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

Preliminary observations

1. Section 146(2) of the Act provides that in exercising its functions, the Commission must have regard to the public interest and, for that purpose, must have regard to, inter alia, the objects of the Act. Those objects are set out at s 3 of the Act, and include the provision of a framework for the conduct of industrial relations that is fair and just, and to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality.
2. Section 163 of the Act provides: 163 Rules of evidence and legal formality (1) The Commission - (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
3. To my mind, for the reasons set out below, the Motion called for the Commission to take an approach to these proceedings which was at odds with the objects of the Act and with s 163.
4. I also observe that on the terms of the Motion there was cause to question whether, had I been persuaded to make the orders sought, it would have resulted in the dismissal of the proceedings. This flows from the Motion seeking orders in respect of "the application", which is defined in the Motion as being the Relief Sought document.
5. The Relief Sought document was created as a consequence of the directions made by the Commission on 14 December 2022. It was a result of, but did not give rise to, these proceedings. It follows that I had some doubts as to whether rr 12.7 and 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") were available to "dismiss" that "application". Even were they to be so available, the "dismissal" of "the application" would not of itself result in the dismissal of the proceedings generally.
6. That said, the parties proceeded on the basis that the Motion sought orders for the dismissal of the proceedings generally. I approached the Motion accordingly.

Want of due despatch

1. FRNSW contended that the proceedings ought to be dismissed pursuant to r 12.7 of the UCPR, on the basis of a want of due despatch by the FBEU in prosecuting the matter. The basis of that contention was that the Relief Sought document did not comply with the direction made on 14 December 2022. FRNSW submitted that had the FBEU "properly prosecuted this matter it would have set out the precise terms of the Award sought and the precise directions and recommendations made". As things stood, so FRNSW contended, neither it or the Commission is able to understand "what is being sought" and it was not for the Commission or FRNSW "to anticipate what [the FBEU's] case might be".
2. Section 63(3) of the Civil Procedure Act 2005 relevantly provides: 63 Directions with respect to procedural irregularities (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. … (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1) - (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. …
3. Rule 12.7 of the UCPR confers a discretion on the Commission to dismiss proceedings or make such other order as it thinks fit if an applicant "does not prosecute the proceedings with due despatch". The principles that inform the exercise of that discretion were summarised by the Full Bench in Bizuneh v Industrial Relations Secretary (Department of Communities and Justice) [2020] NSWIRComm 1040 ("Bizuneh") at [27]-[29]. It is not necessary to reproduce those passages.
4. It suffices to say that the circumstances of this case bear little resemblance to those considered by the Full Bench in Bizuneh or in the authorities which the Full Bench cited in the passages referred to. There has been no egregious or repeated failure by the FBEU to comply with the Commission's directions. The FBEU filed the Relief Sought document within the time required by the direction of 14 December 2022.
5. The contest between the parties came down to them having different understandings as the effect of that direction. The FBEU maintained that the Relief Sought document was one "setting out with precision the form of relief sought from the Commission in these proceedings". FRNSW argued that the direction contemplated that the FBEU would file in complete form a draft of the award it sought to have the Commission make.
6. It was open to FRNSW to clarify with the Commission whether there had been compliance with its direction. It could have sought a further direction if it considered that the Relief Sought document was inadequate for it to properly comprehend the FBEU's case. It did neither of those things.
7. I was not persuaded by FRNSW's submissions that neither it or the Commission could properly understand the case being advanced by the FBEU. The relief it seeks is sufficiently clear from the terms of the Relief Sought document.
8. Further, as the FBEU submitted, it would be an unusual approach for the Commission to invite the parties to enter into a contest as to the form in which an award should take, in advance of determining that an award ought to be made. The Commission routinely defers the drafting of an award until after the Commission has determined the terms which any award should contain. This is often left to the parties, in the form of directions that the parties confer as to short minutes to give effect to the Commission's orders.
9. For these reasons, I was not persuaded that FRNSW had made out a basis for the proceedings to be dismissed pursuant to r 12.7 of the UCPR.

