Fire Brigade Employees' Union of NSW v Fire And Rescue NSW

Industrial Relations Commission (NSW)|2018-11-20

Judgment

In June 2018 the Fire Brigade Employees' Union of NSW ("the notifier") notified, pursuant to section 130 of the Industrial Relations Act 1996 (NSW), ("the Act") a dispute with Fire and Rescue NSW ("the respondent"). The subject matter of the dispute was the respondent's intention to use retained firefighters to deliver, across multiple areas within the State, training in a new administrative system. The notifier nominated the affected award as the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 ("the Permanent award"). As the proceedings developed it became clear that the award in question was in fact the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2017 ("the Retained award").
Despite several conciliation conferences conducted before the Commission and between the parties privately, the fundamental issue which gave rise to the dispute could not be resolved by agreement. A without prejudice arrangement, which had been applied in the past, was again applied on the recommendation of the Commission. Ultimately the matter proceeded to arbitration on 20 November 2018. The respondent made a submission that, as the particular factual dispute had been resolved by the without prejudice arrangement, there was no requirement for an arbitration of the underlying issues. I will deal with the point after reviewing the evidence.
Consistent with the directions of the Commission, the notifier filed, on 24 October 2018, a document which listed the questions which needed to be addressed for the purposes of an interpretation of the Retained award. The document also proposed an award variation following the making of that interpretation. On the same date the respondent also filed a document listing the questions for consideration in such an interpretation. There was a high degree of commonality in the questions identified by the parties. The questions proposed by the notifier were: "1. What is a "unit" for the purpose of the terms "Unit Trainer", "Unit Trainers" and "unit training" at subclauses 6.2.3, 6.4 and 6.5.2.1 respectively? 2. What is the meaning of the term "regular station drills" at subclause 6.4? 3. Does a Unit Trainer deliver "regular station drill" training only? 4. If the answer to 3 is no, then what is a Unit Trainer's rate of payment when delivering training otherwise? 5. Does a Unit Trainer deliver training only to their own "unit"? 6. If the answer to 5 is no, then what are a Unit Trainer's entitlements (including rate of payment) when delivering training to a different "unit"?" The respondent's version was in the following terms: "FRNSW believes a resolution of the FBEU's new claim would involve consideration of: 1. the definition of 'Unit Trainers' in Clause 6.4; and 2. the definition of 'regular station drills' in Clause 6.4; and 3. whether or not the application of Clause 6.4 is restricted solely to the 'Unit Trainer's' base station; or 4. if in the opinion of the Commission Clause 6.4 is sufficiently broad as to allow the 'Unit Trainer' to deliver training at regular station drills at a location other than their base station and still receive payment prescribed at Items W and X; and 5. the definition of the term 'maintain minimum staffing due to ... non-availability' in Clause 6.7."

