Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW

Industrial Relations Commission (NSW)|2021-09-22

llocation Methodology (RAM) Resource Index" in any format be prohibited; b. publication or broadcast of evidence given before the Commission in relation to the Excel spreadsheet entitled "Resource Allocation Methodology (RAM) Resource Index" be prohibited; c. disclosure of the Excel spreadsheet entitled "Resource Allocation Methodology" in any format be restricted to the Commission and persons authorised to have access to the spreadsheet by Fire and Rescue New South Wales; d the hearing of evidence given before the Commission in relation to the Excel spreadsheet entitled "Resource Allocation Methodology (RAM) Resource Index" be conducted in private in the absence of any persons other than the Commission, Mr Giacomo Arnott, Mr Faheem Anwar and authorised representatives of Fire and Rescue New South Wales.

Background

On 17 October 2008 the Acting Commissioner of FRNSW, Ken Thompson, published In Order 2008/22 pursuant to cl 4 of the Fire Brigades Regulation 2008. The document was titled "Retained firefighter response coverage and crewing levels". Amongst other things, In Order 2008/22 provides that: 1. it is the duty of a Station Commander "to ensure that sufficient retained staff will be available at all times to ensure that a safe and effective minimum crew of four firefighters will respond to calls"; 2. unless an appliance has been taken off line (see below), retained firefighters are able to respond to an incident with that appliance with a crew of less than four, provided that it is known that a full crew is available to answer the call. The crew cannot engage in offensive firefighting operations before at least four firefighters have arrived on scene; 3. retained stations "must maintain a safe and effective minimum crew of four firefighters for the station pumper at all times". Where insufficient staff are available, crew supplementation must be undertaken through steps in the following order: 1. notifying retained firefighters attached to that station of the staffing deficiency in an attempt to manage the situation locally; 2. arranging for surplus retained firefighters at an adjoining station, or retained firefighters from other Brigades working in that station area, to be ready to respond with that station; 3. directing on-duty permanent firefighters at nearby stations to work at the station on out-duty or stand by; 4. "moving up" a retained Bravo (secondary) appliance and crew from another station; 5. recalling off-duty permanent firefighters attached to base stations within 60 kilometres of the station; and 6. arranging for surplus retained firefighters from another station or stations to stand-by at that station; 1. crew supplementation is not required for ancillary appliances such as water tankers or Bravo pumpers, subject to a risk assessment having been undertaken: 2. again subject to a risk assessment, crew supplementation is not "automatically" required at 34 identified stations, except when a total fire ban has been declared, there is a major incident in progress at which their station may be required or for other operational reasons determined by the Area Commander. Outside of those circumstances, if firefighter availability at a station falls below four: 1. appliances may temporarily be "taken off line" until full crewing from within the station complement was available; and 2. retained firefighters may respond to a call, but may only do so to assist other attending brigades. They must travel in their private vehicles and may not take the station's appliance; and 1. adjoining fire stations, or a Bravo pumper and fire station in the same fire district, must not be taken off line at the same time.
On 9 October 2019 the Acting Commissioner of FRNSW, Jim Hamilton, published Commissioner's Orders 2019/20 ("In Order 2019/20"), pursuant to cl 4 of the Fire Brigades Regulation 2014. The document was titled "Procedures - Fire and Rescue NSW Operational Readiness Network". In Order 2019/20 purported to rescind In Order 2008/22. It was on its terms less static and prescriptive than In Order 2008/22 and purported to adopt a "risk-based approach", which anticipated a network approach to resourcing that allowed for appliances to be moved as necessary to meet operational needs.
This approach, as it relates to situations involving limited staff availability, is reflected in the following extract from In Order 2019/20: "Duty, Zone and Area Commanders, in close consultation with the Response Coordinator, are responsible for managing the availability and movement of appliances across the network, including staffing of appliances. Further, in cases of limited staff availability, the Area Commander, in consultation with Duty & Zone Commanders, will also determine on a risk basis whether an appliance and crew are required to form part of the FRNSW immediate operational response network. In doing so consider factors such as, but not limited to: • The impact and/or duration of the staff shortage(s); • The time of day/night, such as school hours; • Weather forecast conditions; • Any current operational activities which have local risks or impact on response; • The availability of staff and appliances across the overall network; and • The necessity or otherwise of postponing activities, (for example Station Forums). If, following the risk analysis it is deemed necessary to cover that particular area of the network, then consider options such as, but not limited to: • The move up of other appliances; • The use of available on-shift personnel; • The use of available retained or off duty permanent firefighters."
On 9 October 2019 the FBEU notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996. The FBEU's notification described the "question, dispute or difficulty" in these terms: "The FBEU is seeking an urgent listing of this matter because of action taken today to publish In-Order 2019/20 rescinding In-Order 2008/22. In-Order 2008/22 is multifaceted and regulates staffing, resource allocation and what stations can be taken off-line (TOLing). Rescinding In-Order 2008/22 will result in multiple organisational changes and will detrimentally impact the work of firefighters. It will compromise their safety and the safety of the community. The FBEU requested that the In-Orders not be published to continue discussions, however despite this request Fire and Rescue NSW published. …" (Emphasis in original)
Following the filing of the notification, the parties engaged in discussions with a view to resolving the areas of disagreement between them. Numerous conciliation conferences overseen by the Commission were convened, and the parties separately met, conferred or corresponded as necessary. These discussions continued over the course of nearly two years.
During that period, and while maintaining that In Order 2008/22 ought to be replaced, FRNSW determined not to press for the introduction of In Order 2019/20. It developed an alternative proposed In Order, the latest version of which was provided to the Commission during the course of the arbitration [1] ("Proposed In Order").
FRNSW identified three areas in which the Proposed In Order differed from In Order 2008/22. First, the list of stations at which a pumper may be taken off line would increase from 34 to 56. FRNSW described the Proposed In Order as providing that "an additional 22 fire appliances at retained stations across the State may be taken offline", representing "4.35% of the entire operational fleet and a 15% increase in the number of appliances available to be taken offline under In Order 2008/22". [2]
I digress to observe that there was a difference in the terminology preferred by the parties. The FBEU referred to the Proposed In Order permitting stations to be taken off line. The FRNSW adopted the terminology, albeit not consistently, of appliances being taken off line. The FRNSW's language better reflects the terms of the Proposed In Order, although it conceded that many retained stations will only have one appliance, with the result that taking the appliance off line has the same effect as taking the station off line.
Second, the Proposed In Order would add a step in the crew supplementation process by allowing a permanent appliance and crew to be moved up to cover a retained station with a staff shortage, prior to the recall of off-duty permanent firefighters. FRNSW submitted that under the Proposed In Order it would be mandatory to move up an appliance in the event of a staff shortage at all but 44 identified retained stations.
For the sake of clarity, I observe that the language of the Proposed In Order does not necessarily reflect FRNSW's interpretation. Certainly, the Proposed In Order makes the staff supplementation process mandatory for all but 44 stations. However, on the move up of permanent appliances the Proposed In Order requires the Duty Commander or Zone Commander to "identify the potential to move-up a permanent appliance and crew from another fire station" (the italics are mine), before going on to provide that 12 stations identified with an asterisk "must be provided with a move-up pumper if a staff shortage cannot be filled using steps b) through e)".
There is at least an argument on the language of the Proposed In Order that while it would be necessary to consider the move up of a permanent appliance in the event of a staff shortage, such a move up is only mandatory in respect of 12 "asterisked" stations. For the reasons which follow, nothing much turns on this.
Third, where a retained appliance has been taken off line due to a staff shortage, the Proposed In Order would permit a crew of two to respond to an incident with the appliance, provided that they engage only in defensive firefighting until sufficient number of firefighters have arrived to allow for a change in firefighting strategy. As noted already, In Order 2008/22 provided that if four firefighters were not available to respond to an incident, those who were available could not take the appliance; they could only attend an incident in their own vehicles to offer assistance to other firefighters who may have responded.
The FBEU opposes the introduction of the Proposed In Order and seeks to maintain the arrangements contemplated by In Order 2008/22. Its position was summarised as follows: [3] "4. FBEU is concerned that: (a) by allowing additional stations to be taken offline, the Proposed In Order will on average result in an increase in the response time and therefore have an adverse impact on FRNSW's firefighting ability; (b) the changes introduced by the Proposed In Order will pose safety risks for firefighters; (c) contrary to the position adopted by FRNSW in its submissions, the stations that can be taken offline under the Proposed In Order (leaving aside the stations that are subject to a compulsory 'move up' requirement) are not limited to very low risk stations or stations that are in close proximity to other stations; and (d) the costs savings from implementing the Proposed In Order may be less than the amount of $2 million claimed by FRNSW in its submissions. 5. Accordingly, FBEU seeks a direction to the effect that FRNSW is not to implement the Proposed In Order insofar as it departs from the practices and procedures prescribed by In Order 2008/22. 6. FBEU submits that the relief sought should be granted for the following alternative reasons: (a) first, having regard to all of the facts and circumstances of the case, the Commission should be satisfied that it should exercise its discretion to give a direction under s 136(1)(a) of the Industrial Relations Act 1996 (IR Act) to the effect set out in paragraph 5 above; (b) secondly, relief to the effect set out in paragraph 5 above should be granted as the implementation of the Proposed In Order would contravene cl 42 of the Crown Employees (Fire & Rescue NSW Permanent Firefighting Staff) Award (the Permanent Award) and cl 32 of the Crown Employees (Fire & Rescue NSW Retained Firefighting Staff) Award (the Retained Award); and (c) thirdly, relief to the effect set out in paragraph 5 above should be granted as the proposed in order constitutes an extra claim within the meaning of cl 43.1 of the Permanent Award and cl 34.1 of the Retained Award." (Emphasis in original, footnotes omitted)

