Fire Brigades Employees' Union v Industrial Secretary in respect of Fire and Rescue NSW [2025] NSWIRComm 1099

1. Permanent firefighters are engaged as members of fire brigades pursuant to the Fire and Rescue NSW Act 1989 (NSW) (the Fire and Rescue Act). At the time of the hearing, their employment was regulated by the Permanent Award. The Permanent Award establishes a comprehensive framework governing the terms and conditions of employment, including matters such as remuneration, classification structures, rostering arrangements, and leave entitlements. These provisions operate alongside the statutory obligations imposed by the Fire and Rescue Act to ensure the effective and efficient delivery of firefighting and emergency services throughout New South Wales.
2. Retained firefighters are employed under the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023 (the Retained Award). Retained firefighters work on call and must have minimum availability so that each retained fire station meets minimum staffing requirements.
3. For the purposes of these proceedings, and in accordance with s 70 of the Fire and Rescue Act, the Industrial Relations Secretary is deemed to be the employer of permanent firefighters. However, the Commissioner of Fire and Rescue NSW retains and exercises specific employer functions, including decisions relating to the dismissal, suspension, and reinstatement of employees, as well as matters concerning discipline, promotion, and transfer
4. On 14 August 2025, the Full Bench of the Commission issued a decision concerning the making of a new award to apply to permanent firefighters, to be titled the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2024 (the 2024 Award). The Commission determined that the new Award would operate from 26 February 2024 and would replace the existing Permanent Award.
5. However, as at the date of this decision, the 2024 Award has not yet been formally made as the parties are still engaging in conciliation before Commissioner McDonald. Accordingly, the matters currently before the Commission are to be determined by reference to the Permanent Award which remains in force.
6. The parties filed a document titled "Agreed and Disputed Facts" on 7 August 2025. Certain matters initially identified as being in dispute within that document were subsequently conceded during the hearing. While some factual issues remain contested, the essential facts of this matter are not in dispute and may be summarised as follows:

(1) Zone Offices were created around 2006 after a restructure/redistribution of resources throughout FRNSW. Seven ''areas'' were created to geographically cover all of NSW. Within each area there were three zones, with a total of 21 zones across NSW. Within the 21 zones, there are currently 335 fire stations. The stations consist of:

(a) Permanent Stations, at which permanent firefighters work.

(b) Retained Stations, at which retained firefighters work and

(c) Mixed Stations, at which both permanent and retained firefighters work.

(2) A Zone Office will generally include the following employees: Zone Commander, Duty Commanders, and administrative staff to manage the operational needs of fire stations within the zone.

(3) Relieving Station Officers, Duty Commanders and Relieving Inspectors are all Station Based Positions. Duty Commanders are based in the zone office and coordinate a number of stations.

(4) Since 2019, FRNSW has assigned RSO positions to the WM3 Zone Office located in Katoomba. At present, two RSO positions are assigned to that zone office. However one of those positions, which is the subject of this dispute, is currently vacant.

(5) The principle issue in the dispute is whether the reference to "station/location" in clause 25.1.1 permits a RSO to be assigned to a location (in this case a zone office) other than a station.

(6) The MW3 Zone Office is based in Katoomba. It is on the same parcel of land as the Katoomba Fire Station, which is a mixed station (with both permanent and retained firefighters).

(7) The RSOs in the MW3 zone work a G/H Platoon roster which is essentially the default roster for the MW3 Zone Office under clause 22.2.1 of the Permanent Award. The G/H rosters are referred to as the "Overlap Roster System" described by clause 22.5, consisting of a four-day a week day roster- 7am to 5.30pm, with Friday and Monday off every second week.

(8) Relieving employees, including RSOs, cover shortages of staff to meet minimum staffing requirements. In doing so, relieving employees are entitled to the relieving provisions set out under clause 25 of the Permanent Award, which include:

(a) a relieving allowance of $39.42 per shift, and

(b) a kilometre allowance of $1.46 per kilometre if required to transport the employee's gear for the distance travelled on the forward and return journey between the base station/location and the relief station/location.

(9) The current model of relief under which relieving employees work has been in place since the time that minimum staffing requirements were introduced. It is a model whereby, for each rank of operational firefighter, there are a specified number of relieving firefighters, Station Officers, and inspectors, who can work across different stations or locations.

(10) The RSO positions are filled initially through Regional Transfer Registers established under clause 28 of the Permanent Award. Clause 28 prescribes a process by which firefighters place themselves on a transfer register list, and when a position becomes vacant, it is offered to the firefighter on the top of the list at the time, in the order that they were placed on that list. If they decline the offer, the firefighter is removed from the list and the offer is put to the next firefighter on the list and so forth until the offer is accepted.

(11) Operational firefighters are assigned to annual leave groups and take their annual leave at a specified time throughout the year. Relieving employees are directed to fill shortages caused by the scheduled leave throughout the zone they are attached to.

(12) Clause 22.2.1 of the Award provides that firefighters work the default roster in place at their station or location. The current roster at permanently staffed fire stations is a 24-hour roster, and firefighters permanently attached to a station work that roster. The default roster at the Zone Office is a weekday day work roster. Accordingly, any firefighter attached to the Zone Office, according to FRNSW works that roster by default.

(13) Under the Award, FRNSW cannot require a RSO to work an alternative roster when performing relief duties. It is, however, longstanding practice that when a RSO relieves for a Station Officer on annual leave, the RSO may elect to work the 24-hour roster for that period, and such elections have been accommodated.

1. The issue at the heart of this dispute is not new. The issue first arose back in 2019, when the decision was first made to assign the RSOs in the MW3 Zone to the zone office.
2. There was a dispute between the parties about whether there was meaningful consultation with the FBEU prior to implementing the decision in 2019 to assign the RSOs to the MW3 Zone Office. In his witness statement, Mr Murray West, Assistant Commissioner Operational Assurance and planning positively asserted he had a number of discussions with Mr Timothy Anderson, Station Officer and Country Sub-Branch Secretary on the State Committee of management of the FBEU at the time and no dispute was raised about the creation of these RSO roles.[1] Mr Anderson gave evidence to a different effect. Based on the documentary evidence provided I accept that the parties were in dispute at least by 2020.
3. The FBEU filed a s 130 Dispute notification with Commission on 11 March 2021. That dispute was listed for compulsory conference on 16 March 2021 before Commissioner Stanton.[2] The relevant parts of the 2021 dispute notification provided:

"A) Throughout late 2020, the FBEU and Fire and Rescue NSW (FRNSW) have been in dispute regarding the following key issues relating to firefighters in regional;/ country areas :

i. Placing relieving operational Station Officer roles at the zone office.

a) FRNSW have a 'relief pool' of firefighters at the Station Officer rank who are relied on primarily to fill short term absences (including annual leave and long service leave) across permanent stations.

b) In regional and country areas there are roughly 15 relieving Station Officer positions. These positions have always been based at a fire station. When the Station Officer is not undertaking relief work at other stations, he or she attends their base station.

c) During late 2020, FRNSW looked to place 4 of these relieving Station Officer positions into a zone office. This has not been the custom and practice.

d) A zone office is staffed mainly with administrative officers and is not suitable to accommodate operational firefighters.

e) The zone office does not have changing facilities, decontamination rooms, resting areas or other amenities. These facilities therefore present substantial work health and safety hazards to FBEU members.

f) By letter dated 16 November 2020, the FBEU outlined its concerns in further detail. At the time, the change related to two positions located in the Katoomba zone office however later expanded to include other areas."