The Award

In order to understand these questions, and answer them, it is convenient to set out at this point the relevant clauses of the Retained award. The terms referred to in the questions are emphasised in bold italics. Other terms requiring consideration are emphasised in bold. 4. Definitions "Brigade" for the purposes of this Award means any individual brigade of Fire and Rescue NSW constituted under the Fire Brigades Act 1989. … "Department" means Fire and Rescue NSW established by the Fire Brigades Act 1989 and as a Public Service Executive Agency under Schedule 1 of the Government Sector Employment Act 2013. … "Employee" means a person classified by the Department as a Retained Firefighter and appointed as a Volunteer Firefighter pursuant to the provisions of the Fire Brigades Act 1989. … "Incident" means a fire call or any other emergency incident attended by Fire and Rescue NSW. … "Retainer" means the relevant amount set out at the Entitlement Codes at subclause 6.3.1.1 that is paid per fortnight to employees in accordance with their classification, less the fortnightly equivalent of any contribution required pursuant to the Crown Employees (NSW Fire Brigades Firefighting Staff Death and Disability) Award 2012 or its successors. … "Union" means the Fire Brigade Employees' Union of New South Wales. 6. Rates of Pay and Allowances 6.1 Rates of pay and Retainers shall be paid in accordance with the Entitlement Codes for an employee's classification, as prescribed in subclause 6.3.1. The monetary amounts corresponding to the Entitlement Codes are as set out in Tables 1 and 2 of Part B, Monetary Rates. 6.2 The Retainers are paid in recognition of and compensation for the attendances and periods of declared availability required of employees by Clause 28, and include a loading in compensation for: 6.2.1 Annual leave loading. 6.2.2 The driving and operating of all vehicles operated by appropriately qualified employees as at 30 September 1999 and rescue and hazmat vehicles outside the GSA and the Newcastle, Lake Macquarie, Wollongong, Shellharbour, Central Coast and Blue Mountains Local Government Areas. The operation of any other vehicles shall be by agreement between the Union and the Department. 6.2.3 Rescue, Cordage, Hazmat & Unit Trainer capabilities and CBT qualifications required to be held under subclause 6.3. [1] … 6.4 Employees appointed as Unit Trainers shall receive payment at the rates prescribed at Items W and X when delivering training at regular station drills, for the duration of the drill. 6.5 Calculation of Payment for Duties Performed 6.5.1 Employees shall be paid, subject to the provisions of subclauses 6.5.2 and 6.5.3, for the total period of time spent performing duties, which shall be calculated as follows: 6.5.1.1 Attendance at Scheduled Weekend Training courses - the period of attendance shall be equivalent to the scheduled training hours. 6.5.1.2 Major Emergencies - Periods of attendance for the purpose of calculating payment shall be calculated having regard to the provisions of subclause 29.5. 6.5.1.3 Attendance at Zone Conferences - the period of attendance shall be equivalent to the scheduled hours of the conference. 6.5.1.4 Royal Easter Show - periods of attendance for the purpose of calculating payment shall be calculated having regard to the provisions of subclause 6.9. 6.5.1.5 In all other instances - employees shall be paid for the period that elapses from the time the employee signed on in the occurrence book at the employee's station, until the time such employee signs off in the occurrence book at the employee's station. 6.5.2 The minimum periods of payment shall be as follows: 6.5.2.1 Attendance at an incident, hazard reduction, and unit training - a minimum payment of one hour. All subsequent time thereafter shall be paid to the half hour. 6.5.2.2 Regular drills (of which there shall be two per station, per month) - a minimum payment of two hours. 6.5.2.3 All other authorised duties (excepting Travelling Time) - a minimum payment of one hour. All subsequent time to be paid to the minute. 6.5.2.4 Travelling time - where an employee is entitled to travelling time in terms of this Award, all such time shall be paid to the minute. 6.5.2.5 Relief Duties - where an employee performs relief duties in accordance with subclause 6.7 for three hours or less, such employee shall receive a minimum payment of three hours for each such relief. All subsequent time thereafter shall be paid to the minute. 6.5.2.6 Attendance at scheduled weekend training courses and zone conferences - a minimum payment of eight hours per day spent in attendance. 6.5.2.7 Except in the case of regular drills and authorised duties, where the purpose for which an employee was required to report for duty is completed, the employee shall be released. … 6.6 Authorised Duties 6.6.1 Where an employee is required to attend meetings or to perform other authorised duties, payment shall be made at the appropriate rate of pay for the employee's classification pursuant to subclause 6.5.1.5. Such authorised duties include, but are not limited to, those duties that are set out in Table 4 - Authorised Duties, of Part B, Monetary Rates. 6.6.2 Employees seeking to attend meetings and/or perform duties in accordance with subclause 6.6.1 which are not referred to in the said Table 4 must receive authorisation from the relevant Captain, Inspector or higher ranking officer prior to the performance of such duties. … 6.7 Relief Duties 6.7.1 Where an employee is required to maintain minimum staffing due to the non-availability of retained or permanent firefighting staff at another station, or permanent firefighting staff at the employee's own station, such employee shall be paid the amount prescribed at Entitlement Code "RD3" of Table 2 of Part B for the first three hours, or part thereof, and at the rate prescribed at Entitlement Code "RDH" of Table 2 of Part B for any period thereafter which elapses from the time the employee signed on in the occurrence book of the relief station, until the time such employee signs off in the occurrence book of the relief station. Provided that employees who perform relief duties in accordance with this subclause shall not attract additional payment under this Clause for attendance at incidents or performing authorised duties or drills during the period of the relief. 6.7.2 Employees who relieve at a station other than their own shall be paid the appropriate rate per hour prescribed for the employee's classification for the duration of the forward and return journeys between the employee's station and the location of the relief. All such time shall be paid to the minute. 