No reasonable cause of action

1. FRNSW submitted in the alternative that the proceedings should be dismissed pursuant to r 13.4 of the UCPR, which provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
2. FRNSW contended that the proceedings did not disclose a reasonable cause of action. This contention was based on the following arguments: 1. any award containing the provisions set out in the Relief Sought document would be contrary to the no extra claims commitment in cl 43 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2022 ("Award"); 2. such an award would not comply with the requirements of ss 10 and 15 of the Act; 3. as a matter of discretion, the Commission would not make the award sought; 4. the Commission does not have the power to make the directions sought, and would not do so as a matter of discretion; and 5. the Commission may have the power to make the recommendations sought (although that is subject to doubt), but would not do so as a matter of discretion.
3. FRNSW referred me to Singh v Charles [2022] NSWSC 743 in which Garling J observed: "13. In A v Dept of Communities and Justice [2021] NSWSC 937, I summarised the relevant legal principles with respect to summary dismissal, which it is convenient to reproduce here: '[19] Before a court can summarily dismiss a claim, the Court must be persuaded that the case for the dismissal is very clear. [20] The principles guiding the exercise of the Court's power to order summary dismissal of proceedings are clear and of long-standing. The ordinary course of litigation ought generally be allowed to take place. That is because a litigant with a proper cause of action is entitled to expect that they will not be denied the opportunity, after taking advantage of the usual interlocutory processes, to put their case before the Court for judicial determination on the merits. [21] But this ordinary expectation is not unconstrained. The rules of Court permit proceedings to be summarily dismissed in appropriate circumstances. The rules exist to balance the litigant's ordinary expectations on the one hand, with the right of the opposing party on the other hand, not to be vexed by litigation in which a proper cause of action cannot be reasonably identified, or if the proceedings are vexatious, oppressive, or an abuse of process. [22] In 2016, in Pi v Zhou [2016] NSWCA 24, Gleeson JA said at [9]: "It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: 'So obviously untenable that it cannot possibly succeed'; and 'manifestly groundless', but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46] ; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] (French CJ and Gummow J)."' 14. In considering whether to order summary dismissal, the Court needs to exercise caution, and to be satisfied that the certainty of the outcome of the litigation, rather than merely an assessment of prospects of success, has been demonstrated by the applicant: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30]."
4. In Bizuneh the Full Bench observed: "33. What is clear from the authorities is that a case should not be dismissed on the basis that there is no reasonable cause of action quickly and a party seeking to have a matter dismissed must reach a very high threshold before a party will be denied the opportunity to have their case heard."

No extra claims provision

1. Clause 43.1 of the Award provides that "during the term of this 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 and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal".
2. The Commission has on many occasions stressed the importance that it attaches to "no extra claims" commitments in awards: see, for example, Re Corrections Health Services Nurses' Award (1999) 90 IR 235 at 245; [1999] NSWIRComm 123 (Wright J); Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 at [16]-[18]. FRNSW directed my attention, amongst other cases, to the observation of Commissioner Newall in Rail, Tram and Bus Union (NSW) v Secretary for Transport (2017) 267 IR 122; [2017] NSWIRComm 1032 at [32] as to "the very narrowness of the range of circumstances in which a party may - not will, but may - not be held to the undertakings it gave in a no extra claims clause".
3. The FBEU contended that cl 43 of the Award had no bearing on the matter, as it was not seeking a new entitlement but the payment of existing Award entitlements to affected employees. In the event that the dispute was regarded as giving rise to an extra claim, the FBEU noted that the Award had passed its nominal expiry date of 25 February 2023 (cl 44.2) and as such any such claim was not one "during the term of this award" within the meaning of cl 43.1.
4. Whether some or all of the employees affected by the dispute have an Award or other entitlement to a particular allowance is a matter of controversy between the parties. If that controversy is resolved in FRNSW's favour, there may be an argument that the FBEU's claim is an "extra claim" within the meaning of cl 43 of the Award, although that is open to debate. FRNSW effectively sought to have this question predetermined, in the absence of evidence or submissions on the point, by the Commission simply accepting as true its assertion that the relevant employees had no entitlement to the allowances sought by the FBEU on their behalf.
5. I was not persuaded that FRNSW had demonstrated, to use the language of Garling J in Singh v Charles, "the certainty of the outcome of the litigation". It merely posited its preferred construction of the Award.

Sections 10 and 15 of the Act

1. In so far as it relied on s 10 of the Act, the case advanced by FRNSW in this respect may be summarised as follows: the Award was made pursuant to s 10 of the Act; given the terms of that section, the Award is presumed to set fair and reasonable conditions of employment; an applicant for terms that are different to those contained in an applicable award must rebut that presumption; and, there is no evidence that would justify a conclusion that the Award does not provide fair and reasonable conditions of employment. In support of its contentions, FRNSW cited City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 at [11]-[13].
2. The controversy between the parties as to whether the FBEU is seeking "different" or "extra" terms had a bearing on my consideration of this ground. I accept that if the position of the FBEU is to seek a new award which does no more than confirm the terms of the Award, questions might arise as to whether as a matter of discretion the Commission would make such an award. That, however, goes to the form of relief that the Commission might order under s 136 of the Act, not to the unavailability of relief at all.
3. Even were it to be accepted that the Notification calls for the creation of a new award with terms that are different to those in the Award, the position advanced by FRNSW did not warrant the summary dismissal of the proceedings. FRNSW submitted that there is "no evidence that would justify a conclusion that the existing award provisions do not provide fair and reasonable conditions of employment". The fact that there is no such evidence is in part reflective of the Motion having been brought on an interlocutory basis. The question to my mind was whether FRNSW had established that no such evidence could be adduced. Once again, the position advanced by the FRNSW was more akin to inviting the Commission to predetermine the outcome of the question, as opposed to demonstrating that there was no question to be addressed.
4. FRNSW's reliance on s 15 of the Act was consequential to its reliance on r 12.7 of the UCPR. That is, by failing to file and serve a copy of the award in the terms it was seeking, the FBEU had failed to specify a commencement date for the award as required by s 15.
5. This contention is largely addressed by the observations I have made in respect of FRNSW's reliance on r 12.7 of the UCPR. It is, in any event, misguided. Section 15(1) of the Act provides that the commencement date of an award is the one "specified by the Commission".