Evidence and submissions

There were a significant number of witnesses called by the parties. The FBEU read two reports prepared by John McDonough, an Inspector with FRNSW, who was relied on as an expert. It also relied on statements by the following: 1. Giacomo Arnott, Deputy Captain of Raymond Terrace Fire Station and an Industrial Officer with the FBEU; 2. Robert Callow, a Station Officer at Cranebrook Fire Station; 3. Daniel Finney, Deputy Captain of Bellingen Fire Station; 4. Mark Greenhill, Mayor of Blue Mountains City Council; and 5. Michael Stone, a Senior Firefighter with FRNSW and the Central Coast Sub-Branch Secretary for the FBEU.
FRNSW read affidavits from the following employees of FRNSW: 1. Brendan Cox, Chief Superintendent, Workforce Relations, Planning and Analytics; 2. Jeremy Fewtrell, Deputy Commissioner of Field Operations; 3. Shane Kempnich, Principal Planning Officer; 4. David Lewis, Assistant Commissioner Operational Capability; 5. Paul McGuiggan, Assistant Commissioner, Metropolitan Operations; and 6. Rob McNeil, Assistant Commissioner, Regional Operations.
Various other documents were tendered into evidence by the parties during the course of the arbitration. The parties also provided the Commission with extensive written submissions.
I will not attempt to summarise all of the evidence and submissions, or reproduce it or them at length. I will refer to the evidence and submissions as necessary to deal with the matters arising in these proceedings.
It is necessary to observe, however, that much of the evidence was directed towards challenging (in the case of the FBEU's witnesses) or supporting (in the case of FRNSW's witnesses) the arrangements contemplated by In Order 2019/20. As already observed, FRNSW no longer presses for the introduction of that In Order. In considering the evidence and submissions, I have made allowances for the differences between In Order 2019/20 and the Proposed In Order.

Jurisdiction - is there an industrial dispute?

FRNSW disputed that the Commission's jurisdiction in this matter had been enlivened. It contended that the FBEU had failed to establish that the proceedings gave rise to an industrial dispute.
Section 130(1) of the Industrial Relations Act enables the Commission to be notified "of an industrial dispute for the purposes of resolving the dispute". The term "industrial dispute" is defined in the Dictionary of the Act as "a dispute (including a question or difficulty) about an industrial matter". The term "industrial matter" is defined in s 6(1) as follows: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.
In Health Services Union v Ambulance Service of New South Wales [2008] NSWIRComm 72 Boland J observed: "22 The context in which the phrase is used is, in broad terms, the Industrial Relations Act, which is a piece of beneficial legislation to be interpreted liberally. The more immediate context is s 6 of that Act where industrial matters is defined as 'matters or things affecting or relating to work done or to be done in any industry or the privileges, rights, duties or obligations of employers or employees in any industry.' It has been observed that this definition would seem to extend to 'any matter which arises out of the relationship of employer or employee, provided that it is not inconsistent with the provisions of the Act': Re Bank Officers (State) Board [1921] AR (NSW) 252; C P Mills 'New South Wales Industrial Laws' (4th ed, 1977, Butterworths) at 88. 23 There is nothing to suggest that the term 'relating to' in s 6 of the Act was intended to have other than a wide operation and that even though a matter or thing might have only an indirect (but relevant) connection with work done or to be done, that, in my view, would be a sufficient relationship."
The case advanced by the FBEU included contentions that the Proposed In Order would: 1. pose a risk to firefighter safety, including through an increase in response times to incidents and in permitting a crew of two to respond to an incident with an appliance; 2. as a consequence, be a direction contrary to cl 42.2.1 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2021 ("Permanent Award") and cl 32.2.1 of the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2021 ("Retained Award"), which require that any direction issued to firefighters be consistent with the provision of a safe and healthy working environment; 3. change existing work practices, including through permitting more appliances to be taken off line, allowing a crew of two to respond to an incident with an appliance and providing for permanent crews and appliances to be moved up to a retained station; 4. as a result of mandating or providing for the move up of permanent appliances, reduce the amount of overtime available to permanent firefighters; and 5. amount to an extra claim in contravention of cl 43 of the Permanent Award and cl 34 of the Retained Award.
Applying the approach to s 6(1) of the Industrial Relations Act outlined in Health Services Union v Ambulance Service of New South Wales at [22] above, I am satisfied that all of these contentions concern "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry". I note in particular that it is well established that the term "industrial matters" encompasses work health and safety matters: see Health Services Union v Ambulance Service of New South Wales at [19]. There was no contest that alleged breaches of the awards would also be an industrial matter.
Despite this, FRSNW appeared to submit that for the Commission's jurisdiction to be enlivened, FBEU needed to establish its case on the merits. In FRNSW's Submissions it was contended: 36. As noted above, one of the FBEU's concerns is that by allowing additional stations to be taken offline, the Proposed In Order will on average result in an increase in the response time and therefore have an adverse impact on FRNSW's firefighting ability. The FBEU points to the overriding duties of the Commissioner of FRNSW under s 5A of the Fire and Rescue NSW Act 1989 to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of any fire in any fire district and says that an increase in response time would be against the public interest. 37. While the FBEU's concern for the public's welfare is admirable, such concern, does not constitute an 'industrial matter' as it is not directed to the FRNSW Commissioner's duty to his employees or the employee/employer relationship, but rather the lives and property of the citizens of New South Wales and the Commissioner's statutory responsibility to the people of New South Wales. While pursuant to s 146(2) of the IR Act the Commission 'must take account of the public interest in the exercise of its functions ...', there is no general power in the IR Act for the Commission to make any kind of order which might seem just in the circumstances of the particular case, or it [sic] act 'at large' in the public interest. The Commission must first be properly seized with jurisdiction to act, in this case, because there is before it an industrial dispute about an industrial matter. In so far as the FBEU relies upon the public being adversely impacted by an increase in response times to attend an incident, by reason of the Proposed In Order (which proposition is rejected by FRNSW as discussed below), the Commission will reject this matter as constituting an industrial matter in relation to which it has power to act. 38. FRNSW accepts that the health and safety of employees is capable of constituting an industrial matter, as it may concern the conditions of employment and, in this case, may be governed by specific clauses in the relevant Awards. However, to constitute an industrial matter within the meaning of the IR Act and so as to enliven the jurisdiction of the Commission, FBEU in this case must establish that: a. the introduction of the Proposed In Order poses an actual risk to the health and safety [of] firefighters; and b. that the degree to which firefighters are exposed to a risk to their health and safety is such as to warrant an intervention by the Commission into the employer's operation and management of its business; and/or c. the introduction of the Proposed In Order would constitute a contravention of cl 42 and cl 32 of the Permanent and Retained Award, respectively." (Emphasis in original, footnotes omitted)
In so far as these submissions are premised on the proposition that the concept of an "industrial matter" is a conditional one, depending for its existence in any case on the notifier establishing a case for the Commission to intervene, I do not accept them. It is not a question of a matter being "capable" of being an industrial matter. If it falls within the definition in s 6(1), and there is a dispute (including a question or difficulty) about it, then it may be notified to the Commission whose jurisdiction is then invoked. The existence of a dispute about an industrial matter is not dependent on the notifier making out the case for intervention. Whether the notifier is able to convince the Commission to intervene, or to intervene in the manner sought, goes to the Commission's powers and discretion, not its jurisdiction.
In this case, the parties are in dispute over (at least) the matters set out at [23] above. By definition, that is an "industrial dispute". As an industrial organisation of employees, the FBEU was entitled to notify the Commission of the dispute under s 130 of the Industrial Relations Act "for the purpose of [the Commission] resolving the dispute". There is no question that the Commission's jurisdiction is enlivened in this case.