6.7.3 Where it is necessary for an employee to use the employee's private vehicle to perform relief duties, such employee shall be paid the rate per kilometre prescribed at Entitlement Code "KM" of Table 3 of Part B for the forward and return journeys between their residence and their station, and the forward and return journeys between their station and the location of the relief. … 24. Training and Staff Development 24.1 The parties confirm their commitment to training and staff development for employees of the Department. 24.2 Employees covered by this Award shall be required to complete appropriate training to improve the productivity and efficiency of the Department's operations. 24.3 Employees shall be required to complete training in accordance with competency requirements as determined by the Commissioner. 24.4 An employee may be directed to carry out any duties appropriate to the employee's classification that are within the employee's level of skill, competence and training, provided that such direction does not promote deskilling. 24.5 Training Review Committee (TRC) 24.5.1 The TRC shall provide advice to the Commissioner on an effective and equitable system of training in Fire and Rescue NSW using the principles of Competency Based Training. 24.5.2 The structure of the TRC will consist of 3 representatives of the Department and 3 representatives of the Union. 24.5.3 The Chairperson of the Committee will alternate every 12 months between a nominee of the Department and the Union. 24.5.4 The role of the TRC will include (but not be limited to): 24.5.4.1 advising the Commissioner on the further development of training throughout Fire and Rescue NSW; 24.5.4.2 overseeing the implementation of a Competency Based Training regime throughout Fire and Rescue NSW; 24.5.4.3 considering Recognised Prior Learning (RPL) policy generally and in particular, it will consider individual applications for RPL. 24.5.5 Procedure 24.5.5.1 The TRC will meet at least once every four weeks, or as otherwise agreed between the parties. 24.5.5.2 Members of the TRC shall be released from day to day operations, except in the event of an incident or other emergency circumstances, for the purposes of fulfilling the above roles. 24.5.5.3 The TRC will be adequately resourced by the Department so that it can effectively fulfil the above roles. 24.5.6 The Commissioner is not bound to accept the advice of the TRC and may act independently of the TRC to implement changes to training within Fire and Rescue NSW provided that notice of any such decision to implement change is notified in accordance with clause 27.6, in which case clauses 27.7 to 27.9 inclusive shall apply. 28. Attendance and Availability Requirements 28.1 The following attendance guidelines shall apply to employees covered by this Award: 28.1.1 Attendance at Incidents - 28.1.1.1 Employees are required to attend a minimum of 33% of all calls received by the employee's brigade in any six month period. 28.1.1.2 Employees are also required to attend a minimum of 80% of all calls received by the employee's brigade during periods of compulsory availability in any four week period. 28.1.2 Attendance at Drills - Employees are required to attend a minimum of 75% of all regular drills conducted at their brigade in any six month period. 28.2 Any calls received or drills conducted during a period of approved leave or authorised absence shall be deemed to have been attended at the relevant minimum level, being either 33%, 75% or 80% subject to subclause 28.1, when determining an employee's levels of attendance. … 28.5 The attendance requirements referred to in subclause 28.1 may be altered by agreement between the Department and the Union. … 29. Attendance at Major Emergencies 29.1 The provisions of this clause shall apply to those employees who attend a Major Emergency which has, following specification as such by the Commissioner, been deemed to attract such entitlements. 29.2 Travel Entitlements 29.2.1 Employees who are required to collect their firefighting uniform from the station shall be paid in accordance with subclause 9.1.1.1. 29.2.2 Employees who are required to use their private vehicle to attend the incident or a "pick up point" that is not at their station, shall be paid at the rate prescribed at Entitlement Code "KM" of Table 3 of Part B, for the return distance from the station to the incident or pick up point. … 32. Employees' Duties 32.1 An employee may be directed to carry out duties which are within the limits of his or her skills, competence, and training, in such a manner, as may be required by the Department, provided that: 32.1.1 the direction is reasonable, and 32.1.2 the direction is not otherwise inconsistent with a provision of this Award. 32.2 Any direction issued by the Department pursuant to subclause 32.1 shall be consistent with: 32.2.1 the provision of a safe and health working environment, 32.2.2 ensuring that the Department responds to relevant technological changes and changes in its operating environment in a timely and effective manner. 32.3 The parties to this Award shall work collaboratively to ensure the effective and reasonable operation of this clause. Table 4 - Authorised Duties Attendance at: • Bushfire Management Committee Meetings • Local/District Emergency Management Committee Meetings • Local Government Meetings • Zone/Regional conferences and information days • Other such meetings as authorised by the Department. Completion of Fire Reports where insufficient time available at the conclusion of calls Testing of Fire Alarms Attendance at station to enable service and maintenance work to be carried out Station maintenance (i.e. lawn mowing, cleaning, BA and equipment checks) Performance of Engine Keeper duties Transporting FRNSW equipment in private vehicle Restowing of Firefighter vehicles Hose Repairs Transporting a Firefighting Vehicle for servicing and/or repairs from the Station to another location Recharging of BA cylinders Participation in selection committees Attendance at PR activities (i.e. open days, fetes, career markets, information displays, etc.) Attendance at Public Education activities (i.e. sessions in schools/community groups, smoke alarm campaigns) Participation in joint training sessions/exercises with other emergency services Attendance at training exercises/schools additional to the regular drill program Hydrant Inspections Pre-incident planning exercises

