposal by FRNSW is based on the MoU between FRNSW and NSW Ambulance. Fire trucks that are closer to an incident will be called upon before Ambulance. This will occur in metro and regional areas, in both the permanent and retained workforces. 11. FRNSW has indicated that this new work will be conducted with the existing Automated External Defibrillators by firefighters. Firefighters have to be trained in CPR. I am not aware of any additional training that will be provided or additional resources to our members. Existing Basic Life Support (BLS) training (which includes a CPR module) is said by [FRNSW] to be sufficient training for these incidents. 12. I have always understood that those defibrillators on the fire trucks were primarily for the use on firefighters who were experiencing cardiac arrest. I recall that they were put on the trucks in about 2004. They were not designed to be used on the general public. 13. Firefighters currently attend what we call 'assists', which is when we assist another agency at an incident. In the case of medical work it is about assisting ambulance officers who are already on scene with an incident. We would call this an 'ambulance assist' and it might involve lifting a patient. For the most part an ambulance assist is about needing more people at the incident to help with a physical aspect, but it does not involve firefighters undertaking any medical work. … 15. These Ambulance Assists require that NSW Ambulance is already on the scene. Firefighters do not perform medical work but are assisting ambulance officers with their work. Firefighters are not supposed to move or lift a patient unless they have been assessed by an ambulance officer. … 22. The [PAD Program] proposal intentionally requires firefighters to arrive at the scene prior to [an] ambulance. Firefighters will only be called if it is anticipated that they get there before the ambulance. Firefighters will not be called if an ambulance has a quicker lead time. This has never been deliberately done before and is new work. 23. …BLS allows members to deal with medical response only as a secondary possibility such as a motor vehicle accident where the primary concern is nearly always fire and/or entrapment of a victim. 24. I do not believe that BLS can be compared to the extensive training of ambulance officers and does not equip members to conduct clinical assessments. I also know that many firefighters only have expired or non-current BLS qualifications. 25. I have concerns that the lack of adequate training will put firefighters at risk of making poor medical/clinical decisions. 26. The only FBEU members who currently undertake any form of medical work are Community First Response (CFR) stations. These stations are [remunerated] and trained specifically for this role. CFR is therefore an acknowledgement that a particular station will be required to undertake the ambulance service's work and with that comes a higher level of training and skills maintenance along with compensation."
2. In a statement dated 9 October 2020 Mr Nairn further deposed: "14. I remain concerned that the PAD Program proposes to change how we work which will have an impact on community expectations. At the moment we may respond to a medical issue which is secondary to our primary response. …"
3. Mr Nairn stated that since he joined NSW Fire Brigades (as FRNSW was then known) in 2001 he has only performed CPR on one person.
4. Mr Drury was also called by the FBEU to give evidence. He stated that since joining NSW Fire Brigades on 22 October 1999, he has "never been required to respond to an incident to provide life saving medical treatment". [3] He opined that a requirement for him to do so would be a new responsibility.
5. The premise of FRNSW's position is that participating in the PAD Program, and requiring firefighters to undertake the duties and responsibilities set out in the MOU, is not an extra claim as it involves nothing more than an extension of the duties currently performed by firefighters.
6. Mr Fewtrell deposed: [4] "30. All Firefighters employed by FRNSW receive training in Basic Life Support (BLS) including Cardiopulmonary Resuscitation (CPR). Achieving competency in this training is a prerequisite for completing Recruit Training and being appointed as an operational firefighter capable of responding to calls for emergency assistance without restriction. This has been the situation for a significant period of time and the training and work is specifically comprehended within present classifications and rates of pay. All Firefighters are required to hold and maintain the First Aid qualification as a condition of their employment. … 31. Every FRNSW appliance is fitted with an Automated External Defibrillator (AED). AED's are designed for use on anyone and although originally introduced for Firefighter safety they have been used routinely on members of the public. … 40. Firefighters already use AED's to resuscitate people injured in fires and during rescue, hazmat and other incidents in addition to any firefighters who may require resuscitation. Fire crews are also often approached by passers-by to use the AED to commence resuscitation prior to the arrival of an ambulance on members of the public who have collapsed. Between 1 January 2017 and 1 September 2020, for example, FRNSW AED's were applied in 173 instances and in only a small number of cases was the patient a Firefighter. 41. The purpose of the [PAD Program] is to enhance the capacity of the emergency services to save the lives of people in sudden out of hospital cardiac arrest in situations where a fire appliance can arrive at the scene more speedily than an ambulance. The situations have been limited to four discrete circumstances and only four types of incident as detailed in Schedule 1 of the MOU. 42. The [PAD Program] does not propose a higher level of first aid work than is normally required and routinely provided by FRNSW Firefighters. There is, therefore, no need for any increased or new training or skills and it does not involve any new process."