1. The dispute notification annexed correspondence between the parties dated 16, 17 and 20 November 2020, 19 and 25 January 2021, and 25 February 2021. The parties attended a conciliation via telephone on 16 March 2021 before Commissioner Stanton. A review of the Commission's file reveals that two further listings of the matter (in March and April 2021) were subsequently vacated at the request of the parties. Further correspondence between the parties was before the Commission dated 17 and 23 March 2021 revealing a meeting was scheduled between the parties on 31 March 2021.
2. On 18 June 2021, FBEU Senior Industrial Officer, Ms Sourlas wrote to the Commission and advised that the parties had held meetings to progress the matter and the union was considering a draft proposal from FRNSW and requested the "matter to remain open" for a further 4 weeks to allow the union time to consider the proposal and have further discussions with FRNSW or return to the Commission for assistance.
3. On 21 June 2021, the Commission issued an order that the matter remain open until 26 July 2021. There were no further requests to re-list the matter from the parties and subsequently the file was closed by the Commission. Mr Anderson's evidence is that as far as he understands it after 18 June 2021 there were no further meetings. This was during the period that Sydney was in lockdown due to the pandemic and "there were a large number of competing priorities for the FBEU to address". [3]
4. On the evidence before me following the commencement of the 2021 dispute, FRNSW reversed its decision to assign Relieving Station Officers to zone offices in other zones, including Port Macquarie, Albury and Wagga Wagga. I observe that this reversal demonstrates that the practice was not essential to operational requirements and could be discontinued without material detriment.
5. Mr Anderson's evidence was that the outcome of the dispute reached between the parties was that FRNSW and FBEU would consult on a new relieving model:

"I was in attendance at the conciliation and the outcome from the conciliation was that the parties agreed that the Department and the FBEU would consult on a new relieving model. I saw this as an acknowledgment that assigning relieving Station Officers to a zone office was a change to the model of relief, and that a new model of relief was the only way the Department could enact this change."[4]

1. In its further submissions dated 22 August 2025, the FBEU acknowledged that the matter had not been before the Commission since 2021 but contended that it remained an active issue between the parties. The union relied on the inclusion of clause 25.22 in the Permanent Award and the evidence of Mr Anderson to support its position that the matter continued to be regarded as in dispute, notwithstanding the absence of active proceedings before the Commission.
2. The FBEU submits that, although no new relieving model was implemented, the earlier dispute was never resolved. It contends that clause 25.22 of the 2023 Award was inserted by agreement of the parties in recognition that the relieving model required review. FRNSW, on the other hand, asserts that there was no continuing dispute regarding the assignment of RSOs to the MW3 Zone Office and that it was unaware of any issue until April 2025, when the present dispute was notified. FRNSW further denies that the inclusion of clause 25.22 in the Permanent Award was for the purpose advanced by the FBEU.
3. It was not in dispute that, following July 2021, the matter was closed and was neither relisted nor pursued in the Commission by the FBEU. The FBEU did not notify a further dispute under the dispute resolution procedure in the Permanent Award until, at the earliest, April 2025.
4. I am not satisfied, for the reasons outlined above, that there was an active dispute between the parties after 2021 (and prior to the notification of dispute in April 2025). I do not accept that clause 25.22 was inserted into the Permanent Award in 2023 as a direct consequence of an unresolved dispute. Rather, the evidence supports the conclusion that the clause was included for broader purposes relating to future review of relieving arrangements, not as a continuation of the earlier dispute over assigning RSO's to a zone office in the MW3 Zone.

1. In the recent arbitrated Award proceedings before the Full Bench,[5] the Secretary sought to amend clause 25.22 of the Permanent Award by removing the consultation requirement and deleting the words: "No changes in relation to the operation of this clause or relieving will be introduced without agreement of the employer and the Union." The Full Bench declined, noting the clause had recently been introduced by consent to address overtime costs, and indicated that if the agreement requirement later impeded reform, FRNSW would have a strong case for amendment under principle 9.4 of the Award Making Principles.
2. FRNSW submitted in the current proceedings that it remains willing to consult regarding a review of clause 25.22 but contended that any obligation to do so arose under the previous award, which expired on 25 February 2024. In light of the Full Bench's decision to retain clause 25.22 in the new Award, it is unnecessary to determine that issue.
3. The observations of the Full Bench make clear that clause 25.22 was introduced by consent to facilitate a cooperative review of relieving models as part of measures to address FRNSW's significant overtime expenditure. While the requirement for union agreement remains, the Full Bench expressly contemplated that this may be revisited if it impedes necessary reform.

1. The genesis of the current dispute does not appear to be particularly controversial and is set out in the witness statements of Mr Morris and the affidavits of Mr James Forde, Station Officer and Mr Anderson filed in these proceedings. Mr Forde was not required for cross-examination, and his evidence was largely not contested.
2. Mr Forde is a station officer attached to 001 station City of Sydney under a 24 hour default roster and resides in Wentworth Falls. Mr Forde had been on the residential transfer register for the Blue Mountains since 2017. By April 2025 Mr Forde was at the top of the residential transfer register for the Blue Mountains and, in accordance with clause 28.4 of the Permanent Award, was offered the vacant RSO position in the MW3 Zone on or around 9 April 2025. After he was offered the position, he was then informed that the position would be at the zone office with his roster being a G platoon 4 days per week, weekday roster.
3. Mr Forde expressed concerns about the roster and his placement at the zone office, which he raised with the FBEU. His evidence was that the roster in place at the zone office did not accommodate his childcare and other personal commitments, and that it did not make sense for the role to be located at the zone office.
4. The FBEU raised these concerns with FRNSW and advised FRNSW that at that point Mr Forde was not in a position to decide whether to accept the transfer because he wanted to know what the conditions of employment would be.
5. Mr Forde' evidence is that he was not aware prior to applying for the RSO position that the G/H overlap roster would apply to the vacant RSO position.
6. The parties met on 2 and 16 April 2025 to discuss the issue. During those discussions, the FBEU requested that FRNSW refrain from filling the vacant RSO position pending further consultation. FRNSW did not agree to that request. Mr Forde was subsequently advised that he had been removed from the residential transfer register as he did not accept the position. FRNSW then proceeded to offer the vacant RSO position to the next person on the residential transfer register for the Blue Mountains.
7. On 17 April 2025 the State Secretary of the FBEU, Mr Leighton Drury issued a Code Red directive instructing members not to apply for the RSO position in the MW3 zone while the matter remained in dispute.
8. The terms of the Code Red issued by the FBEU are as follows:

"The Department is currently in the process of transferring Relieving Station Officers to MW3 and assigning them to the Katoomba Zone Office. This is done solely so that these members are denied the opportunity to work a roster in line with their counterparts attached to stations, without any additional remuneration. Despite the FBEU's attempt to work with the Department to reach a resolution, the Department has opted to forge ahead.