Relevant legislation

Relevant provisions of the Fire Brigades Act 1989 (NSW) [2] in force at the time the Retained award was made were: 3 Definitions (1) In this Act: Commissioner means the person employed in the Public Service as the Commissioner of Fire and Rescue NSW. … fire brigade means a permanent fire brigade or a volunteer fire brigade, but does not include a rural fire brigade. ... officer in charge, in relation to a place at which a fire brigade is present, means the Commissioner or, if the Commissioner is absent: (a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or (b) if no members of a permanent fire brigade are present, the person for the time being in charge of any members of a volunteer fire brigade present at that place. … permanent fire brigade means a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner. … volunteer fire brigade means any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade. 8 Establishment, maintenance etc of fire brigades For the purpose of exercising the Commissioner's functions under this Part, the Commissioner may: (a) with the approval of the Minister, establish permanent fire brigades and form or assist in the formation of volunteer fire brigades, and (b) provide permanent and volunteer fire brigades with suitable premises and requisite equipment, and (c) maintain permanent fire brigades, and (d) pay subsidies to volunteer fire brigades and make payments to the members of volunteer fire brigades 9 Volunteer fire brigades (1) The Minister may approve an association of persons as a volunteer fire brigade if satisfied that: (a) the association is formed for the purpose of extinguishing fires and of taking measures referred to in section 6 (2) in relation to hazardous material incidents, and (b) the carrying out of that purpose is not the sole or principal occupation or means of livelihood of those persons or a majority of them (whether or not they receive any payment for their services as members of the association). (2) The Minister may revoke such an approval at any time by notice in writing given to the captain of the volunteer fire brigade or published in the Gazette. (3) The trustees of any real or personal property of a volunteer fire brigade may vest that property in the Crown, to be held by the Crown subject to the provisions of this Act but free from any other trust. 37 Payments for voluntary services The Commissioner may make payments for voluntary or special services rendered to the Commissioner or to any fire brigade. (Emphasis added)
Relevant provisions of the Act are: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. And 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).

Interpretation of awards

The principles for the interpretation of awards are reasonably well settled: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] - [16]. The last decision referred to by Commissioner Seymour in that review of the authorities was Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23. In that decision, after an extensive review of the authorities Walton J, President, provided the following summary at [115]: "Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (1)The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2)The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3)Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4)The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6)The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ)." (Emphasis added)
The "refinements referred to by Street and French JJ" were those in their Honours' decisions in George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [3] respectively. In Bond Street J said: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. (Emphasis added) In City of Wanneroo French J said to like effect at [53] and [57]: 53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... 57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) vMcKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. (Emphasis added)
The last decision warranting specific recognition in this matter is the decision of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182. In an oft quoted passage his Honour said: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (Emphasis added)

The evidence

The notifier relied on two statements from Mr Chris Read, Senior Industrial Officer (from March 2005) and former State Secretary (from 1994 until 2005) of the notifier. In his first statement, Mr Read indicated that he had been involved in every major negotiation between the notifier and the respondent since 1994. He said the concept of "unit training" first appeared in the Retained award in 1994. The award was made on 5 October 1994, in addition to the term set out at [4] it made provision in cl 7.6 for Unit Trainers to be paid when receiving training as such a trainer. Clause 5.3.2 provided for the "introduction of the concept of unit training". Clauses 15.4 and 15.5 were in the following terms: "15.4 Subject also to the provisions of paragraph 5.3.2 of subclause 5.3 of clause 5, Intentions, Conditions and Commitments, the parties agree to the implementation of the unit trainer concept and accept that this is an effective method by which the training needs of local brigades can be met, particularly in the areas of: cordage - basic level; rescue - basic and advanced levels; first aid; hazardous material handling and general procedures; and station management 15.5 Successful applicants will receive appropriate training which will enable them to assume responsibility for the provision of basic training to their brigades." (Emphasis added) Clause 6.5 of the 2000 award provided: "6.5 Employees appointed as Unit Trainers shall receive payment at the rates prescribed at Items G and I when delivering training at normal station drills, for the duration of the drill. (Emphasis added)
Mr Read said that prior to 1995, a retained firefighter would only work with their own brigade. He attached a copy of "In Orders 1995/20" which introduced a provision to allow a retained firefighter to respond with another brigade. The particular provision dealt with circumstances in which the majority of members of a brigade work in their primary employment outside their Brigade's district thus reducing the number of firefighters ordinarily available to respond to a call to duty. The "In Order" permitted such firefighters to be called to turn out for the Brigade responsible for the district in which there primary employment occurs, if that Brigade has insufficient numbers, to ensure that safety is not compromised.
According to Mr Read the extensive hail storms in Sydney in 1999 saw retained firefighters deployed from across NSW to that emergency. As the Retained award did not make provision for such deployment the notifier and the respondent negotiated special conditions for the incident. That led to the subsequent introduction of the first Major Emergency clause in the 2000 award.
Mr Read also instanced:

a dispute about retained firefighters covering staff shortages at other brigades, either permanent or retained, which led to the introduction a Stand By rate of pay in the 2000 award which became the Relief Duty rate now prescribed in cl 6.7.
A dispute in 2018 about retained firefighters delivering training in ComSafe which led to a negotiated rate.