Principles informing the exercise of the jurisdiction

The case presented by the FBEU calls for a consideration of two matters in particular that inform the exercise of the Commission's discretion in these proceedings: the question of management prerogative, and the consideration of the public interest.

Management prerogative

It is well settled that an industrial tribunal "should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted": Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 136-137; [1987] HCA 28 at [29].
In In re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Pty Company Ltd (1950) 49 AR 371 Cantor J observed at 372: "On the authorities, summarised the following is the legal position: First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is established that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, or because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like…"
In BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127 Hungerford J observed: "The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice, or where safety is involved."
In the present case, the Commissioner of FRNSW is given particular responsibilities and powers by the Fire and Rescue NSW Act 1989. The following provisions of that Act are of note in the present proceedings: 5A General functions of Commissioner (1) It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. (2) It is the duty of the Commissioner to take all practicable measures - (a) for protecting and saving life and property endangered by hazardous material incidents, and (b) for confining or ending such an incident, and (c) for rendering the site of such an incident safe. (3) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved and, in the case of a fire, it does not matter whether or not the persons are, or the property is, within a fire district. … 67 Efficiency, discipline and good conduct The Commissioner is responsible for maintaining the efficiency, discipline and good conduct of the members of fire brigades.
Clause 4 of the Fire Brigades Regulation 2014, pursuant to which the Proposed In Order would be made, is in these terms: 4 Commissioner's Orders (1) The Commissioner may, by order in writing, issue, amend or revoke instructions with respect to the efficiency, discipline and good conduct of firefighters. (2) The instructions may be published under the title of "In Orders" or "Standing Orders". (3) The Commissioner must take steps to ensure that all current In Orders and Standing Orders are brought to the attention of all firefighters.
FRNSW's Submissions included the following: "76. The direction sought by the FBEU seeks to significantly interfere with the FRNSW Commissioner's statutorily enshrined managerial prerogative. The Commission will only so interfere if the FBEU can demonstrate that the Proposed In Order would impose unfair or unreasonable demands on firefighters and then, only to the extent absolutely necessary. It is not the role of the Commission to place itself in the shoes of the FRNSW Commissioner and decide what measures he may, or may not take, in order to properly fulfil the statutory duty he owes to the people of New South Wales." (Footnotes omitted)
I accept these submissions. They are consistent with those of the FBEU to the effect that whilst the management prerogative principle requires the Commission to show a degree of deference towards FRNSW's prerogative to manage its operations, the degree of deference required is not absolute. The principle does not prohibit the Commission from granting relief that would interfere with the operations of FRNSW if the granting of such relief is justified having regard to all of the relevant facts and circumstances. [4]

The public interest

The FBEU placed significant reliance on the Commission's obligation to have regard to the public interest in exercising its functions. Section 146 of the Industrial Relations Act provides: 146 General functions of Commission (1) The Commission has the following functions - (a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law. (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to - (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.
The FBEU submitted that in order to comply with the requirement in s 146(2) to "take into account the public interest" it was necessary that the Commission "make findings of fact regarding any issues in dispute about the public being adversely impacted by an increase in response times to attend an incident by reason of the Proposed In Order". [5]
This submission needs to be approached with caution. There are two aspects of s 146(2) which bear emphasising: first, the Commission must "take into account" the public interest; and second, it must do so "in the exercise of its functions". In the present case, the Commission is called on the resolve the industrial dispute between the parties pursuant to s 130 of the Industrial Relations Act. The fact that the FBEU impugns the Proposed In Order, and contends that it is contrary to the public interest, does not invest the Commission with the jurisdiction to conduct a plenary review of the exercise by the Commissioner of FRNSW of his statutory mandate and, if found wanting, to take such steps as are necessary to correct anything that might be regarded as contrary to the public interest.
While the Commission undoubtedly has very wide powers to deal with disputes notified under s 130, in arbitration it is not empowered to make any kind of order which might seem just in the circumstances of the particular case. It is constrained by the terms of the Industrial Relations Act, including by the relief permitted in s 136: Notification under section 130 by the New South Wales Teachers Federation of a dispute with the Department of Education and Training re casual teacher (2003) 121 IR 177; [2003] NSWIRComm 145 at [31]-[32].
I also have regard to In re Rozelle Hospital Manning Level (1979) 79 AR 51. In the context of the Industrial Arbitration Act 1940 McClelland J observed (at 53): "The jurisdiction to make an order or award 'determining any industrial matter' receives further clarification in s 5 of the statute in which the definition of 'industrial matters' includes 'matters all things affecting or relating to work done or to be done'. Though these are words of wide scope they are also words of limitation in relation to manning awards. In his final address Mr Sweeney, of counsel, who appeared for The Health and Research Employees' Association of Australia, NSW Branch and the New South Wales Nurses' Association, acknowledged that it was not open to him in asking this tribunal to make awards providing for certain manning levels to call in question federal or state governmental policies, based on economic or financial considerations, as to the level of patient care in hospitals or the distribution of available resources. He is confined, within s 5, to the impact which the implementation of those policies may have on 'the work done or to be done' at Rozelle Hospital."
Similar considerations apply in the present case. To the extent that the FBEU challenges the Proposed In Order, the task before the Commission is to determine its impact on "the work done or to be done" by firefighters.
Further, and significantly, consideration of the public interest is not confined to an assessment of the shortcomings in the Proposed In Order asserted by the FBEU. The public interest requires acknowledgement of, and due regard being given to, the mandate conferred on the Commissioner of FRNSW by the legislature under the Fire and Rescue NSW Act and the Fire Brigades Regulation.
Finally, through the introduction of the Proposed In Order FRNSW "hopes to reduce the amount it pays for overtime and relief duty". [6] Any reduction in FRNSW's operating costs are properly to be considered in the context of s 146 of the Industrial Relations Act. This is particularly the case having regard to the sources of FRNSW's funding: see Fire and Rescue Act Pt 5 and the Fire and Emergency Services Levy Act 2017.

The rationale and methodology underpinning the Proposed In Order

The Proposed In Order is premised, to a large degree, on the same network approach to the deployment of appliances and crews on a risk management basis as In Order 2019/20. Mr McGuiggan deposed that there were three principal reasons why FRNSW sought to replace In Order 2008/22 with the Proposed In Order: to reflect the benefits that FRNSW can derive from technological changes that have occurred since 2008; to reflect an approach to risk management that was more contemporary and consistent with the statutory duties of the Commissioner of FRNSW than provided for in In Order 2008/22; and, to obtain a reduction in overtime and relief duty payments.
I will deal with each of these reasons in turn.