This being the case effective immediately, no Station Officer is to accept or request any transfer to a Relieving position that is assigned to a Zone Office in MW3

This Code Red remains in place until lifted by the State Secretary."

1. Mr Forde was placed at the bottom of the residential transfer register for the Blue Mountains. This materially disadvantaged him by delaying access to a position closer to his residence. On the evidence, he will likely wait several more years before obtaining a residential transfer nearer to home.
2. Counsel for FRNSW acknowledged this as a "difficult outcome"[6] but submitted that the MW3 zone roster arrangement had been in place for six years and was not concealed and therefore should have been understood by employees on the transfer register. I accept Mr Forde's unchallenged evidence that he was unaware the Relieving Station Officer (RSO) position was attached to the zone office until the offer was made.
3. It was clarified in oral submissions in reply that Mr Forde was offered the next available vacancy - RSO in the zone office - only upon moving up the Blue Mountains residential transfer register. At that point, he became aware of the nature and conditions of the position. I note that the transfer provisions in clause 28 apply to any vacancy and are not confined to relieving officer positions.
4. I accept Mr Forde's uncontroverted evidence that he would have accepted the vacant RSO position in the MW3 zone had it been based at a fire station, consistent with his original understanding and with a roster aligned to other operational firefighters.
5. In the proceedings, FRNSW indicated its willingness to engage in consultation under clause 25.22, but submitted that this should not prevent the continuation of the practice that had been in place since 2019 in the MW3 Zone. By the time of the hearing, no discussions had occurred between the parties regarding Mr Forde.
6. Mr West's evidence is that he made the decision to "attach" the RSO to the MW3 Zone Office in or around 2019 and place them on the overlap roster:

"I decided it was appropriate to attach the Relieving Station Officer roles to the MW3 Zone Office and place them on the Overlap Roster System, because:

a. The Relieving Station Officer positions would need to relieve across stations in the entire zone, including retained stations and mixed stations. The need to relieve for permanent firefighters (at mixed stations) would typically arise when employees were on leave. The need to relieve at retained stations would typically arise due to a lack of available retained firefighters at any time.

b. There are a large number of retained stations in this zone. There are two mixed stations (ie with permanent and retained firefighters), being Katoomba and Springwood; and twelve retained stations at Blackheath, Glenbrook, Lawson, Leura, Lithgow, Lithgow West, Mount Victoria, Portland, Richmond, Wentworth Falls, Wallerawang, and Windsor. Accordingly, I anticipated that the RSOs would be primarily required on day shifts, meaning an Overlap Roster System was appropriate.

c. By being based out of the Zone Office, RSOs could act up into the Duty Commander role as necessary and also work closely with the Duty Commander (who worked day shifts). In this way, the position would provide a good promotional pathway for the RSOs. Given this, having the RSOs work at the same time as Duty Commanders (ie on day shifts) struck me as appropriate."[7]

1. I observe there was no evidence that the RSO's had ever acted up in the Duty Commander role, and I note in any event this was described as a 'promotional pathway' and not part of the normal duties of the role.
2. Mr Anderson gave evidence that he attended a meeting on 2 April 2025 with Mr Morris, Chief Superintendent Metro West Mr Hogan, Mr Genders (Manager Operational Staffing), and Adam Coleman, a Relieving Station Officer for Metro West, and that:

"It was made clear at the 2 April meeting that the Zone Office was not in any way an intended workplace for the ROs. It was made clear that the ROs do not report for duty there, the RO who is assigned to the zone office in attendance at the meeting did not even have a key to access the office, despite working in the role for several years, and they were merely administratively assigned to the Zone Office for the purpose of the Department enforcing their preferred default roster."[8]

1. Mr Morris disputed the suggestion that RSOs were not required to attend the zone office. He stated that RSOs may report to the zone office at the commencement of their shift if they have not been directed in advance to another station or location. He further conceded that, in practice, due to high leave volumes and staff shortages, RSOs almost always receive assignments ahead of time or contact their duty commander before the shift begins to obtain an assignment and then travel directly to the designated station or location.[9]
2. I make the following observations about this evidence:

(1) There is no evidence before the Commission that RSO's are ever directed to report for relief duty at another location, other than a fire station. In fact, the evidence is that RSOs relieve for scheduled or unscheduled leave of firefighters or retained shortages.

(2) Mr Morris conceded that due to the high volume of shortages they are "almost always" already on assignment or report to duty at another station/location.

(3) Mr Morris does not state the basis of his knowledge.

(4) Further, Mr Morris did not address or deny Mr Anderson's evidence that, in the relevant meeting, it was made clear RSOs do not report for duty at the zone office and were merely administratively assigned there for the purpose of enforcing the Department's preferred default roster.

1. For the reasons as stated above I accept the FBEU's evidence on this issue over that of FRNSW.
2. Mr Morris did not dispute that Mr Coleman, the RSO in the MW3 Zone, lacked a key to the zone office. He stated only that the issue was not reported until the meeting when the matter was raised.
3. The evidence before the Commission is that most shortages at retained fire stations occur during the day on weekdays. Mr Anderson gave evidence that:

"In both the above-mentioned meetings, the Department also advised that the purpose of having ROs on a day shift roster was to fill shortages at retained fire stations. Retained fire stations often have shortages, due to the availability of the retained firefighters, who work on-call. There must be a minimum availability of retained firefighters for each retained station, to meet minimum staffing requirements. If there is not enough availability, these shortages need to be filled by a firefighter performing relief at that station. The Department expressed that, because most shortages for retained stations occur during the day, on weekdays, having a Station Officer fill these shortages is preferrable for the Department."[10]