Mr Read asserted that training in regional areas and to retained firefighters is work that is normally performed by permanent Training Officers. He provided costings designed to show the efficiencies obtained by using retained firefighter Unit Trainers to replace the permanent trainers. That evidence is not relevant to the interpretation of the award but may be relevant to the variation of it at some point.
Also attached to his statement was "In Orders 1991/29" which rescinded an earlier "In Order" prescribing the "Drill Exercise Program for Volunteer Staff" and replaced it with a "structured Training Program for Firefighters (Retained). That training was to be delivered by Regional Training Officers. Also attached as Annexure J was the Station Training Program ("STP") introduced in 2012. That prescribed that retained firefighters were required to complete a minimum of four hours training per month in specified topics divided into two groups; the first group would be addressed in the first drill period of a month and the second in the second drill period of the month.
Mr Read's second statement was in reply to that of Assistant Commissioner Robert McNeil which was relied upon by the respondent.
Mr McNeil was Assistant Commissioner Metropolitan and Regional Operations. His responsibilities included the development and implementation of strategic plans relating to regional operations and management of the Directorate. He said that he had known the term "unit trainer" and related terms to refer to the unit of skill or competency being delivered by the training officer. He did not use that term or understand it to be used to refer to the location or station at which training occurs. The term "regular station drills" referred to the regular training drills conducted as part of the STP, a current copy of which was exhibited to his statement. He summarised the training requirements for retained firefighters in terms similar to that set out in [15].
The Assistant Commissioner also maintained that:

"minimum staffing" is managed only for operational response and not for training.
training was essential to meet the respondent's obligations under various pieces of legislation.
the concept of a Unit Trainer was introduced to facilitate training across the State in a number of disciplines or capabilities identified as "units" in order to respond to those training obligations.
training roles are open to appropriately skilled employees.
employees may become a Unit Trainer either by delegation from the station commander to deliver training within a regular drill or by responding to an internally advertised expression of interest, examples of which were attached to his statement.

Training provided and delivered under delegation from the station commander at regular drills under the STP is remunerated at the Captain's rate. That is common ground between the parties.
Unit trainers appointed pursuant to an expression of interest advertisement, once approved as a Retained Unit Trainer, remained qualified as such and may be called upon to deliver other training programs in specific competencies. Unlike for the training provided under delegation from the station commander, Mr McNeil did not attempt to identify the clause of the Retained award which prescribes the rate for delivery of training delivered under the expression of interest process. The Assistant Commissioner also provided costings for Unit Trainers travelling to other stations to deliver training. He disputed the costings contained in Mr Read's first statement.
Mr McNeil asserted that over the past two decades the notifier had not limited the training being delivered by Unit Trainers.
In his reply statement, Mr Read referred to the concept of Competency Based Training ("CBT") and said that was introduced in Australia in the late 1980s but "units of competency" were still largely unknown within NSW Fire Brigades or by the union in 1994. He said that when CBT did commence the awards were varied and the term used was "module" not "unit" and referred to the definitions of "module" in cl 4 Definitions of both the 1994 and 1997 Permanent awards. He said that the term "unit" meant a brigade or station and referred to "In Orders 1994/1" which make provision for brigade and unit commendations. He said the term was commonly used to describe a group of people and exampled "Rescue Units" and "Intermediate Hazmat Unit".
He referred to the negotiations which ultimately led to the inclusion of the concept of unit trainer in the 1994 award. He also referred to a range of developments in relation to unit trainers which had been negotiated in response to management decisions including:

extension of the concept of Unit Trainers to permanent firefighters in accredited rescue stations;
introduction of "casual" instructors to deliver Urban Search and Rescue Training;
use of retained firefighters to deliver training on the new SMART software system in 2015; and
Incident Management Training.

Mr Read said that the notifier had monitored advertisements for Operational Support positions since January 2016, following complaints by management that the regional training positions had become difficult to fill. He set out the results in a table. Similarly, a table was produced demonstrating the filling of training positions in the greater Sydney area in 2018.
Both witnesses were required for cross-examination. In his cross-examination Mr Read said that the union regarded the action by the employer as an "extra claim" in breach of cl 34 of the Retained award and he had included the costings to demonstrate the size of that claim and the degree of reform sought by the employer. In his cross-examination Mr McNeil agreed that there were real differences about the meaning of the term "unit" in the Retained award. He confirmed that the respondent's plan was to use "unit trainers" to deliver training not only to their own station but to other stations as well. He said that regional training in particular presented problems for permanent firefighters because of the amount of travel involved. Unit trainers by comparison, would not be involved in such a degree of travel.

