//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] NSWIRComm 83
Industrial Relations Commission (NSW)
2013-05-07
Boland J, Mr J
Original judgment source is linked above.
DECISION 1In Fire Brigade Employees' Union of New South Wales v Fire & Rescue NSW [2013] NSWIRComm 59 ("FBEU (No 1)") the Commission dealt with an industrial dispute involving the Fire Brigade Employees' Union of New South Wales ("FBEU") and Fire & Rescue NSW ("FRNSW") concerning proposals by FRNSW to promulgate a new Regulation dealing with disciplinary procedures that would apply to firefighters employed under the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 and the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2011 ("the Awards"). 2The FBEU was concerned that the proposed new Regulation would detrimentally alter the disciplinary provisions that currently apply to firefighters. Consequently, the FBEU sought the making of an interim award to protect existing disciplinary protections. 3In its decision, the Commission made the following orders and directions: (1) The FBEU's application for an interim award is refused. (2) The parties are to meet and to endeavour in good faith to negotiate the terms of a regulation to replace the current Regulation having regard to this decision. (3) The status quo shall prevail, that is, no steps will be taken to amend or replace the current Regulation until the parties have reported back to the Commission on the outcome of their negotiations for a new regulation. (4) The parties shall report back to the Commission on the outcome of their negotiations at 9.30 am on Monday 29 July 2013. (5) Liberty to apply. 4On 5 August 2013, the Commission was advised that, in accordance with the Commission's decision, most matters regarding the content of a new Regulation had been agreed between the parties. However, there was one particular matter that remained outstanding regarding consultation. The parties sought and were granted further time to address the outstanding issue. 5On 20 August 2013, the parties advised that no agreement had been reached on the consultation issue. Accordingly, the parties agreed with the Commission's proposal that they should file written submissions supporting their respective positions and the Commission would deal with the matter on the papers. 6The issue separating the parties arises out of the Commission's decision in FBEU (No 1) at [50] and [88] (and the heading immediately preceding [88]): [50] The Guidelines were very comprehensive and based essentially on those applying to the general public service. If adopted they would, in my opinion, assist in avoiding many of the mistakes and delays that occurred in the preliminary inquiry stage of the Merrylands Inquiry. My only concern about the status of the Guidelines is that despite heavy reliance on them in the Draft Regulation, the Commissioner may amend, revoke or replace them without any reference to or consultation with the FBEU. I do not think that is an acceptable arrangement and as I propose later in this decision any change to a new regulation should only be made after a proper process of consultation has occurred and the FBEU maintains a right to bring the matter to the Commission before any amendment is promulgated. ... The use of a policy document to regulate a number of existing conditions, which would thereafter be at the Commissioner's discretion and could be unilaterally altered at any time, and without notice [88] The FBEU's concern about this is understandable. My view is that any change to a new regulation should only be made after a proper process of consultation has occurred and the FBEU maintains a right to bring the matter to the Commission before any amendment is promulgated. 7The proposed new Regulation contains provisions on consultation. First, there is a reference in the Explanatory Notes to consultation in the following terms: Explanatory Note ... (c) enable the issuing of procedural guidelines by the Commissioner but only following a proper process of consultation with the Fire Brigade Employees' Union of New South Wales, and, if necessary, determination by the Industrial Relations Commission of New South Wales for the purposes of dealing with allegations of misconduct against firefighters as a disciplinary matter and the taking of disciplinary action with respect to firefighters under that Part, and Secondly, proposed cl 36(4) is as follows: The Commissioner may from time to time amend, revoke or replace the procedural guidelines, but only after a proper process of consultation has occurred with the Fire Brigade Employees' Union of New South Wales, and, if necessary, determination by the Industrial Relations Commission of New South Wales. 8The FBEU took the view that the provisions in the proposed Regulation regarding the obligation on FRNSW to consult were not adequate. It contended that the consultation provisions must be built into the Awards. It claimed that an award provision should be included that would entrench in the Award a duty to consult upon any changes to the disciplinary code. The FBEU proposed variations to relevant clauses of the Awards. 9For its part, FRNSW opposed any award variations. It noted that both the guidelines and the Regulation provided for consultation with the FBEU prior to any amendment and, if necessary, determination by the Commission in the absence of agreement on future amendments. 10Moreover, FRNSW understood it to be contrary to Government Wages Policy to allow policy matters into Awards. Furthermore, it was submitted, a change to procedures in the future, for instance, if these were Award matters, would require Award variation, potentially by arbitration, on each occasion. Multiple unnecessary Award variations would complicate an already solved problem. 11It was further submitted for FRNSW: FBEU did not in prosecuting its case in pursuit of an interim Award covering disciplinary matters argue that in the alternative the two extant Awards should be varied. To do so now is disingenuous at best. Having not succeeded in pursuing the matter of an Award they seek to do so by variation of existing Awards on the basis that they do not trust the Government. Such an attitude would logically give rise to the Commission being required to interpose itself as some sort of baffle to the democratic process. This is bad policy and the Commission should not countenance it.
Consideration 12It seems to me a relatively simple amendment may be made to the Awards that will resolve the industrial dispute by avoiding any apprehension or uncertainty that may impact adversely on industrial relationships between the parties and be consistent with undertakings FRNSW is prepared to offer. Whilst the proposed Regulation provides for a "proper process" of consultation it does not prescribe that process whereas the Awards do so. 13The amendments I propose are, first, in respect of the Permanent Firefighting Award a variation to clause 36 by renumbering cl 36.2 as cl 36.2.1 and inserting a new cl 36.2.2 in the following terms: 36.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Procedural Guidelines specified in the Fire Brigades Amendment (Disciplinary Process) Regulation 2012, which amends Part 4 of the Fire Brigades Regulation 2008. 14A similar amendment would apply to the Retained Firefighting Staff Award by renumbering cl 27.2 as cl 27.2.1 and inserting a new cl 27.2.2 as follows: 27.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Procedural Guidelines specified in the Fire Brigades Amendment (Disciplinary Process) Regulation 2012, which amends Part 4 of the Fire Brigades Regulation 2008. 15The submission by FRNSW that it "understands" it is contrary to Government Wages Policy to allow policy matters into Awards provides the Commission with no assistance and, in any event, the variations I have proposed hardly amount to policy matters. 16No submission was put that the award variations proposed by the FBEU were inconsistent with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 or the Industrial Relations Act 1996. The variations I have proposed do not go as far as what the FBEU proposed and could not in any way be regarded as inconsistent with those statutory provisions.
Orders 17The Commission makes the following orders: (1) The Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 is varied by renumbering cl 36.2 as cl 36.2.1 and inserting a new cl 36.2.2 in the following terms: 36.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Procedural Guidelines specified in the Fire Brigades Amendment (Disciplinary Process) Regulation 2012, which amends Part 4 of the Fire Brigades Regulation 2008. (2) The Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2011 is varied by renumbering cl 27.2 as cl 27.2.1 and inserting a new cl 27.2.2 as follows: 27.2.2 This clause also applies in circumstances where the Commissioner decides to amend, revoke or replace the Procedural Guidelines specified in the Fire Brigades Amendment (Disciplinary Process) Regulation 2012, which amends Part 4 of the Fire Brigades Regulation 2008. (3) The variations in Orders (1) and (2) hereof shall operate from the date of commencement of the Fire Brigades Amendment (Disciplinary Process) Regulation 2012.
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: 25 September 2013
Fire Brigade Employees' Union of New South Wales
Fire & Rescue NSW