1. FRNSW submitted that requiring RSOs to work the roster in force at permanent fire stations within the MW3 Zone would reduce their availability for day shifts from four days in seven under the G/H roster to two days in eight. FRNSW contended that this would significantly limit its capacity to cover shortages at retained stations, necessitating overtime engagements at Station Officer level. It further submitted that, on their two-night shifts, RSOs would generally be surplus within MW3 and may need to be deployed to other zones in Greater Sydney.[11]
2. A further matter in dispute concerned whether the two RSO positions in the MW3 Zone were being utilised to cover planned and unplanned leave of permanent Station Officers, or whether they were primarily deployed to address weekday shortages of retained firefighters within the zone. Mr Anderson's evidence was that the RSO's in MW3 Zone are being used to fill retained firefighter shortages rather than to provide relief for Station Officers on scheduled leave. As a consequence FRNSW continues to rely on overtime to cover vacancies arising when Station Officers take leave, rather than using the RSO's for their intended purpose.[12]
3. Mr Morris disputed this evidence and stated that RSOs in the MW3 Zone are deployed to cover scheduled leave of Station Officers and, in the first instance, to cover unscheduled absences of Station Officers where such absences coincide with their default G/H rostered hours, as well as to address shortages of retained firefighters. This evidence suggests that RSOs may continue to work their weekday G/H roster even when performing relief duties for planned or unplanned absences at a station. It was agreed that FRNSW cannot require relieving employees to transfer to an alternative roster unless they elect to do so as referred to above.
4. It is apparent that RSOs in the MW3 Zone currently perform two distinct functions: first, providing relief for Station Officers when their rostered hours on the G/H Overlap Roster coincide with an absence; and second, addressing shortages of retained firefighters.
5. Mr Morris's evidence is that consistent with an agreement reached with the FBEU in 2007[13] when permanent members are utilised to fill a vacancy at a retained fire station the first vacancy should be filled by a station officer where available and if a station officer is not available the department shall use a senior firefighter. In cross-examination Mr Morris conceded that the "agreement" states that a "Station Officer will be used to fill a retained position where available", as opposed to the positions may only be able to filled by station officers.[14]
6. The FBEU relied upon Standing Orders- Version 34- 2 July 2025 Updated to Commissioner's Orders 2025/13[15] that provides the priority for the allocation of "spare staff" as follows:

"Priority allocation of spare operational staff

Spare operational staff (ie relievers and out duties) are to be used to fill vacancies in a uniform manner as follows (brackets indicate the OT reason code):

2.1 In the first instance, spare operational staff should be used to cover approved scheduled leave, such as Annual Leave (AL), Long service leave (LS), Training (TI and TE) and Special Leave (SP).

2.2 spare operational staff should then be used to cover unscheduled leave such as Sick Leave (SLM, SLMN), Personal carer's Leave (SLPC), Sick Leave-Workers Compensation (SLW), Compassionate Leave (CMP) and Special Situation (SS).

2.3 Remaining spare operational staff should be used to cover vacancies caused by any other reason, such as Consolidated Leave (CL), Peron Short (PS), Late Fire call (LF), Secondment (SEC), Retained Shortages (RES), and other reasons (OTH)."

1. On the evidence, FRNSW utilises RSOs to cover shortages of retained firefighters when they are not required to relieve planned or unplanned absences of permanent firefighters.
2. FRNSW conceded, in the hearing that currently no other RSO in NSW is assigned to a zone office outside of MW3 Zone. There is not a general practice of assigning RSOs to a zone office in Fire and Rescue NSW, in fact it appears to be an anomaly within the MW3 zone.
3. I accept that this practice has been adopted by FRNSW in the MW3 Zone for operational and practical reasons. Although no evidence was presented regarding the arrangements in other zones, Counsel for FRNSW properly conceded that Port Macquarie, Wagga Wagga, and Albury also have a significant number of retained fire stations, similar to the MW3 Zone, as do other regional areas. In response to a question concerning the arrangements applicable to RSOs in those areas, FRNSW submitted that some zones do not have an RSO position. It was further submitted that each zone operates under different circumstances, and some zones do not contain any permanent fire stations, in which case there would be no requirement for an RSO in that zone.
4. On the evidence before me, I find that the variability in rostering arrangements across zones reflects operational realities rather than a consistent statewide framework. While this flexibility may be necessary to address local staffing requirements, it creates a risk of inconsistency in the application of Award provisions governing hours of work and relief arrangements. The Award prescribes minimum conditions that apply irrespective of geographic or operational differences, and compliance cannot be contingent upon local practice. Accordingly, while I accept that FRNSW's approach is driven by practical considerations, it does not obviate the need for rostering arrangements in all zones to conform with the Award. This finding reinforces the conclusion that any roster, including the G/H overlap roster, must be assessed against the Award to ensure compliance and fairness, rather than adopted solely on the basis of convenience or operational preference.
5. There was limited evidence before the Commission as to the day-to-day arrangements in the MW3 Zone when an RSO performs relief duties at another station. The only direct evidence relates to circumstances where a Station Officer at a permanent station proceeds on annual leave. In such cases, the RSO requests to transfer to a 24-hour roster at the station where relief is provided for the duration of the leave, and FRNSW grants that request. There is no evidence that this occurs other than in relation to planned annual leave.
6. The evidence indicates that when an RSO in the MW3 Zone is relieving at a retained fire station - which is the predominant arrangement - the RSO continues to work under the G/H overlap roster applicable to the zone office. It is less clear what occurs when an RSO relieves at a permanent station for unscheduled absences such as sick leave. I accept Mr Morris's evidence, and the parties' submissions, that FRNSW cannot direct RSOs to adopt a standard roster to cover temporary vacancies; any change to roster must be at the election of the employee.
7. While it is accepted that the G/H overlap roster is preferable and more convenient for FRNSW's operational purposes, convenience alone cannot justify its adoption. Any roster must comply with the provisions of the relevant Award.
8. This raises a significant issue not identified by the parties and warrants further consideration. With the agreement of the FBEU, FRNSW is deploying RSOs to cover shortages of retained firefighters, who are employed under a different award. Such deployment is not contemplated by the Permanent Award. The terms of the Permanent Award do not apply to retained firefighters, and vice versa.

1. The central issue in this dispute relates to the proper interpretation, application, and operation of clauses 22 and 25 of the Permanent Award. Understanding their interpretation and operation requires a consideration of not only the terms of those clauses, but their place and purpose in the scheme of the Permanent Award viewed as a whole. It is convenient at this point to set out some of the relevant clauses of the Permanent Award, with the terms requiring consideration emphasised in bold**.**
2. The Permanent Award applies to all "employees" as defined:

""Employee" means a person, other than an employee covered by the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award, employed in one of the classifications covered by this Award, as a member of Fire and Rescue NSW in terms of the provisions of the Fire and Rescue NSW Act 1989. Provided that where "employee" is referred to in the provisions of this Award which apply exclusively to either Operational Firefighters, Non-Station Based Position or to Executive Officers, "employee" shall mean only those classifications to which the exclusive conditions are intended to apply."