Technological changes

A key element of the new technology on which FRNSW relies was described as the "Dynamic Coverage Tool" (and also "Dynamic Cover Tool") ("DCT"). The DCT is a system which displays the location of FRNSW appliances and stations. It produces a "heat map" showing areas of greater or lesser risk as appliances are moved around the network, either in a real-time operational sense or in a simulation exercise. Mr Fewtrell stated: [7] "25. …FRNSW is continually monitoring the coverage provided by the appliances in the network to ensure the timeliness of any response. In response to incidents, or any other reason such as training, in one area drawing on local resources and leaving a response gap staff from the Communications Centre will direct the movement of appliances from other stations to cover these areas to ensure an adequate level of response coverage is maintained. This happens on multiple occasions each day. The Dynamic Coverage Toll is utilised by Communications Centre Supervisors to inform these move ups and ensure adequate levels of response coverage are maintained across the network. …"
During the hearing, Mr McGuiggan demonstrated the operation of the DCT. The Commission was able to observe how the risk profile displayed on screen changed as Mr McGuiggan modelled changes such as the move up of appliances or taking appliances off line.
The Proposed In Order is underpinned also by a "Resource Allocation Methodology" ("RAM") and by other analyses undertaken by Mr Kempnich, who deposed: [8] "13. RAM is a strategic resource planning and allocation tool used to assist and support decision making around front-line resources - such as fire station locations and acquisition and placement of appliances. It uses a multi-faceted approach (hence it is a 'methodology' as opposed to a 'model') which can be used according to the specific need. … 14. One of the elements of the RAM is the Resource Index. The Resource Index uses twenty quantitative factors related to service demand and risk (sourced both internally and externally of the organisation) that allows each fire station's service area to be compared on an equal, 'apples with apples' basis across the State. The index includes factors such as structural fire hazards, population, employment & socio-economic factors, number and type of different incidents, natural hazard events and exposure (such as bushfire & flood), traffic & transport data, specialist station roles, dangerous goods storage data and property values. 15. The Resource Index is broken down with each station identified as being in one of five 'resource categories' - from Very Low, Low, Moderate, High then to Very High - reflecting the likely demand on service in each area. …The Resource Index was used to help formulate Amended Commission's Order. 16. I also conducted an analysis of the time it takes to travel between stations by utilising a geographic information system (GIS) program which simulates the response of a vehicle across the road network under given assumptions, in the same way that appliances are allocated to incidents using the Emergency Services Computer Aided Dispatch (ESCAD) system. In this case, the response of stations across NSW was undertaken to identify those which could reach another town/station generally within 30 minutes (including the assumed time to mobilise that crew)."
The Resource Index and the analysis conducted by Mr Kempnich were used to identify the stations at which appliances could be taken off line in the event of a staff shortage.
The FBEU sought to challenge the integrity of the data contained in the Resource Index and of the "time and distance" analysis conducted by Mr Kempnich. The FBEU took issue in particular with the evidence of Mr Kempnich that appliances which can be taken off-line are "at stations which are very low risk or in very close proximity to other stations in the network". [9] Mr Kempnich clarified under cross-examination that by "very close proximity" he was referring to a station within ten minutes of another one.
As to the integrity of the Resource Index, the FBEU's Submissions contended: "45. Under cross-examination Mr Kempnich accepted that: (a) the categorisation in the Resource Index is only accurate for a particular window of time and as data changes over time the categorisation may change; and (b) if there are significant data updates to the Resource Index, that could change the categorisation. 46. Further, under cross-examination Mr Kempnich conceded that: (a) in respect of the 'property values' category the most recent data in the Resource Index is from 2018; (b) in respect of the 'rescue factors' category the most recent data in the Resource Index is from 2018; and (c) in respect of the 'dangerous goods facilities' or 'DGF' category the most recent data in the Resource Index is from 2013. 47. Plainly, the categorisation of stations shown in the Resource Index was based on data that was, at least in part, out of date and not reflective of the current reality. Under cross-examination, Mr Kempnich grudgingly accepted that it is possible that the categorisation could be different if up to date data that reflects today's reality is used. 48. It follows that, whilst the stations that can be taken offline under the Proposed In Order (leaving aside the stations that are subject to a compulsory move up requirement) may have been classified as very low risk based on historical data which is now out of date, the Commission cannot be satisfied that the classification of those stations is reflective of the reality today." (Footnotes omitted)
Mr Kempnich accepted under cross-examination that the categorisation of a station into a "resource category" was only accurate for a particular point in time, reflecting the data then available. As data changes, the categorisation may change.
What is missing from the case presented by the FBEU is evidence of more up-to-date data that would have a material bearing on the categorisation of retained stations. Its case comes down to the bald assertion that if the data dates to 2013 or 2018 it must necessarily not be reflective of "today's reality", such that any analysis derived from that data is unreliable or suspect.
In saying that, I acknowledge that Mr Kempnich accepted that data as to property values from 2018 would now be out of date. He explained under cross-examination, however, that for the purpose of the Risk Index it was relevant to consider the relativities in property values as opposed to the raw numbers. He expressed the opinion that "the relativity indicators that we have are fine" and that the property values data "provides us with an indicator at that time which we are comfortable with at the moment". [10]
I am not persuaded by the FBEU's contention that the categorisation of stations (from "very low" to "very high") "is [not] reflective of reality today".
There is another significant consideration. The evidence demonstrates that the Resource Index is not intended to be a static and final solution for the allocation of resources across the FRNSW network. It is designed to be dynamic, to capture and reflect new data when it is available. Whether this results in changes to the RAM and consequently the DCT will depend on the nature of the new data.
Under cross-examination, Mr Kempnich had the following exchange with Mr Anwar of counsel, who appeared for the FBEU: [11] "Q. ...(not transcribable)... not all of the data in the resource index is up to date? A. Well it is up to date because it's the most recent available data we have. Q. But it may not be reflective of the reality today? A. We can't say that one way or the other. Q. I agree and so it means that - what I'm saying is it may not be - I'm not saying that it is not reflective but it may not be reflective of the reality today you agree? A. Well no I can't agree. Because I don't have anything to tell me whether it is or it isn't. Q. So you don't think it's possible it may be different? A. Of course it could be different; we have nothing to indicate-- … Q. Why was it so difficult for you to admit the possibility that reality is not reflected in this data? A. I'm just saying I had no evidence to tell me whether it would be different or not. But I disagreed with you then that it could be. It could be different, reality could be different. Q. If we use data that's actually reflective of reality today for all 20 factors, the categorisation may be different do you agree? A. That's only if we can get that data that does reflect that and as I've said, where those contemporary data is available, we will update the resource index but for the purpose of this exercise, the data was taken at the particular time which was the best available data that we had and that has informed the decisions taken."
On the basis of these considerations I accept the following contentions from FRNSW's Submissions: "97. …The process will, by its nature, not be a precise science. All FRNSW can do is work with the best available data it has to determine which stations are likely to be able to be taken offline with minimal impact on fire coverage."
In challenging Mr Kempnich's time and distance analysis, the FBEU identified two stations in the Proposed In Order, namely Abermain and Bellbird, which are not within ten minutes of another station. It submitted that the Commission could not be satisfied on the evidence that appliances that can be taken off line under the Proposed In Order are at stations which are in very close proximity to other stations in the network.
I do not consider that this argument significantly advances the FBEU's case. Both Abermain and Bellbird were included in the list of stations in In Order 2008/22 whose appliances could be taken off line. Mr Kempnich conceded under cross-examination that stations which were listed In Order 2008/22 were simply added to the Proposed In Order. He had not performed in respect of those stations the time and distance analysis that he had undertaken in respect of those to be added to list.
To the extent that this calls into question the accuracy of Mr Kempnich's evidence, or the completeness of his analysis, I do not consider that it is of such significance as to impugn the entirety of the modelling undertaken by Mr Kempnich.