Arbitration necessary or desirable

The evidence confirmed that there had been an ongoing disagreement between the parties over many years relating to the concept of "unit trainers" under the retained award. In particular whether utilisation of retained employees to provide training other than to their own Brigades was consistent with the award. The resolution of the issue had been addressed in particular factual circumstances on several occasions by the parties arriving at without prejudice settlements. It was, in my view, timely to assist the parties to resolve this ongoing dispute by an independent interpretation of the relevant provisions in the Retained award.
I therefore reject the submission by the respondent that the Commission, whether as a matter of power or discretion, should refrain from arbitrating this dispute.

Submissions

Mr Nolan submitted that the term "unit", for the purposes of the terms "Unit Trainer", "Unit Trainers" and "unit training" in subcll 6.2.3, 6.4 and 6.5.2.1, means the retained firefighter's own brigade. He submitted that the context of the award in general reinforced the "brigade based nature" of retained firefighter employment. He acknowledged that the award had been amended by consent, since the insertion of the Unit Trainer provision, to permit retained firefighters to perform duties other than with their own brigade in certain circumstances that are specifically identified in clauses 6.7, 6.8 and 29. The Captain's rate of pay for unit trainers had been selected because the training would be delivered by the unit Trainer in lieu of the Captain. He referred to the current STP, which describes the Station Commander as the training officer for their station and encourages the Station Commander to delegate delivery of certain subjects to other members of the crew.
The term "regular station drills", in subcl 6.4, means the two drills per month referred to in subcl 6.5.2.2. These contextual matters, he submitted, support the notifier's contention that the Retained award contemplates Unit Trainers delivering training to their own brigade only. Training across multiple locations and beyond the regular drill program is performed by permanent firefighters.
The disagreement between the parties demonstrates the ambiguity inherent in the Retained award and demonstrates the need for a s 175 interpretation.
Mr Nolan made a number of submissions about the dangers of the construction advocated by the respondent, in particular it would disturb the "fine industrial balance between retained and permanent employment". If the award were to be varied to permit the wider use of Unit Trainers it would be necessary to strike an appropriate rate of pay for the work.
The respondent submitted the current award provisions are "sufficient" to determine the appropriate pay and conditions of employees who are appointed as "unit trainers". There was no ambiguity in cl 6.4. The respondent submitted that the application to vary the award was inconsistent with the award being in its nominal term and constituted an "extra claim" which was precluded by cl 34.
The notifier's evidence as to the history of negotiations and award creation was irrelevant as subjective intentions of the parties are precluded from consideration by the principles of award interpretation. The objective intentions of the parties are to be ascertained, consistent with those principles, from the provisions in the award "having regard to the industry and industrial relations environment in which the award came to be made". The respondent submitted that the language of the award was "broad enough to allow for the appointment of unit trainers, where appropriate, without limitation".
The term "unit" is not defined in the Fire and Rescue NSW Act, the regulations or the Retained award. Its meaning should be ascertained from common use and practice. The respondent submitted it means a specific skill, competency or topic. It does not refer to a retained firefighter's own station or brigade. It is not and never has been the employee's own brigade or station.
Since the insertion of cl 6.4 into the Retained award the respondent has appointed "unit trainers" to conduct specific "units" of competencies or skills and instanced a number of examples. It also made submissions as to the merit of using "unit trainers" more broadly.
The context of the award, according to the respondent, demonstrates:

in cl 6.4 that unit training would preferably take place within regular station drills but was not restricted as to time or location or limited to such drills; and
through cl 6.2.3 its apparent that circumstances will arise where the captain or unit trainer is not available or does not have the requisite capabilities to deliver a "unit" of training by acknowledging that the retainer prescribed by the Retained award, includes a loading for among other things "Unit Trainer capabilities".

Clause 6.7 has no application to training. It applies only to operational response. The concept of "minimum staffing" is not relevant to training delivery but is about operational readiness and operational response.
The rate of pay for a unit Trainer is determined by the Commissioner and set out in the advertisement calling for expressions of interest.
The application to vary the award should be dismissed.
In reply, the notifier submitted that the submission of the respondent as to the common use in practice of the term "unit" was flawed in that it ignored the specific industry context and the history of the development of the clause. Further the reliance on the asserted history of the use of unit trainers was challenged as a matter of fact in some cases and on the basis that conduct post the introduction of the clause cannot be relied upon to construe the correct meaning of it. Assistant Commissioner McNeil's evidence as to how the respondent would like to use unit trainers is of no assistance in the construction of the Retained award.
The notifier did not rely upon cl 6.7 in any way therefore the respondent's submissions on the evidence of Mr McNeil about that matter can be ignored as irrelevant. Reliance on prior "without prejudice" arrangements is misplaced and should be ignored.
The variation sought by the notifier was not an extra claim. The claimed variation seeks to give effect only to the proper interpretation of the award and is entirely dependent upon success in the s 175 interpretation.