1. Clause 43, Classifications, relevantly provides "All employees covered by this Award will be employed in one of the following ranks...", being Recruit Firefighter, Firefighter, Qualified Firefighter, Senior Firefighter, Leading Firefighter, Station Officer, Leading Station Officer, Inspector, Superintendent and Chief Superintendent.
2. An "Operational Firefighter" is defined in clause 7 as follows "a firefighter classified as one of the following: Recruit Firefighter; Firefighter; Qualified Firefighter; Senior Firefighter; Leading Firefighter; Station Officer; Leading Station Officer; or Inspector". Superintendent and Chief Superintendent are not Operational Firefighters. An Inspector may also be an Operational Firefighter. Inspectors in station-based roles perform the duties of a Duty Commander. Duty Commanders report to a Zone Commander and are responsible for ensuring the operational readiness of stations within their zone.[16]
3. As noted in the definition of Employee, the Award draws an important distinction between "Station Based" and "Non-Station Based" positions (defined in clause 7):

'Station Based Positions' are those that are located generally at fire stations or zone where the primary role of the position is operational and emergency response or the management of operational and emergency response including employees employed in Communications Positions.

'Non- Station Based Positions' are all positions which are or can be held by employees covered under this Award that do not meet the definition of "Station Based Positions" (including those previously known as Operational Support Positions)."

1. Clause 46, Station Based and Non-Station Based Positions, relevantly provides:

"46.1 All employees covered under this Award, along with their substantive rank, will occupy either a Station Based or Non-Station Based position.

46.2 Station Based Positions are those that are located generally at fire stations or zone where the primary role of the position is operational and emergency response or the management of operational and emergency response including employees employed in Communications Positions.

46.3 Non- Station Based Positions are all other substantive positions which are or can be held by employees covered under this Award including those previously known as Operational Support Positions."

1. As noted earlier in these reasons, RSOs have been a feature of the Permanent Award since it included minimum staffing commitments. Clause 32, Safe Staffing and Systems of Work, record the core of that minimum staffing commitment. For present purposes, I note two of its central features. First, it identifies the "total" minimum established number for Firefighters, Station Officers and Inspectors for Station Based positions (clause 32.3.2, part of the Safe Staffing Promotions in clause 32.3). Second, it provides (at clause 32.1 - 32.2):

"32.1 The parties have agreed for reasons including employee health, safety and welfare, Table 1 of Schedule 3 outlines the minimum safe staffing arrangements for all Station Based Positions in relation to the number, qualification and rank of employees allocated to an appliance.

32.2 Except in the event of an emergency situation, any alteration to the number, qualification and rank of employees required to be allocated under this clause and Table 1 of Schedule 3, may be implemented for a period not exceeding 7 days by agreement between the parties, and can be extended by further agreement, which will not be unreasonably withheld. Any such agreement or dispensation shall be confirmed in writing."

1. Table 1 of Schedule 3, identifies the minimum number of staff, and their minimum qualifications, to operate the appliances deployed in the delivery of the FRNSW's activities. For example, a "Pumper" appliance requires "1 Station Officer + 3 Firefighters", with a minimum qualification of "1 Motor Driver", and a "HAZMAT Pumper" appliance requires "1 Station Officer + 3 Firefighters", with minimum qualifications of "1 Motor Driver, 2 Hazmat Technicians".
2. Hours of work are dealt with in clause 22. The general provision with respect to hours is in clause 22.1 in the following terms:

"Subject to subclauses 22.2.2 and 22.2.3, the average ordinary working hours of Operational Firefighters shall be forty hours per week over the cycle of weeks for which the rosters of ordinary hours of duty and leave operate. All rosters include, in addition to the average forty ordinary hours per week, an average per week of two hours of thirty-eight hour week leave accrual which shall be accumulated and added to annual leave accrual and taken in accordance with clause 35, Annual Leave."

1. Clause 22.2, Arrangement of Rosters, sets out the elaborate scheme of rostering contained within the Permanent Award, commencing with clause 22.2.1:

"22.2.1 Subject to subclause 22.9, Operational Firefighters shall work the roster in operation at the station/location to which they are permanently attached and this roster shall be known as their default roster. No default roster shall allow rostered shifts in excess of fourteen hours duration. Any proposed change at any location from one roster system to another, or to a new roster system, shall only occur following agreement between the Department and the Union."

1. Clause 22.2.2 - 22.2.4 provide for rules around an "alternative roster". Clauses 22.3 - 22.6 set out a number of rostering arrangements including Standard 10/14 Roster System (clause 22.3), the Back to Back Roster System (clause 22.4), the Overlap Roster System (clause 22.5), and the Special Roster System (clause 22.6).
2. The Standard 10/14 Roster System is based on four platoons working one of four roster lines (labelled A to D) providing either three or four shifts over the course of a week, rotating Day (0800 - 1800) and Night (1800 - 0800) shifts over an 8 week roster cycle.
3. The Overlap Roster System in based on two platoons working one of two roster lines (labelled G and H), rotating over an 8 week roster cycle. The shifts are all Monday to Friday, working 0700 - 1730 hours.
4. Clause 22.9 provides for "general conditions" that apply irrespective of which roster system is applicable. Clauses 22.11 - 22.12 provide limits on shift lengths. Clause 22.13 provides the ordinary hours for Executive Officers, being officers "having the rank of Chief Superintendent or Superintendent" (clause 7), and clause 22.14 deals with Change of Shift Agreements.
5. Clause 27, Notice of Transfer, and clause 28, Transfers Outside of the GSA (meaning the Greater Sydney Area as defined in clause 7), deal with permanent transfers. Clause 28, Transfers Outside of the GSA, prescribes the transfer arrangements which apply to all Operational Firefighter vacancies which arise outside of the GSA. Clause 28.1, Transfer Register Applications, contemplates applications for placement on a Transfer Register (described in clause 28.2) being made by way of a report to a relevant officer. All Station Officers are "eligible to apply for placement on any one or more of the Regional Transfer Registers listed at subclause 28.2.2", including the Blue Mountains Regional Transfer Register (clause 28.1.3).
6. Upon the occurrence of a vacancy, clause 28.3.4 deals with the order with which vacancies will be offered to those on a Transfer Register, relevantly:

"28.3.4.1 Firstly, by reference to the relevant Residential transfer Register, with the first offer to be made to the highest placed employee on that Register, if declined to the next highest placed employee on that Register and so on until such time as the vacancy is filled.

28.3.4.2 In the event that there are no employees on the resident transfer list or all the employees on the Residential transfer list decline the offer of a transfer , the vacancy shall then be to all employees on the relevant General transfer Register with the first offer to be made to the highest placed employee on that Register and if declined to the next highest placed employee on that Register and so on until such time as the vacancy is filled.

28.3.4.3 In the event that no employee exists on the relevant General Transfer Register and/or all employees on that General Transfer Register decline the offer of transfer, the vacancy shall then be advertised for and open to all eligible employees."

1. It is in this context the parties have included the concept of a "Relieving Employee", defined in clause 7 Definitions:

"Relieving Employee' means an employee serving at a station while not being permanently attached to any one station."