7. One of the documents in evidence was titled "FRNSW Out of Hospital Cardiac Arrest", in which FRNSW responded to questions which appear to have been posed by the FBEU. It included the following: [5] "4. How does the proposal fit in with the 'no extra claims' clause of the award? The Union's position is that this is a new type of incident, which is changing the nature of firefighter's [sic] work. Answer: As advised this issue is complex and we have sought Counsel's advice. As soon as we are able we will respond to this question. Our preliminary view is that our firefighters have significant training and skills in Basic Life Support (BLS) and currently apply those skills at incidents. Our view is that we are broadening the scope of the application of these skills."
8. There was some conflict in the evidence as to whether firefighters currently have the skills and capabilities to discharge their responsibilities under the PAD Program. Mr Fewtrell described some of the Basic Life Support ("BLS") and other first aid training undertaken by firefighters. Mr Nairn deposed that 17% of firefighters do not currently possess the core competencies. There was at least some consensus that perhaps not all firefighters had current qualifications, although Mr Fewtrell stated that steps were being taken to address this.
9. Further, there was a disagreement between Mr Fewtrell and Mr Nairn as to whether the training described by Mr Fewtrell was adequate to meet the requirements of the PAD Program. In the absence of the evidence having been tested in cross-examination, and even assuming that firefighters receive that training, it is difficult to form a definitive view on this question.
10. However, even were it to be accepted that the duties and responsibilities required of firefighters under the PAD Program were within their skills and capabilities, that again is not a complete answer. The question is not so much whether competency exists, but whether firefighters have in the past been required to utilise such competency in the manner foreshadowed by the MOU. A new use of an existing competency may still be characterised as an "extra claim".
11. The evidence of Mr Drury and Mr Nairn was that medical response is secondary to a firefighter's primary duties and responsibilities. The effect of the PAD Program is that they will be, for all intents and purposes, medical first responders. I note in particular that the MOU provides that: 1. firefighters will be only be dispatched to "immediately life-threatening medical emergencies where an AED is clinically-indicated" (Sch 1); 2. firefighters must assess the situation and "apply immediately life-saving interventions" including the utilisation of an AED if indicated (Sch 1); 3. apply those interventions without a "suitably qualified and equipped health professional" being present (Sch 1); 4. in particular, do so "prior to the arrival of NSW Ambulance personnel" (cl 1.1, definition of "Program"), having been dispatched on the basis that they would arrive prior to a "NSW Ambulance resource" (Sch 1); and 5. on the arrival of NSW Ambulance personnel, be able to conduct a handover by providing a summary of the patient's condition and the treatments provided (Sch 1).
12. In the context of these provisions I accept the following submission of the FBEU: [6] "The essence of the change is to require Firefighters to respond, as first responders, to emergencies of a purely medical nature, for the express and entire purpose of providing medical aid."
13. The evidence also demonstrated that FRNSW estimated that its involvement in the PAD Program would result in an additional 14 calls per day for fire crews to respond to a cardiac incident. In some respects, this may not seem to be significant in the context of what Mr Nairn described as a workforce of 6000 firefighters across 330 stations. However, it is necessary to consider this estimate in light of Mr Fewtrell's evidence that across presumably the same workforce AEDs had been applied on 173 occasions between 1 January 2017 and 1 September 2020. That data calls into question his statements that AEDs have been used "routinely" on members of the public, and that firefighters are "often approached by passers-by to use the AED". It certainly does not suggest that the use of AEDs is part and parcel of the daily, or even regular work of firefighters.