Risk management approach

As to FRNSW's desire to replace In Order 2008/22 with the Proposed In Order so as to allow for the adoption of a more contemporary approach to risk and incident management, Mr McGuiggan deposed at some length as to the systems utilised by FRNSW to respond to and safely manage incidents. He described these in the context of the obligations imposed on the Commissioner of FRNSW by ss 5A and 10 of the Fire and Rescue NSW Act. He stated that "[t]he science of responding to a fire or rescue is complex, as decisions have to be made very quickly, and unpredictable things can happen at a fire scene". [12]
Mr McNeil deposed that the Proposed In Order "will allow for the scaling up and down of resources in geographical areas". [13] It would do this by providing "a mechanism for the efficient provision of contemporary risk managed emergency services using the latest technology and multi-agency capabilities". [14] Under cross-examination, Mr McNeil referred to the "need to treat the system as a network of capability". [15]
The concept of regarding the FRNSW's resources as a "network of capability" was one which the FBEU appeared to oppose. For example, Mr Arnott deposed that there should be no room for flexibility in the system. He stated: "30. This underscores why it is so important for any policies that FRNSW works with to be prescriptive. Every zone and every person reading it has a different understanding, so there cannot be any room for movement."
Mr Stone insisted (on my observation, dogmatically) under cross-examination that no stations should be capable of being taken off line. This is despite the fact that it is currently permitted by In Order 2008/22, the operation of which the FBEU seeks to maintain. This is reflective of the unfavourable impression I formed of Mr Stone evidence, in which he refused to make any concession that might be regarded as favourable to FRNSW's case, even when his position was ostensibly untenable.
It is noteworthy, then, that under cross-examination Mr Stone had the following exchange with Ms McDonald of counsel, who appeared for FRNSW: [16] "Q. I see. Now, it is the case at the moment that this process of moving trucks around and moving up trucks, that happens all the time for just operational reasons, doesn't it? A. Yep, a hundred per cent, yeah, I agree with that, yep. Q. So where an appliance is already deployed because they're attending an incident then resources will be deployed around the network to make sure that there's coverage, correct? A. It's called back-filling, yes."
Mr Callow also accepted under cross-examination that FRNSW continually moves permanent station appliances around the network to respond to incidents, partake in training and to undertake safety visits. [17] This is consistent with the written evidence of Mr McGuiggan [18] and Mr Lewis. [19]
This evidence demonstrates that the FRNSW system is already being treated as a network capability. The question appears to be whether in this context a permanent appliance ought to be capable of being moved up to address staffing shortages at a retained station. I make two observations.
First, I consider that a restrictive, prescriptive and inflexible approach to the taking off line of appliances or stations due to staff shortages is inconsistent with a modern approach to risk management. Such an approach would be out of step with the manner in which the network capability is deployed by FRNSW for other operational reasons.
Second, the decision to take an appliance off line is not irreversible. The evidence demonstrated that if the staffing shortage at a retained station is resolved, the appliance will be restored to online status.
I find that the adoption of the Proposed In Order, underpinned by the Resource Index, the RAM and the DCT, is more reflective of a contemporary approach to incident and risk management than the perpetuation of the more rigid approach mandated by In Order 2008/22.
I am of course aware that there is a limit to which FRNSW can move appliances around the network to "remedy any gaps created" by taking a station off line. [20] I accept the following contentions advanced in the FBEU's Submissions: "68. Under cross-examination, Assistant Commissioner McGuiggan accepted that: (a) taking a station offline decreases options available to FRNSW to manage risk by moving resources around the network; (b) when it comes to moving appliances around to cover a station that has been taken offline, what matters is not the total number of appliances across the network but the number of appliances which are within a reasonable distance of the station that has been taken offline; and (c) if FRNSW keeps taking stations offline, it will reach a point where it will no longer be possible to manage risk across that geographical area effectively. 69. It follows that, in principle, there is a limit to the extent to which appliances can be moved around the network to manage risk associated with an increase in response time." (Footnotes omitted)
I will return to the question of an increase in response time. For the present, I observe that the Proposed In Order recognises that the moving up of permanent appliances may not resolve the situation, and that off-duty firefighters may need to be called in to provide coverage. In this way, it anticipates the limitation on the movement of appliances to which the FBEU referred. From the demonstration of the DCT during the hearing, I consider that it provides an effective means by which FRNSW will be able to ascertain when that point has been reached.

Costs savings

Mr McGuiggan stated that the introduction of the Proposed In Order would result in costs savings in the form of a reduction in overtime and relief duty payments. He estimated that the savings would be in excess of $2 million across a three year period.
Mr McGuiggan was challenged on this estimate in cross-examination, and I am satisfied that it is exaggerated. At the same time, it is tolerably clear that in permitting the moving up of appliances before recalling off-duty firefighters the Proposed In Order will result in a reduction in the amounts paid by FRNSW for overtime and relief duty. As FRNSW submitted, "savings must logically be made". [21]
The FBEU's Submissions included the following contentions: "113. In his affidavit Assistant Commissioner McGuiggan nominated three reasons for implemented the Proposed In Order, namely: (a) technological change; (b) evolution of risk management; and (c) cost savings. 114. Under cross-examination, Assistant Commissioner McGuiggan accepted that: (a) the technological change and the evolved risk management strategy that he refers to are all currently operational; and (b) whether or not the Proposed In Order is implemented does not prevent FRNSW from implementing the new technologies and evolved risk management strategies. 115. In light of those concessions, the Commission should find achieving costs savings is really the only reason why FRNSW intends to implement the Proposed In Order." (Footnotes omitted)
There are three observations to make about these submissions. First, they do not recognise FRNSW's intention of adopting a consistent approach across its operations. That is, that managing staff shortages at retained stations should not be dealt with - in FRNSW's submission - in a manner divorced from the use of technology and modern risk management methodology adopted elsewhere in its operations.
Second, even were costs savings FRNSW's only motivation, that would not of itself warrant the Commission's intervention. Achieving costs savings would be entirely consistent with the obligation imposed on the Commissioner of FRNSW by s 67 of the Fire and Rescue NSW Act to "maintain the efficiency…of fire brigades".
Third, seen in the context of the entirety of the FBEU's case, the Commission is being asked to accept the proposition that in exercising his statutory mandate, including through his delegates conducting the risk assessments required under the Proposed In Order, the Commissioner of FRNSW would prefer costs saving over firefighter and public safety. The evidence does not support such a serious contention.
Only Mr Stone, whose evidence was partisan to the point of unreliability, seemed to actively support the proposition. Mr Greenhill, who was vehemently opposed to the introduction of the Proposed In Order (albeit off the back of an imperfect understanding of its purpose and effect), gave the following oral evidence in answer to questions from me: [22] "Q. Under the Act, under the Fire & Rescue NSW Act, the Commissioner of Fire & Rescue NSW has a duty to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. Do you understand that? A. All practicable, yes. … Q. So, is your concern this, that notwithstanding that statutory duty, the Commissioner of Fire & Rescue NSW might or might be under pressure to prefer cost savings over fire fighter and community safety? A. No, Commissioner. My concern is that the policy approach of the government will give the Commissioner less to work with. Q. But you would be confident, would you not, and noting the strength of the position put in your evidence, you would be confident that the Commissioner, in discharging his functions, would not put cost savings over fire fighter and community safety? A. Absolutely, the Commissioner would do the best in the Commissioner's power to not ensure that that was the case - to not allow that to be the case. I've no doubt about the Commissioner's motivation in that regard."

Conclusions

For all of these reasons, I am not persuaded that the FBEU has sufficiently called into question the rationales offered by FRNSW for the introduction of the Proposed In Order, or the technology and methodology that underpin it, to warrant the Commission's intervention on that basis.

Safety considerations

The FBEU further opposed the Proposed In Order on the basis that it would result in adverse safety outcomes for both the public and firefighters. This formed a significant feature of the case advanced by the FBEU.
In large part, the FBEU's case was premised on the assertion that the Proposed In Order would increase the time it would take for an appliance and crew to respond to an incident. The FBEU submitted that if a station is taken off line then, all else being equal, the adjoining stations will have to cover the resultant gap which would in effect increase the response area of adjoining stations in order to cover the gap. [23]
This was a proposition with which Mr McNeil agreed. [24] FRNSW conceded that "all things being equal, there may be an increased risk to the public". [25]
The question becomes whether any such risk warrants the intervention of the Commission, or is properly to be left managed by the Commissioner of FRNSW within the purview of his statutory mandate. This brings into sharp focus the discussion above concerning the Commission's role in these proceedings and the orders it may ultimately make, particularly having regard to the discussion at [36]-[42] above.