1. Clause 25, Relieving Provisions, is a lengthy provision. It relevantly provides:

"25.1 The provisions of this clause shall only apply to:

25.1.1 Relieving Employees, as defined in Clause 7, when such employees work a rostered shift at either the employee's base station/location or performs a relief duty at another station/location; and

25.1.2 Other employees when such employees perform an "Outduty", as defined in Clause 7.

25.2 Relieving Employees shall be assigned to a base station/location which, as far as is practicable having regard to the Department's operational requirements, is in the employee's stated preferred Zone, or in the Zone closest to the employee's residence.

25.3 Relieving Employees shall report for duty at their base station/location unless otherwise directed.

25.4 Subject to the exceptions in subclause 25.4.1, employees cannot be directed to perform relief duty outside the Fire District to which they are attached.

25.4.1 Exceptions

25.4.1.1 Relieving Employees (pursuant to subclause 25.1.1);

25.4.1.2 Employees (pursuant to subclause 25.1.2) who are placed upon a transfer register pursuant to clause 28, Transfers Outside of the GSA, and are claiming residential priority may be directed to relieve in an area to which that transfer register applies.

25.5 Notwithstanding the provisions of subclause 25.4, any employee may elect to perform relief duty outside the Fire District to which they are attached."

1. "Outduty" is only applicable to an employee permanently attached to a position. It is defined as (clause 7):

"Outduty" means a period of relief duty performed by a Non-Officer or Officer, not being a Relieving Employee or the occupant of a Non-Station Based position, where the Non-Officer or Officer either commences and/or ceases their rostered shift at a station/location other than the station where the Non-Officer or Officer normally reports for duty, or where the Non-Officer or Officer both commences and ceases their rostered shift at their own station but performs Stand By duties elsewhere for more than four hours, but does not include an employee on suitable duties.

1. Returning to clause 25, Relieving Provisions, clause 25.6 - 25.10 deal with a Relieving Allowance and a Kilometre allowance (and its interaction with travelling and accommodation expenses under clause 20, noting they are generally mutually exclusive: see clause 25.19 - 25.20).
2. Clause 25.11 deals with "Multiple Reliefs During a Rostered Shift" and operates where "a Relieving Employee (or other employee pursuant to subclause 25.1.2) performs relief duties during a rostered shift at more than one station/location" and entitles the employee to payment for kilometres travelled between.
3. Clause 25.12, Provision of Transport, operates where "a Relieving Employee (or other employee pursuant to subclause 25.1.2) is directed without prior notice after the commencement of a rostered shift, to perform relief duty at another station/location" and in certain circumstances entitles the employee to request the provision of transport or be provided compensation for such travel.
4. Clause 25.13 entitles "a Relieving Employee (or other employee pursuant to subclause 25.1.2)" to reimbursement for tolls "when travelling to perform a relief duty", and clauses 25.14 and 25.15 deal with accommodation entitlements when "directed to perform a relief duty on a rostered shift at a station/location" which either requires (or if not required, where approval is given in special circumstances) to reside at a place other than the employee's residence.
5. Clause 25.17 deals with Performance of Outduties. Clause 25.18 provides limits to the operation of clause 25 in certain circumstances. Clause 25.21 deals with a situation where an employee is required to use their private vehicle to perform a "Stand by". Clause 25.22 provides:

"25.22 The parties agree to review this clause of the Award during the life of the Award to consider models of relief in both metropolitan and regional operations. Such a review will be conducted in accordance with clause 9 Consultation. No changes in relation to the operation of this clause or relieving will be introduced without agreement of the employer and the Union."

1. In the proceedings, FRNSW relied on witness statements from Murray West (3 July 2025), Michael Morris (3 July 2025) and a reply statement from Mr Morris (11 July 2025), together with outlines of submissions filed on 4 July and 25 July 2025. The FBEU relied on affidavits from Timothy Anderson (7 July 2025 and an unsworn reply dated 25 July 2025) and James Forde (25 July 2025), as well as outlines of submissions filed on 4 July and 25 July 2025. The parties supplemented their written submissions with oral submissions in the hearing and additional material filed by the parties in response to further directions made addressing further matters that arose during the course of the hearing.
2. I have considered the detailed written and oral submissions advanced by the parties. It is unnecessary to set them out in full. Briefly stated, the position advanced by FRNSW is as follows:
3. Relief Station Officers have been assigned to the Zone Office for the last 6 years.

(1) Due to the large number of retained fire stations within the MW3 Zone the RSO was required to be rostered during the day to meet the minimum staffing requirements and therefore the default station roster was not appropriate.

(2) Clause 7 of the Permanent Award defines a "Relieving Employee" as one who is not "permanently attached" to any one station. The Permanent Award expressly provides that a Relieving employee will not be permanently attached to any one station. Clause 22.1 determines an applicable default roster for employees who are 'permanently attached' to a station/location. Clause 22.1 does not assign a ''default'' roster to relieving employees.

(3) Relieving employees are assigned (but not permanently attached) to a base station/location under clause 25.2. The use of the words 'station/location'' indicates that relieving operational firefighters including Station Officers may be attached/assigned to locations other than stations. The use of the words 'station/location' was deliberate. This clause simply cannot be read as requiring FRNSW to assign them to a station or a station that they work most often.

(4) The FBEU's interpretation that 'station/location' means, in the case of Station Officers, 'station' - is not an available interpretation of the words contained within the Award.

(5) Clause 32.3.1 and 32.3.1 of the Award defining "station-based positions" includes Inspectors/ Duty Commanders that work in the zone office. Therefore FBEU' s argument that because station officers are station-based positions, they cannot be assigned to the zone office, is not sustainable, as station based positions can be assigned to either a zone office or to a station.

(6) The FRNSW interpretation is in accordance with the ordinary and natural meaning of the words and makes sense in the industrial context as it provides greater flexibility as to the rosters to which relieving employees work, as they work across a number of stations and locations.

(7) It is impractical and does not make sense to 'permanently' attach RSO's to a station/location and require FRNSW to only assign them shifts in accordance with that station/location.

(8) The G/H overlap roster employed at the zone office is the most appropriate roster and is consistent with the public interest in the MW3 zone due to the large amount of retained stations (12 out of 14) as the most common shortages in the zone is Monday to Friday during working hours when retained firefighters are most unavailable. Applying the overlap roster means the RSO's work four of those shifts Monday to Friday per week three shift two of them are on and one shift weekday Monday to Friday where one of them is rostered on.

(9) Clause 25.22 inserted in the 2023 award does not require the RSO position to be filled only after consultation with the FBEU occurs as assigning a RSO to MW3 zone is a continuation of an existing roster arrangement that has been in place since 2019 rather than a change to the relieving rostering arrangements.