14. Further, adopting the PAD Program would see the frequency with which firefighters across the State might be required to use AEDs increase from less than once per week to possibly 14 times per day.
15. Mr Drury stated: [7] "22. I reported to this forum at the time that members felt the current systems around mental health 'is not enough' [sic]. I made the specific point that our members will be exposed to further trauma events under this proposal. FRNSW has indicated that there will be in the range of 14 additional calls a day - that still means 14 additional traumatic incidents that our members will face."
16. That firefighters may be exposed to further trauma as a result of attending cardiac arrests is evidenced by the Medical Response Capability Statement referred to at [2] above, which stated in connection with the Early Access to Defibrillation program: "FRNSW is working with NSW Ambulance to define the scope of the program. FRNSW is also developing processes to ensure that firefighters receive additional knowledge, skills, and support in relation to bystander management and psychological resilience, to be able to deliver this medical response capability."
17. In addition, the evidence included the minutes of a meeting of FRNSW's Operational Capability Directorate held on 7 November 2019. The title of the meeting was "Enhancing Medical Response Capability Working Group (EMRC) Meeting No 8". The minutes noted the following: [8] "Update from CFR … PJ - Ambulance are concerned that they are offering a higher level of help (psychologists etc) to their staff compared to what FRNSW are offering their staff. The team are across this and deliver a different system to ensure that FRNSW staff are okay including peer support, and the use of psychologists (10) state-wide. MM - If ambulance's psychologists can agree to support FRNSW once a year for an extra wellness check, this would be very beneficial for FRNSW." (Sic)
18. The FBEU submitted: [9] "27. Requiring firefighters to participate in the PAD Program - that is, attend medical emergencies as first responders: a. is not something that they are presently required to do; b. was not taken into account when Award wages were set; c. involves an increase or intensification of work; d. will likely (noting there is a dispute about this) require training beyond the basic first aid qualifications firefighters currently hold, and the application of different skills; and e. will inarguably expose firefighters to new risks of harm, as well as increasing exposure to present risks (notably, psychological injury). … 29. There is an obvious difference between a firefighter who has responded to an incident - for a basic example, a housefire - and attends to find a person requires first aid, and a firefighter rolling out to a medical emergency for the sole purpose of providing life-support. …" (Emphasis in original)
19. FRNSW submitted: [10] "35. There is an obvious public interest in allowing FRNSW to direct its employees to perform duties within their skill and capabilities, particularly where to do so will significantly improve the prospect of directly saving lives in the community."
20. The public interest in the PAD Program is not in question. If it succeeds in delivering more timely and effective medical assistance to people in need it will obviously be of benefit to the community. This case does not call for an examination of the motivations behind the creation and implementation of the PAD Program. The FBEU did not impugn FRNSW's motivations in supporting the PAD Program. Equally, the fact that the FBEU (on behalf of its members) is challenging the ability of FRNSW to implement the PAD Program should in no way be construed as suggesting that it and its members are not committed to community welfare.
21. The public interest in the PAD Program does not answer the question currently before the Commission. However well-intentioned FRNSW may be, and however laudable the goals of the PAD Program, FRNSW must still act in accordance with the Awards. To use FRNSW's language, there is an "obvious public interest" in ensuring that parties comply with awards of the Commission.
22. Having regard to these matters, I find that the implementation of the PAD Program would result in a substantial change to the duties performed by firefighters, or to the manner in which those duties are performed. Whether it was an extra claim requires an examination of the interaction between cl 43.1 and cl 42.