Public safety and the implications for firefighters

The FBEU relied on Mr McDonough as an expert. He described himself as "a recognised expert in fire behaviour". [26] He did not disclose in his written evidence that he is a member of the FBEU, which is a matter to which I have had regard in determining the weight to attach to his evidence but which has not featured heavily in my consideration.
Mr McDonough gave evidence of the need to respond quickly to incidents with a sufficient amount of personnel and equipment. He attached to his report a number of international studies. His evidence included the following contentions: 1. based on research from the United States, the time to flashover in a normal residential dwelling is five minutes. He defined "flashover" as "the rapid and sustained transition from a growing fire to a fully involved fire (where flame and super heated fire gases fill the entire room space)" which "signal[s] an environment that cannot be survived for any significant time even with a firefighter's protective clothing and breathing apparatus"; [27] 2. fires are now releasing more energy and causing more rapid spread than ever before, making the need for early intervention greater than before; 3. research from Sweden suggests that a reduction in the median response time (nine minutes) by one minute could save up to five lives per year; 4. a New Zealand paper found a correlation between response time and the amount of structural damage; and 5. based on the research attached to his report and his own experience, "there is an inverse relationship between any delay in response time and the ability of FRNSW to save lives or properties". [28]
This evidence needs to be considered in light of several matters. First, Mr McDonough was ambivalent as to the equivalence of the firefighting environment in Sweden with the metropolitan and regional operations of FRNSW in New South Wales. It follows that care needs to be taken when applying conclusions based on Swedish research to an Australian context.
Second, Mr McDonough relied on an article by Henrik Jaldell of the Karsltad University in Sweden [29] . In that report Mr Jaldell drew the following conclusion (at p 706): "…The study finds a positive relationship between longer response time and more fatalities. The relationship is non-linear with the response time being most important for shorter response times, and then getting less and less important, eventually fading out. This means that response time is most important for short distances. People living a long way from the fire station in rural areas cannot expect the fire and rescue services to make much difference by shorter response times when it comes to saving lives."
Mr McDonough gave the following evidence under cross-examination: [30] "Q. And the main result of this particular study, as I understand it, is that there is a non-linear relationship between less response time and fewer fatalities, so that it's more important for shorter response times and then it gets less and less important and eventually fading out. So, as I understand that and I'm going to ask you whether my understanding is correct, but essentially it's very, very important if we're dealing in just minutes, the faster you can get there, definitely there is an increased likelihood that you will improve the outcome certainly for life and limb. And then it tails off quite significantly, such that after about 10 minutes it really doesn't make any difference at all to life and limb. Is my understanding correct? A. I would assume the same, yes."
Bearing in mind the cautionary note at [88] above, this evidence has particular resonance in the current proceedings, given that retained stations are more predominant in rural and regional areas of New South Wales.
Mr McDonough's further relied on an article by Neil Challands of the New Zealand Fire Service. [31] That article contained the following conclusions: "The implication of this is that for the majority (70%) of fires where the response is within four to eight minutes, a slightly speedier response will on average make only marginal difference (0.8% per minute) to the resulting structural damage. The difference may however be considerable for any particular fire." [32] "There is no discernible relationship between fire service response time and the occurrence of fire fatalities. This will confirm the belief general [sic] within fire services that occupants need to self-evacuate long before the fire service arrives." [33]
Consistent with these conclusions, Mr Callow accepted in cross-examination that after 10 minutes a fire crew would be unlikely to be looking at saving lives and property, but rather "protecting exposures". [34]
It was common ground that it takes a fully staffed retained station, on average, approximately 15 minutes to arrive at an incident. [35] In those circumstances, it is difficult to see on the evidence adduced by the FBEU how any additional delays would be significantly more likely to result in loss of life or property.
It was also reasonably common ground that where a permanent station moves up to a retained station, the local area will be better protected as the permanent crew will be able to respond more quickly to an incident than a retained one. This is a relevant consideration, albeit not a complete answer to the FBEU's concerns. While move ups would be permitted under the Proposed In Order, it could not happen in every case. There will be instances where retained stations will be taken off line.
Further, there was evidence to suggest that allowing for at least two firefighters to attend an incident with an appliance and engage in defensive firefighting might enhance public safety. Having firefighters attend in their own cars as provided for in In Order 2008/22, in the words of Mr Callow, would be "next to useless". [36] Mr Callow deposed that through engaging in defensive firefighting with the appliance the crew could prevent fire spread.
FRNSW submitted that since 2008 it has been taking retained stations off line as a result of staff shortages, as anticipated by In Order 2008/22. There is no evidence before the Commission that this has resulted in adverse safety outcomes to persons or property. I have taken this into account, but I have not placed great weight on the submissions. If I were to find that a particular practice was unsafe, the fact that a party has in the past avoided the ramifications of engaging in that practice is of little consequence and would not justify its continuation.
That said, in light of all of the evidence, I am not persuaded that to the extent that the Proposed In Order might increase response times, it would have a material bearing on public safety, either in terms of lives or property lost.
It follows that the FBEU's argument that an increase in risk to public safety has a corresponding and flow-on impact on firefighter safety loses its force. From the questions put to Mr Lewis in cross-examination, the FBEU appeared to contend that if firefighters engage in offensive firefighting and there is a delay in backup arriving, they may be at greater risk from the dangers of remaining in a burning building. Mr Lewis accepted the possibility that a delay in mounting an offensive operation could expose firefighters to additional risk. However, in the context of the cross-examination as a whole, Mr Lewis' concession was heavily qualified.
Having regard to the totality of the evidence, it is not apparent how a delay in response to an incident of itself would constitute an appreciable increase in the risks faced by firefighters today. Firefighters with FRNSW must conduct themselves in accordance with FRNSW's Standard Operational Guidelines ("SOG"). Under the SOG, firefighters would not engage in offensive firefighting without a full crew of four being present and it was otherwise safe to do so. It will not always be the case that more than one full crew will be dispatched to an incident.
For these reasons, and particularly having regard to my conclusion at [98] above, I find that to the extent that the Proposed In Order would increase response times to incidents, it would not result in adverse safety outcomes for firefighters. Any such increase in response times would not impose unfair or unreasonable demands on firefighters warranting the Commission's intervention.