Discretionary reasons not to make an award

1. FRNSW submitted that there were "discretionary reasons as to why the Commission would not make an Award". In broad terms, it contended that the Notification was an attempt by the FBEU to circumvent the dispute avoidance procedures in cl 35 of the Award. It called on the FBEU to raise its concerns "in the proper forum and participate in industrial relations at the enterprise level".
2. The FBEU submitted that it had attempted but failed to resolve its concerns at the local level. Only when those attempted failed had the Notification been filed.
3. I was not persuaded that FRNSW had established on its evidence that there had been any failure by the FBEU to meet its obligations under cl 35 of the Award. Moreover, in the context of an application for summary dismissal, it does not suffice for FRNSW to ask the Commission to accept at an interlocutory stage that it "would not" exercise its discretion under the Act. To my mind, the suggestion that the Commission's discretion to make an award may be enlivened by the proceedings is inconsistent with an application for dismissal under r 13.4 of the UCPR.

Power to make the directions sought

1. FRNSW contended that the Commission does not have the power to make directions in the terms sought by the FBEU. It submitted that the Commission's power to make directions under s 136(1)(a) of the Act does not extend to making directions which would set terms and conditions of employment. It cited, amongst other cases, Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069 ("LGEA v MidCoast") at [74].
2. The FBEU submitted that LGEA v MidCoast could be distinguished from the circumstances of the present matter. It also foreshadowed that it would submit that LGEA v MidCoast was wrongly decided.
3. Again, the controversy between the parties as to whether the Notification is properly to be regarded as seeking the creation of new entitlements for the affected employees, or the recognition of existing entitlements, had a bearing on my consideration of this ground. The existence of such a controversy, requiring for its resolution a consideration of evidence and submissions, did not support an application for summary dismissal of the proceedings.
4. FRNSW further argued that as a matter of discretion the Commission would not make the directions sought. In this regard, I repeat my observations at [44] above.
5. It must also be recognised that the Commission is not a court of strict pleading. If the Commission determines to exercise its discretion under s 136 of the Act, it is not constrained by the terms of the relief sought by the notifier. The arguments advanced by FRNSW as to whether the Commission could, or indeed should, make the directions sought by the FBEU were premised on a tacit assumption that no options were available to the Commission, other than to make an award, directions or recommendations strictly in the terms contained in the Relief Sought document. That was a false premise
6. The Relief Sought document sets out the relief sought by the FBEU. It may provide a framework within which the arbitration is conducted, but it would not fetter the Commission's discretion if the Commission were satisfied that the FBEU had made out a case for intervention.

Power to make the recommendations sought

1. FRNSW questioned whether the Commission has the power to make recommendations in the terms sought by the FBEU. It referred me to Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 ("Ministry of Health v APA") at [55]-[56][ and [70].
2. At [70] of Ministry of Health v APA Walton J observed that the Commission should not recommend that a party do something that is unlawful. FRNSW contended that the giving of a recommendation in the terms sought by the FBEU would be contrary to that guidance, in that it "would be to encourage both parties to sidestep the requirements for lawfully making an award or giving a direction". It further submitted that "there is a serious question as to whether [the Commission] could make a recommendation" in the terms sought.
3. I observe that to the extent that there is "a serious question" as to the Commission's powers to make the recommendations sought, it argued against the summary dismissal of the proceedings.
4. In any event, the arguments advanced by FRNSW in this regard were not compelling. In essence, its position was that the Commission could not, or would not, make a recommendation in circumstances where an award or direction could not be made. There are three observations to make in this regard. First, it is premised on acceptance of FRNSW's contentions that the Commission could not, or should not, make an award or directions in the terms sought by the FBEU. I have dealt with those issues already.
5. Second, it is inconsistent with the observations of Walton J in Ministry of Health v APA as follows: "68. It is therefore important to acknowledge that the Commission can make a recommendation to do something that otherwise can not be made in the form of a direction, dispute order or award (whether because of a legal technicality or otherwise) or where it is highly undesirable to make a coercive order: see, eg, LGEANSW v MidCoast Council at [71]; Australian Education Union, NSW Teachers Federation Branch v Department of Education [2019] NSWIRComm 1039 at [91] (Commissioner Tabbaa AM FRSN). A recommendation can also provide for a procedure by which any remaining unresolved issues can be resolved: see, eg, Teachers Award at [14]." (Emphasis in original)
6. Third, and on a related point, the position advanced by FRNSW came close to suggesting that a recommendation is interchangeable with an award or a direction. This was a contention rejected by the Full Bench in LGEA v MidCoast at [34] and [70].
7. To the extent that FRNSW submitted that as a matter of discretion the Commission would not make recommendations in the terms sought, I repeat the observations at [44] and [49]-[50] above.