Meaning of "unit"

The construction of cl 6.4 begins by giving the words used in that clause their ordinary grammatical meaning. The word "unit" is argued by the notifier to refer to a group of people and by the respondent to be a skill, competency or subject matter for training. The Macquarie dictionary recognises both meanings. Relevantly, the first meaning recognised is that of a thing or person or any group of things or persons. The seventh meaning, in the context of education, is "a quantity of educational instruction, determined usually by a number of hours of classroom or laboratory work and by the passing of an examination."
In the current context the word clearly does have an educational bent in that it is part of a composite term with the word "trainers". The persons referred to as unit trainers "deliver training at "regular station drills". Although the term is used in the context of training, it is also used in the context of an activity conducted on a regular basis at a station. A "station" in this case is the base for a particular brigade. There is therefore also the context of a group of persons particularly when one considers the definition of brigade in the Fire Brigades Act discussed at [45]. The choice between the two contended meanings is not determined by simple recourse to a dictionary. And the question arises as to whether the "regular station drills" are only those conducted at the employees own station or may the training be delivered by the employee at regular station drills of other stations. The answer is not immediately apparent. It's appropriate therefore to have regard to the wider context of the award.
In that regard I begin with a consideration of the definition of brigade in cl 4 which directs attention to the definition in the Fire Brigades Act. That Act defines a fire brigade as either a permanent or a volunteer brigade. In turn a volunteer fire brigade is defined to mean an association of persons. That is quite distinct from the definition of a permanent fire brigade which is established and maintained by the Commissioner. Although the Commissioner may form or assist the formation of volunteer brigades, their character as an association of persons is important because the members of the brigade are part of that association and not others. Notwithstanding the characterisation of these brigades as volunteer brigades the Commissioner is authorised to make payments to the members of those Brigades for the provision of their services.
The next important aspect of the award is in cl 28. The clause deals with attendance and availability requirements. Retained firefighters are required to attend a minimum number of calls received by the employee's brigade in any six-month period and a minimum number of calls received by their brigade during periods of compulsory availability in any four-week period. They are also required to attend a minimum of 75% of all regular drills conducted at their brigade in any six-month period. The emphasis of course is on their brigade, that is, the association of which they are a member. Clause 28.2 credits employees with calls received and drills conducted during approved leave. It would make sense only in the context of a reference to calls received or drills conducted at their own brigade. Otherwise employees would receive credit for calls received and drills conducted at any brigade and the purpose of the clause would be undermined.
Clause 29 also refers specifically to the employees own station in subclause 29.2.2.
I have set out at [4] cll 6.5 and 6.6 of the Retained award. Clause 6.5 makes provision for the calculation of payment for duties performed. Those duties which are irregular, such as Major Emergencies and Weekend and Zone Conferences, which by their very nature are not likely to be confined to the employee's station, are dealt with specifically. Clause 6.5.1.5 makes provision for "all other instances" and provides that time shall be calculated from signing on at the employee's station to signing off "in the occurrence book at the "employee's station". Assuming an employee who is qualified as a unit trainer is required to deliver training to another brigade at another station, the period of duty would commence and end when the employee signs on and off at that employee's station. It seems incongruous that the Retained award would require payment for all of the time involved, including perhaps time sleeping or taking meals, between those two events. It is inconsistent with the provisions relating to entitlements when attending training courses and for travel compensation, cll 19 and 20, which exclude time for taking meals and sleeping. I note too that cl 19 does not relate to attendance at regular station drills.
These contextual considerations, practical though some may be, lead to the conclusion that the word "unit", and its cognate terms, refer to the brigade of which the employee is a member. That conclusion is strengthened by the history of the Retained Award. As I have noted at [10] the award variation which introduced the concept of unit trainers specifically accepted, in the then cl 15.4, that the trainers provided an effective method to meet "the training needs of local brigades". Even more persuasive are the terms of cl 15.5 which spoke of unit trainers assuming responsibility "for the provision of basic training to their brigades".
This is an award which dramatically demonstrates the wisdom of the observation of Street J in Bond. It needs to be considered in light of the customs and working conditions of the industry it regulates. That context is revealed by the legislation and the terms of the various awards which have been made over the years.
The Retained award was made to regulate pay and conditions of groups of people who came together as volunteers to form associations to serve their local communities by firefighting. The members were, and continue to be volunteers, whose primary employment is in other fields. The importance of the task these associations undertake has progressively been recognised by, for example, organised and obligatory training in fundamental firefighting skills and payments for holding themselves ready to respond and responding when required. The award is a prime example of one "couched in terms intelligible to" the parties and the words used are be given a meaning "consistent with the general intention of the parties". A prime example is found in cl 6.2.3.
In that subclause there is a reference to "Rescue, Cordage, Hazmat & Unit Trainer capabilities and CBT qualifications" required to be held under subcl 6.3. There is no reference to these capabilities in that subclause [4] . Clause 15.4 of the 1994 award, set out at [10], did refer to those and other fundamental capabilities. At some point these specific references were deleted, without any obvious adverse effect, because the parties understood the context.
The award has of course developed overtime. It has been modified to some extent by making provision for incidents such as major emergencies and the Easter Show. These were circumstances which extended beyond the local community and/or actual firefighting. Another such development occurred in 1994.
The intention then formed was to make further provision for training of the local brigades. The firefighters were required to attend two regular drills a month. During those drills they learned about firefighting and honed their skills in safely carrying out that task. The brigade Captain was principally responsible for delivering that training but the Captain was also a volunteer. There would be times when the Captain would be absent. It was decided that other members of the brigade would be taught to deliver training in place of the Captain. The language used to introduce the concept was unequivocal. The training the unit trainers delivered was to be to their local brigades during the regular station drills. I see nothing in the award which has departed from that intention.
I conclude therefore that the term "unit" in this context is the brigade of which the employee is a member.