Firefighter safety when responding to incidents

The FBEU further argued that the Proposed In Order, in permitting two retained firefighters to attend an incident with an appliance and engage in defensive firefighting pending the arrival of additional crews, would place firefighters at greater risk of harm. As already noted, under In Order 2008/22, where less than four firefighters are available to respond to an incident, retained firefighters can attend the incident to assist other crews, but must do so in their own vehicles. They are not permitted to take the appliance.
The gravamen of the FBEU's case is reflected in the following evidence from Mr McDonough: [37] "63. Not having sufficient number of personnel on scene, can also create a serious safety issue for firefighters. In my experience: (a) the public expectation is that once the firefighters arrive on site they will immediately enter any burning structure and start 'rescuing', especially if it is known that someone is, or could be, still inside; and (b) rightly or wrongly, the public expectation places enormous pressure on firefighters to do something even when it is unsafe for them to do so. 64. Further, in my experience there is a strong cultural expectation within the fire service that firefighters arriving on the scene will enter a burning structure to try to rescue people if there are people inside the burning structure even if they are placing themselves in danger by doing so. … 86. I am concerned that the two retained firefighters arriving on site will be faced with enormous pressure to do more than just maintain defensive firefighting strategies and that they will place themselves at risk by entering into burning structure without proper back-up. I therefore consider this change introduced by In Order 2019/20 to pose an unacceptable safety risk to firefighters."
Mr Lewis produced some of the SOG applying at FRNSW. SOG1.9 is titled "Incident Safety" and provides: [38] "FRNSW priorities guide the strategy and incident action plan (IAP) for the incident: • The first priority is the safety of firefighters • The second priority is protecting saveable lives. • The third priority is protecting saveable property and the environment. Resources should not be committed to save what is already lost." (Emphasis in original)
Mr Lewis gave evidence that FRNSW was rolling out "Bystander Engagement and Firefighter Readiness" training, which "aims to increase firefighter confidence in engaging bystanders when delivering core capabilities at emergency incidents, providing firefighters with the tools to perform under stressful conditions". [39]
It was common ground that it would be unsafe for less than four firefighters to engage in offensive firefighting, and that to do so would be contrary to the SOG and the training firefighters receive. In his second report, Mr McDonough stated: [40] "16. …Whilst I accept that highly disciplined, properly trained and experienced firefighters are generally likely to resist the temptations to ignore SOG and come up with safe and effective alternatives, I am concerned about the risk that some firefighters may give into the pressure to enter the burning building without proper back-up to try to carry out a rescue."
Mr Lewis and Mr Fewtrell each accepted under cross-examination that there was a risk that firefighters would disregard the SOG and their training and enter a burning building to rescue someone trapped inside.
The FBEU drew my attention to two incidents in which off duty firefighters entered burning buildings, without any protective equipment, in attempts to save lives. The firefighters received commendations from the Commissioner of FRNSW. The FBEU submitted: "105. Given the evidence that firefighters are prepared to enter a burning building without any protective equipment to try to save lives, the Commission may readily infer that two firefighters who are wearing protective equipment and who have access to a firefighting appliance will enter a building to rescue someone trapped inside, notwithstanding that the policies and procedures require them to maintain a defensive firefighting strategy. Any evidence to the contrary by FRNSW's witnesses should be rejected."
Once again, the matter before the Commission is not simply to identify a potential risk, but to determine whether it is of such gravity as to warrant the interference with the prerogative conferred on the Commissioner of FRNSW by the Fire and Rescue NSW Act. The risk asserted by the FBEU needs to be placed in the context of several factors. First, the Proposed In Order does not require retained firefighters to respond to an incident without a full complement of four firefighters. It is entirely optional. If they choose to attend, they do so in the knowledge that they will only be able to engage in defensive firefighting. Those firefighters who may be more likely to succumb to the temptation to enter a burning building will be able to avoid that risk by declining to attend.
Second, the evidence of the commendations given to firefighters for their bravery whilst off duty does not rise to the point of suggesting that FRNSW valorises such conduct to the point that firefighters would regard it as acceptable that they act in breach of the SOG or other policies and procedures of FRNSW with which they are required to comply.
Third, and perhaps relatedly, there is little evidence of a firefighter ever entering a burning building contrary to FRNSW's policies and procedures. Mr McDonough, who has been a professional firefighter for more than 34 years, was only aware of one incident where this had occurred. Mr Callow and Mr Finney, both of whom expressed their concerns about the risk, were not aware of any incidents where this had occurred and could refer only to "anecdotal evidence".
I accept that two firefighters arriving with an appliance are more likely to become actively involved in an incident than if they attend in their own cars to assist crews already on the ground. I also accept that, with the support of the appliance and other equipment, those firefighters may be more susceptible to the temptation to engage in offensive firefighting.
However, I am not persuaded that by allowing a minimum of two firefighters to attend an incident with an appliance the Proposed In Order materially increases the risks to firefighters. I do not accept the premise of the FBEU's case that, in essence, firefighters cannot be trusted to comply with FRNSW's policies and procedures, when the evidence overall suggests the contrary. The Proposed In Order does not, in this regard, impose unfair or unreasonable demands on firefighters.
The FBEU's Submissions included the following: "126. As noted above, the FBEU submits that the Commission should find that in the absence of any rigorous modelling or study by FRNSW it cannot be satisfied that the risk associated with the increase in response time can be adequately managed by moving appliances around within the network. If so, it would follow that implementation of the Proposed In Order is at odds with the Commissioner's overriding duties under s 5A of the FRNSW Act and the public interest. In those circumstances, requiring employees of FRNSW to be involved in the execution of the Proposed In Order is ipso facto unreasonable. Further, or in the alternative, the level of risk to firefighter safety posed by the implementation of the Proposed In Order is such that it constitutes an unreasonable demand."
For the reasons set out above, I do not accept these submissions.