The effect of clause 42

1. FRNSW correctly submitted that cll 42 and 43 must be read together and that the Commission should prefer an interpretation of the Permanent Award that allowed for a harmonious construction of those clauses. FRNSW further submitted that even were the Commission to adopt the construction of cl 43.1 outlined at [26] above: 1. the duties required of employees under the PAD Program are "within the limits of [their] skills, competence, and training"; 2. a direction to perform those duties would be lawful and reasonable. FRNSW contended that the Award does not curtail the common law obligation on an employee to comply with lawful and reasonable directions. It drew the Commission's attention to R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 in which Dixon J observed (at 611-622): "If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression 'reasonable instructions' was adopted in describing the employees' duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service…" FRNSW contended that "performing first aid to members of the public could not ever be understood to be outside the contemplation of the contract of service of a firefighter"; [11] 1. any direction given under the PAD Program is either to be regarded as a direction to perform ordinary duties or would fall within cl 42; 2. in either case, it cannot constitute a "demand" within the meaning of cl 43.1; and 3. were the situation otherwise, cl 42 would have no work to do because directing an employee to perform a duty they have not performed previously, or even a duty that they have not performed very often, would be a new claim prohibited by cl 43.1.
2. The FBEU submitted: 1. in contrast to cl 43.1, which makes reference to "employees" in a collective sense, cl 42 refers to "an employee" in the singular. This reflects that cl 42 is concerned with directions issued to individual employees, not changes in operating models or other matters affecting entire cohorts (which would be captured by cl 43.1); 2. any "demand" can be (albeit artificially) characterised as a direction, or a collection of directions, to individual employees. If this semantic approach was sufficient to take a demand outside the scope of cl 43.1, that clause would not function to protect employees from extra claims; 3. cl 42.1.3 requires that a direction to an individual not be "otherwise inconsistent with a provision of this Award". An inconsistency of the kind anticipated by that provision would arise from a direction that requires an employee to accede to something that is an extra claim within the meaning of cl 43.1; and 4. it follows that the correct interpretation of the interaction between the two clauses is one which leads to cl 42 being subservient to cl 43.1, not the other way around.
3. I am persuaded by the FBEU that its construction of the interaction between cll 42 and 43.1 is to be preferred. This is predominantly for two reasons. First, the use of the singular "employee" in cl 42 and the collective "the employees covered by the award" in cl 43.1 suggests that they are directed at different ends. It would not be a harmonious construction of the provisions to permit FRNSW to make what would otherwise be an extra claim under cl 43.1 by making individual directions purportedly pursuant to cl 42 across the entire workforce.
4. To adopt such a construction would lead once again to a situation where cl 43.1 would largely become confined to extra claims by the employees. The "permissive" construction of cl 42 pressed by FRNSW [12] would allow for "directions" to be made across the entire cohort that are in effect collective demands made "with respect to the employees covered by the award".
5. Second, and consequently, effect must be given to cl 42.1.3. If the demand of employees would be an extra claim within the meaning of cl 43.1, even if presented in the guise of directions to individual employees, it does not fall within cl 42.
6. Viewed in this light, it will be seen that there is little substance to FRNSW's contention that the FBEU's proposed construction of the award would leave cl 42 with no work to do. Subject to its terms, cl 42 allows for the flexible and efficient utilisation of firefighters. It does not, however, permit whole-of-workforce changes in operating models or work practices.
7. Whether a direction is "reasonable" within the meaning of cl 42.1.1, and assuming the question of "reasonableness" is to be determined by reference to common law principles, is not of itself determinative of the application of cl 42. A claim might be reasonable by reference to common law principles and impermissible under cl 43.1 at the same time.
8. I have some reservations as to whether a direction to perform the duties required by the PAD Program would be "within the limits of [the] skills, competence, and training" of all firefighters under the Awards. Further, and to some extent following from this, there may be a question as to whether any such direction would be consistent with "the provision of a safe and healthy working environment". The evidence does not, however, permit a determination of those matters.
9. That said, this does not appear to be a matter requiring final determination at present. As noted in the email referred to at [8] above, the parties did not seek "any findings about whether the PAD program specifically meets the requirements of clause 42".