Regular station drills.

It will be apparent from the above discussion that it is my view that the term as used in cl 6.4 refers to the drills contemplated by cll 6.5.2.2 and 28.1.2 conducted at the employees own station.

Relief duties

I agree with the submission advanced by the respondent that cl 6.7 does not relate to training. The concept of minimum staffing is directly related to operational standards to ensure a brigade can respond safely to a call. The notifier did not contend otherwise. Mr Read's evidence, summarised at [11], about the development of the relief clause confirms that position.

Authorised duties

Neither party made a submission directly related to the concept of authorised duties but for completeness it is appropriate to deal with it briefly. Assistant Commissioner McNeil's evidence as to the utility of using unit trainers to deliver training in regional areas at least implicitly relies upon such an authority in the Retained award or at least absence of any restriction in the award.
Among the clauses I have set out at [4] are cll 6.6. and 32. The first of those clauses is a general provision effectively authorising payment to a firefighter for performing "authorised duties". Table 4 of Part B establishes a standard set of duties which will be presumed to be authorised. If not listed, the onus is on the firefighter to receive authorisation to perform and be paid for such duties.
The second clause contains, in subcl 32.1, a relatively standard provision requiring employees to carry out duties as directed within the limits of their skills and competence. That may be thought to justify a direction to a unit trainer to deliver training to another brigade if the training is of a kind within his skills and competence. However subcl 32.1.2 limits the capacity to give such directions where they are "otherwise inconsistent with a provision of" the Retained award. The construction I have determined to be correct for cl 6.4 means that such a direction would be inconsistent with that provision.

Variation

I accept the notifier's submission that the variation sought does no more than clarify the existing terms of the Retained award and is therefore not contrary to the no extra claims clause. However, the utility of making such a variation at this point seems doubtful. This decision provides the clarification sought and in my view Mr McNeil's evidence as to the benefits to be gained from being able to utilise unit trainers in a more extensive way is convincing. The better course is for the parties to discuss the basis upon which the award should be varied to accommodate that development. If an agreement can be reached a consent variation can be made. If not, the parties wish to consider other alternatives.

Decision

Pursuant to s 175 of the Industrial Relations Act 1996 the Commission determines that, for the purposes of clause 6.4 of the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2017: 1. the word "unit" means the brigade of which the unit trainer is a member; and 2. the term "regular station drills" means the drills that employees brigade is required to conduct in compliance with cll 6.5.2.2 and 28.1.2 of the award.

Endnotes

Although the subclause suggests these capabilities are referred to in some way in subcl 6.3 there is no reference, specific or general, to them in that subclause. Ms Dinnen, in response to a question from the Commission, submitted the capabilities were implied. There is a reference to "competencies specified, by the Commissioner on the advice of the Training Review Committee" in subcl 6.3.4 but that takes the meaning of the term no further. Clause 24, set out below, deals with Training and refers in subcl 24.3 to completion of "competency requirements as determined by the Commissioner". The same clause also constitutes the Training Review Committee as an advisory committee to the Commissioner.
The Fire Brigades Act was amended, with effect from 26 October 2018, including by changing the title to Fire and Rescue Act 1989 and omitting references to "volunteer fire brigades" and substituting "retained fire brigades".
Identified at [102] - [104] of his Honour's decision
See footnote 1 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: 09 April 2020

Fire Brigades Act 1989(NSW)

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Judgment (14 paragraphs)

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Cases Cited (13)

Cited By (4)