1. In submissions FRNSW sought the following relief:

(1) First, the Secretary seeks a recommendation that would clarify the underlying issue between the parties and sought a recommendation in the following terms:

"Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW) (IR Act), the Commission recommends that the Fire Brigade Employees' Union (FBEU) and Fire and Rescue New South Wales (FRNSW) operate on the basis, for the purposes the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2023:

Relieving Station Officers may have, as their assigned base station/location, a Zone Office, including the Metropolitan West Zone 3 (MW3) Zone Office; and

Relieving Station Officers assigned MW3 Zone Office have, as their roster, the existing Overlap Roster."

(2) Second, unless the FBEU agrees to revoke the Code Reds, the Commission should make the following orders and directions:

"Pursuant to s 137(1) of the IR Act, the Commission orders the FBEU, its officers and employees, and its members employed in FRNSW, to immediately take steps to cease organising and refrain from taking industrial action recorded in the Code Reds issued by the FBEU on 17 April and 5 June 2025."

1. On 3 July 2025 following the proclamation of s 136(1)(d) in the Act, pursuant to further directions following the hearing FRNSW sought the following orders:

(1) Pursuant to s 136(1)(a) of the IR Act, the Commission directs the FBEU to, as soon as practicable, notify its members employed in FRNSW of these orders, directions and recommendations; and that the Code Reds are withdrawn.

(2) Pursuant to s 136(1)(d) of the Industrial Relations Act 1996 (NSW), the Commission issued an order or determination addressing the questions:

(a) Can Relieving Station Officers have, as their assigned base station/location, a Zone Office, including the Metropolitan West Zone 3 (MW3) Zone Office?

(b) Can Relieving Station Officers assigned to MW3 Zone Office (or, if they must be assigned to a Fire Station, a Fire Station in the MW3 Zone) have, as their roster, the Overlap Roster?

1. Briefly stated, the position advanced by FBEU is as follows:

(1) The FBEU submits that the Code Red directive does not constitute industrial action. It contends that the directive was issued in response to uncertainty as to whether Relieving Station Officers (RSOs) in the MW3 Zone could be assigned or attached to the zone office and placed on the G and H overlap roster. The purpose of the directive, according to the FBEU, was to preserve the integrity of the transfer system while the parties engaged in consultation regarding the relieving model provisions in clause 25.22 of the Permanent Award.

(2) The FBEU further submits that the only reason FRNSW made the decision to assign RSOs to a zone office is to alter their hours of work, which it argues constitutes a change to the relieving model. It contends that FRNSW is required to comply with clause 25.22 of the Award prior to filling any vacant RSO position.

(3) The FBEU also submits that the relieving provisions in clause 25 operate to modify the hours of work provisions in clause 22 of the Award. Clause 22 provides that firefighters work the default roster at the station to which they are attached. Historically, RSOs have worked the roster at the station where they were assigned to relieve. The FBEU argues that assigning RSOs to a zone office where they do not perform operational duties, rather than to a fire station, represents a change to the relieving model.

(4) The FBEU submits that station based positions, as defined by the Permanent Award, are firefighters whose primary role is operational and emergency response or the management of operational and emergency response. This category includes firefighters, Station Officers and Inspectors/Duty Commanders. The Duty Commander reports to a Zone Commander and is responsible for the operational readiness of stations within their zone. They coordinate between stations to ensure minimum safe staffing for appliances at each station so that those appliances are available to respond. The Station Officer at the station is counted in those minimum crew requirements for the appliance. While the Duty Commander remains operational and responds to incidents when required, they do not count themselves in the minimum staffing numbers for appliances because they are not located at a station; rather, they are based at the zone office coordinating staffing requirements.

(5) The FBEU contends that an RSO cannot be considered to be assigned to a zone office where there is no functional purpose other than altering their default roster. It submits that the primary purpose of being a Station Officer is to act as the officer in charge and to manage the station itself.

(6) The FBEU further submits that the reference to "base station/location" in clause 25 does not permit an RSO to be assigned to any location, including a zone office. It argues that the relieving provisions in clause 25 are "cover-all provisions" applying to all station-based positions who are relieving, including Inspectors and Duty Commanders who are ordinarily located at a zone office. Accordingly, the reference to "location" must be construed according to its ordinary meaning, applying to relieving positions that are based at another operational location (which may include a zone office for Inspectors or Duty Commanders) rather than a station.

(7) The FBEU relies on clause 25.3, which provides that a relieving employee is to report for duty at their base station/location unless directed otherwise. It submits that, for Inspectors or above who are usually attached to a zone office, it is logical that they report for duty at that office unless they perform relief duty at another station/location. However, the FBEU contends that a Station Officer's primary role is to be in charge of a fire station and to be counted for the minimum safe crewing of appliances at that station. On that basis, the FBEU argues that a Station Officer's base station should be a station within the preferred zone or the station closest to their residence.

(8) The FBEU submits that the granting of dispute orders would not resolve the underlying dispute. It contends that, in determining whether to grant such orders, the Commission should have regard to the objects of the IR Act. The FBEU specifically refers to the following objects:

(a) to provide a framework for the conduct of industrial relations that is fair and just;

(b) to promote participation in industrial relations by employees and employers at an enterprise or workplace level;

(c) 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.

1. There is merit in the FBEU's submission that the reference to "base station/location" must be construed by reference to the particular relieving position being assigned and that there must be a connection to the nature of the work actually performed.
2. In submissions the FBEU sought the following relief.

(1) The parties are to review and consult on the current model of relief, in line with clause 25.22 of Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2023, and its successor Award.

(2) Clause 25 Relieving Provisions and clause 22 Hours of Work provisions of the Permanent Award should be interpreted to mean that a Relieving Station Officer cannot be assigned to a location only for the purpose of changing their hours of work without a connection with the work they will perform.

(3) That the provisions of the Permanent Award should be interpreted not to allow a Relieving Station Officer to be assigned to a Zone Office.

1. Put very briefly, the principles governing the exercise of discretion to make dispute orders are well established:

(1) Such orders are a measure of last resort and are not lightly made: City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia [2000] NSWIRComm 85 at [8]; BHP Steel Ltd v AWU (2003) 136 IR 240; [2003] NSWIRComm 423 at 261 [88].

(2) There is no presumption that a dispute order will be made merely because industrial action is threatened: Industrial Relations Secretary v PSA [2022] NSWIRComm 1042 at [23].

(3) The discretion must be exercised having regard to the objects of the Act, the public interest, and economic considerations. Economic impacts must be considered but are not determinative; the public interest is assessed broadly.

(4) The conduct of the parties, including whether there has been genuine negotiation and conciliation, is relevant.

(5) As stated in Sydney Water v ASU (2005) 146 IR 388 at 403-404 [37], the Commission has a broad discretion to fashion appropriate relief by reference to the merits of the dispute and the steps necessary to resolve it, with minimal disruption. This principle has been endorsed in BlueScope v AWU [2006] NSWIRComm 149; (2006) 153 IR 176 at [24]-[26] and PSA v Industrial Relations Secretary [2018] NSWCA 39; (2018) 96 NSWLR 762 at 791 [128].