10. I observe for completeness that FRNSW also drew my attention to several provisions of the Fire Brigade Regulation 2014 ("Regulation"), which was said to "comfortably" encompass a direction given under the PAD Program. [13] I note in particular the following provisions of the Regulation to which FRNSW drew my attention: 16 Duty to obey orders and act fairly and responsibly A firefighter must not - (a) disobey or disregard any lawful order made or given by a person having the authority to make or give the order… … 25 Functions of firefighters The functions of each rank and position of firefighter are those determined for the time being by the Commissioner. 26 Performance of functions … (2) A firefighter must perform all firefighting or other functions that the firefighter is lawfully directed to perform. (3) A firefighter must serve wherever the firefighter is directed by the Commissioner.
11. I did not take FRNSW to be submitting that the Regulation permitted it to act in a matter otherwise inconsistent with the Awards. Rather, I understood its position to be that its construction of the Awards was consistent with the Regulation.
12. If the construction advanced by FRNSW is not accepted, however, the Regulation provides little assistance. The reference to "lawful order" in cl 16(a) and to functions that a firefighter "is lawfully directed to perform" in cl 26 (2) would, in my view, preclude directions that were in contravention of a no extra claims commitment in the Awards.

Is the PAD Program an extra claim?

1. Based on the matters I have addressed, and in particular my finding at [50] above, I find that a requirement that firefighters perform duties in the implementation of the PAD Program is a "demand made with respect to the employees covered by the award" within the meaning of cl 43.1 of the Permanent Award and cl 34.1 of the Retained Award. As such, during the term of the Awards it was an "extra claim". It follows that the purported implementation of the PAD Program by FRNSW on and after 6 May 2020 until the notional expiry of the award on 25 February 2021 was not permitted.
2. The Commission has on numerous occasions described the importance that it attaches to "no extra claims" commitments in awards: see, for example, Re Corrections Health Services Nurses' Award (1999) 90 IR 235 at 245; [1999] NSWIRComm 123 (Wright J); Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 at [16]-[18].
3. In circumstances such as the present where the Awards have passed their expiry dates, and having regard to the limited basis on which the matter is brought before the Commission, it serves little purpose to analyse these authorities, or to consider in any detail the consequences of FRNSW having pressed an extra claim.

Disposition

1. There is no controversy between the parties that there is a public interest in the implementation of the PAD Program. There are obvious benefits to the community in having enhanced access to potentially life-saving equipment and intervention by appropriately trained and supported responders.
2. The immediate contest between the parties was whether in purporting to implement the PAD Program, which would entail firefighters being directed to discharge the duties and responsibilities set out in the MOU, FRNSW was in contravention of the no extra claims commitments in the Awards. I have addressed that question.
3. The broader issue is whether firefighters can and should be required to discharge those duties and responsibilities, and whether they have the necessary training, support and infrastructure to do so. As I have stated, this is a question that the parties have not sought to be determined and which, in any event, I consider is not capable of being determined on the available evidence.
4. However, in view of the obvious community benefits to be derived from the PAD Program once that broader contest is resolved, I recommend that the parties confer with a view to reaching consensus as to how and on what terms firefighters may be required to participate in the implementation of the PAD Program.
5. I direct that these proceedings be stood over until Friday, 28 May 2021. If by that date the FBEU has not sought to have the matter relisted or requested an extension of time, the file will be closed administratively. Damian Sloan Commissioner

Endnotes

1. Statement, Leighton Drury, 17 August 2020 Annexure LDE1
2. ibid., Annexure LDC
3. Statement, Leighton Drury, 17 August 2020 at par 25
4. Statement, Jeremy Fewtrell, 17 September 2020
5. Statement, Jonathon Wright, 9 October 2020, Annexure JW5.1 at p 32
6. FBEU Submissions in Reply at par 5
7. Statement, Leighton Drury, 9 October 2020
8. ibid., Annexure LD1
9. FBEU Outline of Submissions
10. Outline of the Respondent's Submissions
11. Outline of the Respondent's Submissions at par 6, emphasis in original
12. Outline of the Respondent's Submissions at par 12
13. Outline of the Respondent's Submissions at par 16 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: 07 May 2021