Alleged breaches of the Awards

The FBEU contended that the purported introduction of the Proposed In Order would be in contravention of the awards applying to firefighters in two respects: 1. it would be a direction contrary to cl 42.2.1 of the Permanent Award and cl 32.2.1 of the Retained Award, which require that any direction issued by FRNSW be consistent with the provision of a safe and healthy working environment; and 2. it would amount to an extra claim in contravention of cl 43 of the Permanent Award and cl 34 of the Retained Award.
The first contention can be disposed of quickly. Having regard to the discussion above commencing at [82], and noting in particular the conclusions expressed at [98]-[101] and at [113], I do not consider that the introduction of the Proposed In Order would be inconsistent with the provision of a safe and healthy working environment. Further, I am of the view that a direction that firefighters comply with the Proposed In Order would be reasonable (cl 42.2.1 of the Permanent Award, cl 32.2.1 of the Retained Award) and would be consistent with "ensuring that the Department responds to relevant technological changes and changes in its operating environment in a timely and effective manner" (cl 42.2.2 of the Permanent Award, cl 32.2.2 of the Retained Award).
I also do not accept the FBEU's contention that the introduction of the Proposed In Order would be an extra claim in breach of the Permanent Award and the Retained Award.
The Commission has on many occasions stressed the importance that it attaches to "no extra claims" commitments in awards: see, for example, in 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 ("Teachers Case") at [16]-[18].
I have previously had to consider the construction of the no extra claims provisions in the Permanent Award and the Retained Award. The relevant provisions (cll 43 and 34 respectively) are in the same terms. In Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 ("PAD Program") I held: "26. 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: (a) extra wage claims; (b) claims for improved conditions of employment; or (c) demands with respect to the employees covered by the award; or (2) institute proceedings, claims or demands concerning wages or conditions of employment with respect to those employees before the Commission or any other industrial tribunal. 27. 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."
Relying on PAD Program, the FBEU submitted that the implementation of the Proposed In Order would amount to FRNSW making demands of its employees to change the manner in which their duties are performed. This was so for three reasons: 1. it would permit two crew members to take a pumper to an incident and maintain a defensive firefighting strategy, in contrast to the requirements of In Order 2008/22; 2. it would make demands of permanent crews to move up permanent appliances to cover retained stations that have been taken off line due to a shortage of retained staff, whereas at present a permanent appliance can only be moved up for "operational reasons"; and 3. if the Proposed In Order is implemented it will reduce the amount of overtime available to permanent firefighters.
I have already observed that the Proposed In Order makes it clear that it is entirely optional as to whether retained firefighters respond to an incident with an appliance with less than four crew members. I fail to see how this is relevantly a "demand" of the employees.
Further, unless an appliance has been taken off line, retained firefighters are presently able to respond to an incident with that appliance with a crew of less than four, provided that it is known that a full crew is available to answer the call. In circumstances where under the Proposed In Order a crew of two may respond with an appliance pending the arrival of another crew, this is not a significant change to the manner in which firefighters perform their work.
The move up of permanent appliances to cover a retained station in the event of a staff shortage is similarly not a change to the manner in which work is performed. As already observed, permanent appliances are constantly moved around the network for a variety of operational reasons. Rather than constituting a change to the manner in which work is performed, it is more a change to the circumstances in which that work might be performed.
As to the reduction in available overtime, it suffices to say that there is nothing in the Permanent Award which confers on permanent firefighters an entitlement to a particular amount of overtime. It follows that permanent firefighters are not being required to "relinquish or reduce any existing entitlements".
For these reasons I find that the introduction of the Proposed In Order would not constitute "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".
There is a further consideration. The Permanent Award and the Retained Award were made by the Commission in consequence of the decision of the Full Bench in Fire and Rescue NSW Firefighting Staff Awards 2021 [2021] NSWIRComm 1062. In that case the Full Bench observed: "Disputes Avoidance Procedures 132. Each of the Awards contains a provision titled 'Disputes Avoidance Procedures'. Those clauses are unexceptional and are in familiar terms. They provide a process by which 'claims, issues and disputes to be resolved while work proceeds normally', culminating in referral to the Commission if required. 133. The FBEU seeks to have the following additional provision inserted into those clauses: 'In the event that claims, issues and disputes have been raised under the disputes avoidance procedure in a predecessor Award, including disputes as to the implementation of the Public Access [Defibrillation] program, and at the time of making this award remain unresolved, they may continue to be progressed under this clause, and the status quo obligations remain.' 134. The FBEU submitted: 'Consultation, disputes clause and no extra claims clause 38. The proposed variations to the disputes avoidance and consultation clauses insert carve-outs for disputes which are presently before the Commission for resolution. These are significant matters which are better addressed through that ongoing process rather than an attempted resolution via these proceedings." 135. The Secretary submitted: "196. The Secretary regards this clause as unnecessary. 197. The cross-examination of both Mr McNeil and Mr McGuiggan was to the effect that 'it would be a shame to go back to square one' in respect of the disputes currently before the Commission, including in relation to the 'JZ relievers', 'In Order 2008-22' and 'public access to [de]fibrillation (Current Disputes). 198. Those questions appear to proceed from the premise that, if the proposed amendments were not inserted into the Award, then the Current Disputes would no longer be able to proceed in the Commission but rather, the parties would have to 'go back to square one'. 199. This is not the case in this Commission, as has been amply demonstrated by at least the long-running dispute relating to In Order 2008-22 which was initiated prior to the commencement of the Awards currently in place and has survived the expiration of at least one former Award. … 205. In the circumstance and the practice of the Commission, there is no need for amendment to the Dispute Resolutions Procedures sought by the FBEU.' (Emphasis in original, footnotes omitted) 136. In response, the FBEU submitted: '61. Fire + Rescue's resistance to this claim is based on past practice. The FBEU agrees that the disputes currently on foot can continue to be pressed and status quo obligations will be retained. Absent a clear undertaking to this effect by Fire + Rescue, however, it is in the interest of avoiding future disputation (noting that status quo disputes under this award are not infrequent) that this consensus be reflected in the Award.' … 138. Notwithstanding the views expressed by Mr McNeil, we accept the Secretary's submissions that the making of new awards to replace the Awards will not prevent the continuation of proceedings which are currently before the Commission, even if there is no change to the Disputes Avoidance Procedures. To that extent the amendment to the Disputes Avoidance Procedures is unnecessary, and it follows that the FBEU has not made out the case for change. We do not intend to make the change sought by the FBEU. 139. For an abundance of clarity, however, we emphasise that while we have declined to grant this aspect of the FBEU's claims, we do so on the basis that, for the reasons submitted by the Secretary, the making of awards to replace the Awards will not preclude disputes already before the Commission being progressed and finalised in accordance with the Act. We have carefully and deliberately noted the Secretary's position in this regard. No Extra Claims 140. The Awards each contain clauses titled 'No Extra Claims', which are again in reasonably conventional terms. Under those clauses the parties agree that 'during the term of [the] award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award'. … 142. The FBEU made only limited submissions in respect of this change. The reference to 'no extra claims' in the heading appearing before par 38 of the FBEU's submissions of 21 April 2021, reproduced at [134] above, is the only direct mention of the provision in those submissions. We presume that the submissions at par 38 apply also to the proposed changes to the No Extra Claims clauses."
It is difficult to reconcile the position taken by the FBEU in those proceedings with that taken in the present case. In the Teachers Case the Full Bench made the following observations: "21. …We agree with Wright J that a strict approach to the construction of no further claims provisions should be applied. That strict approach, however, must pay regard to the need for a 'sensible industrial outcome', which allows that 'meanings which avoid inconvenience or injustice may reasonably be strained for': see Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] per Kirby J, referring to the reasons of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184."
Even had I not reached the conclusion set out at [126] above, I would construe the no extra claims provisions so as to exclude the present matter. FRNSW's intention to introduce the Proposed In Order is not properly to be seen as an "extra claim" in ordinary parlance. The Permanent Award and the Retained Award were made in the knowledge and expectation that they would not preclude the continuation of these proceedings and their determination by the Commission. To accede to the FBEU's contentions would not promote a "sensible industrial outcome" and may visit inconvenience or injustice on FRNSW.

The relief sought

The FBEU seeks a direction to the effect "that FRNSW is not to implement the Proposed In Order insofar as it departs from the practices and procedures prescribed by In Order 2008/22". Such a direction, if made, would be tantamount to an injunction which would maintain In Order 2008/22 in apparent perpetuity.
FRNSW contended that the Commission did not have the power to make a direction in the terms sought. The parties traversed these issues at length in their submissions. Due to the conclusions that I have reached in this matter, as set out above, it is not necessary or appropriate that I explore these matters.

Conclusions

I find that the introduction of the Proposed In Order would not expose firefighters to increased safety risks or to industrial injustice such as to warrant the Commission's intervention. The FBEU has not presented a sufficient basis on which the Commission would interfere with the exercise by the Commissioner of FRNSW of the powers conferred on him by the Fire and Rescue NSW Act.
Further, I reject the FBEU's arguments that the introduction of the Proposed In Order would be in breach of the Permanent Award and the Retained Award.
For these reasons, there is no basis for the Commission to grant the relief sought by the FBEU, or any relief.

Order

In the circumstances, the appropriate order is that the proceedings be dismissed. I so order. Damian Sloan Commissioner

Endnotes

Exhibit FRNSW 5
Fire + Rescue NSW Closing Submissions, 3 December 2021 ("FRNSW's Submissions"), par 4
FBEU's Outline of Closing Submissions, 19 November 2021 ("FBEU's Submissions")
ibid., par 123-124
FBEU's Outline of Closing Submissions in Reply, 10 December 2021 ("FBEU's Reply Submissions"), par 25(b)
FRNSW's Submissions, par 9
Affidavit of Jeremy Fewtrell, 13 August 2021. I observe that in the passage cited the words "to ensure an adequate level of response coverage is maintained" were admitted on the basis that they reflected the objective of the system, and not necessarily its outcome.
Affidavit of Shane Kempnich, 16 August 2021
ibid., par 25(a)
Tcpt, 20 October 2021, p 14(30-34)
ibid., pp 15(42)-16(23)
Affidavit of Paul McGuiggan, 13 August 2021, par 41
Affidavit of Rob McNeil, 13 August 2021, par 41
ibid., par 32
Tcpt, 21 October 2021, p 15(36)
Tcpt, 21 September 2021, p 68(32-40)
ibid., p 45(32-35)
Affidavit of Paul McGuiggan, 13 August 2021, pars 20 and 29; Affidavit of Paul McGuiggan, 6 October 2021, par 52
Affidavit of David Lewis, 3 September 2021, par 20
Expert Report of John McDonough, 15 September 2021, par 34(a)
FRNSW's Submissions at par 9
Tcpt, 22 September 2021, p 57(15-38)
FBEU's Submissions, par 60
Tcpt, 21 October 2021, p 8(15-18)
FRNSW's Submissions, par 97
Expert Report of John Matthew McDonough, 13 August 2021 ("First McDonough Report"), par 2
ibid., par 31
ibid., par 48
H Jaldell, How Important in the Time Factor? Saving Lives Using Fire and Rescue Services (2017) 53 Fire Technology 695, comprising Annexure H to the First McDonough Report
Tcpt, 20 September 2021, p 49(31-41)
N Challands, The Relationships Between Fire Service Response Time and Fire Outcomes (2010) 46 Fire Technology 665, comprising Annexure K to the First McDonough Report
ibid., p 8
ibid., p 10
Tcpt, 21 September 2021, p 51(22-36)
FBEU's Reply Submissions, par 71
Tcpt, 21 September 2021, p 43(35)
First McDonough Report
Statement of David Lewis, 3 September 2021, Annexure B
ibid., par 14
Expert Report of John Matthew McDonough, 15 September 2021 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: 18 March 2022

[1994] NSWIRComm 127

[1999] NSWIRComm 123

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