Whether proceedings are frivolous

1. The third order sought in the Motion is that the "application for recommendations" be dismissed "on the basis that proceedings as to the making of a recommendation would be frivolous". While the provision was not cited, I assumed that FRNSW relied on r 13.4(1)(a) of the UCPR.
2. FRNSW's written submissions included the following: "28. While the Commission has the power to make a recommendation, there is a serious question as to whether it could make a recommendation in these terms. Were the Commission to find that there was some such theoretical possibility that a recommendation could be made in circumstances, where an Award or direction could not, those proceedings would be frivolous in the sense used in Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 at [40]: The term is defined in the Shorter Oxford Dictionary as 'of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense'; and in the Macquarie Dictionary as 'of little or no weight, worth or importance; lacking seriousness or sense'. The term 'frivolous' is regularly used in conjunction with the term 'vexatious', as is the case with rule 13.4 of the UCPR." (Emphasis in original)
3. This was a troubling submission. It set at nought both the fact that the legislature has included the power to make recommendations amongst those it has conferred on the Commission under s 136 of the Act, as well as the value of any recommendation that the Commission might make. How else is one to comprehend a contention to the effect that proceedings that seek only the making of a recommendation must ipso facto be frivolous and amenable to being struck out?
4. In Ministry of Health v APA Walton J explored the Commission's powers to make recommendations. His Honour made it clear, with respect, that in his view recommendations may have utility and add value in the resolution of industrial disputes. The FBEU directed me in particular to his Honour's observations at [57] of the decision, that the Commission's views "come with the authority of a trusted specialist institution which results in recommendations being very persuasive".
5. Having regard to these matters, I accepted the following contentions in the FBEU's written submissions: "46. The real truth of the submission is that Fire + Rescue does not agree. The submission only makes sense if it is underpinned by that party being utterly disinterested in the Commission's views and entirely unwilling to accept any recommendation that it alter course. 47. This is a position that, strictly speaking, Fire + Rescue may be able to take (noting that the intervention of a binding Award obligation to participate in dispute resolution proceedings in this Tribunal may add complexity). 48. It is not an approach which the Commission ought to encourage, here by accepting Fire + Rescue's invitation to simply shrug its shoulders, abandon its statutory duty to attempt to resolve the dispute, and send the Union on its way simply because Fire + Rescue wishes to maintain its current position. 49. Dismissing the application on this basis would not so much erode confidence in the Tribunal's functioning as an independent mediator between the Crown and its employees as destroy it. It is frankly surprising that the position has been advanced at all."

The wages policy

1. In its submissions in reply, FRNSW contended that the FBEU "does not appear to contest the submissions [of] the respondent to the effect that the proposed award does not comply with the wages policy and therefore does not comply with s 146C of the Act". It went on to submit that an award cannot validly be made if it is inconsistent with the Act.
2. I could find no reference to s 146C of the Act or to the wages policy in either the Motion or in FRNSW's submissions in chief. The only reference appears to be in Mr McMartin's statement at par 8, in which he describes the New South Wales Public Sector Wages Policy 2022 as applying to FRNSW. Leaving that aside, the FBEU submitted at the hearing of the Motion that "if there's a present entitlement, there's no cost increase as a matter of logic".
3. This is yet another question whose answer depends on a resolution of the controversy between the parties as to whether or not the employees affected by the dispute have an entitlement, under the Award or otherwise, to the payment of certain allowances. For the reasons already stated, the existence of that controversy and its significance to the objections raised by FRNSW in support of the Motion argued against the summary dismissal of these proceedings.

Conclusion

1. For the reasons set out above I determined that FRNSW had failed to establish that grounds existed under either r 12.7 or r 13.4 of the UCPR for the proceedings to be dismissed. The only proper order in those circumstances was that the Motion itself be dismissed Damian Sloan Commissioner

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