1. On the question of public interest, both parties claimed support for their respective positions. FRNSW submitted that placing RSOs in the MW3 Zone on the G/H overlap roster best serves the public interest, given the large number of retained fire stations in the zone. It argued that this arrangement ensures weekday coverage across multiple shifts, thereby promoting operational efficiency and community safety. These considerations, however, must be balanced against the statutory requirement that rostering arrangements comply with the Award.
2. The current disagreement concerning the G/H overlap roster and the deployment of RSOs arises in circumstances where the review contemplated by clause 25.22 has not occurred. While the G/H overlap roster may offer operational advantages, its adoption must comply with the Award. Convenience or efficiency cannot override statutory obligations. The public interest is best served by ensuring compliance with the Award while promoting consultation to achieve arrangements that meet operational needs within the legislative framework.

1. The principles governing interpretation of awards in this jurisdiction were not disputed and are well established and were concisely summarised by Chin J in Police Association of NSW v Commissioner of Police, NSW Police Force [2025] NSWIC 2 at [13] to [18] as follows:

(1) The starting point is the ordinary meaning of the words used, read in the context of the award as a whole and in light of its industrial purpose.

(2) Provisions should be read together, considering the structure and intent of the award, including related clauses (e.g., relieving provisions).

(3) Interpretation should reflect the award's purpose: to regulate work arrangements in a fair and practical manner.

(4) Avoid unnecessary technicalities. Awards are intended to operate as practical instruments.

(5) Past practice may inform context but cannot override the text. It is relevant only where there is clear evidence of a common understanding acted upon by the parties, not inadvertence.

(6) Where ambiguity arises, adopt a construction that promotes fairness and avoids absurdity.

1. The principle issue in these proceedings is the proper interpretation, application and operation of the Permanent Award as it relates to "Relieving Employees." Specifically, whether the term "base station/location" in clause 25.5.1 permits FRNSW to assign a Relieving Employee to a "location" - understood to mean a Zone Office - where it is intended from the outset that the employee will not perform work from that office but will instead be directed to work at a fire station performing relief duty as an operational firefighter and as part of the minimum crewing at the station.
2. Having considered the evidence and submissions, I find that clause 25 operates as a provision applying across classifications of relieving employees, including firefighters and Station Officers performing station duties, and senior officers performing duties at a zone office. The terms "station" and "location" in "base station/location" are not interchangeable; they identify the actual base work location where the relieving employee performs duties when not relieving elsewhere. There is no evidence that a RSO in the MW3 Zone performs relief duties at any location other than a retained or permanent fire station.
3. I accept the substance of the FBEU's submissions that the relieving provisions of the Award do not modify an employee's hours of work. They identify the work sites at which relief duties may be performed and prescribe conditions associated with relieving, including allowances and travelling time. The provisions operate to require an employee to report for duty at their base work site, unless otherwise directed to perform relief duty. This interpretation accords with the purpose of the relieving arrangement, which is to cover absences of other employees, not to alter an employee's hours of work.
4. There is no reference within clause 25 to any variation of hours. I find that assigning a RSO to a zone office and applying the G/H overlap roster in the MW3 Zone, FRNSW is acting in a manner inconsistent with scheme of the Permanent Award. Clause 25 does not permit assignment to a location where no work is performed, solely to accommodate rostering preferences. In my view, there must be a substantive connection between the work performed and the station or location to which the employee is assigned as their "base station/location".
5. It is telling that clause 25 does not deal specifically with hours of work. That arises from the fact the very nature of the work contemplated by clause 25 is to provide relief, self-evidently due to an absence, in the context of an Award providing minimum staffing levels. In my view, clause 25 does not confer any discretion on FRNSW to determine whether a relieving employee is assigned to either a base station or base location without reference to the nature of the position or the work performed by the relieving employee. Clause 25.3 requires relieving employees to report for duty at their base station/location unless otherwise directed. FRNSW's interpretation - that this permits permanent assignment to a zone office where no substantive duties are performed, is rejected. The reference to "assigning a relieving employee to a base station/location" must be understood as the actual worksite relevant to the employee's duties, not a nominal or administrative designation. In the case of a RSO in the MW3 Zone, this would be a station consistent with clause 25.2, which provides that, as far as practicable and having regard to operational requirements, the base should be in the employee's stated preferred zone or in a zone closest to the employee's residence.
6. The terms of clauses 25.6-25.7, providing the relieving allowance, again reflect the importance of a base station or base location. Clause 25.6.1.1 provides that the relieving allowance is payable for each rostered shift worked at the employee's base station and for each shift on which the employee performs relief duty at another station or location. This clause also omits reference to "base location."
7. The ordinary meaning of the words in clause 25 are instructive. Whilst the relieving provisions apply "when such an employee works a rostered shift at either the employee's base station/location or performs relief duty at another station/location" (clause 25.1.1) (emphasis added), the Award expressly contemplates that a relieving employee, such as an RSO - who is an operational firefighter and is counted in the minimum crew requirements for the appliance at a station - is assigned to a base station/location where they work rostered shifts (clause 25.2). While it may be relieving duty when they perform "relief duty at another station/location" (clause 25.1.1), they are "to report for duty at their base station/location unless otherwise directed" (clause 25.3). This language indicates that the concept of a "base" is not merely nominal; it must be a "station/location" (and in the case of an RSO, an operational station) at which the relieving employee actually performs rostered shifts or duties. The structure of the clause does not permit FRNSW to designate a location where the relieving employee does not perform work, such as a zone office, as the base for an RSO.
8. The term station/location appears frequently throughout the Award, which reinforces the significance of its proper interpretation. It should be given its ordinary meaning as the physical place where a particular classification of employee is based and performs duties. This construction is strongly supported by clauses 22.2.1, 22.2.2.5, 23.12.3, and 25.11.1, among others, which consistently link rosters, staffing, transfers and entitlements to the station/location.
9. I note clause 25 only applies to "Relieving Employees" as defined in clause 7. Clause 7 defines a Relieving Employee as an employee serving at a station without being permanently attached to any one station and does not refer to a station/location. This definition is perhaps infelicitous drafting but also serves to highlight that the Award contains minimum staffing levels for operational firefighting staff involved in emergency response for health and safety reasons.
10. Clause 25.12 operates by reference to being 'directed' without notice to 'perform relief duty at another station/location_'_. The concept of "another station/location", reflects the distinction between base station/location and 'another station/location' in clause 25.1.1. It again reinforces the requirement that there be a base station/location at which work is ordinarily performed, unless otherwise directed.
11. This interpretation is underpinned by:

(1) the text, structure, and evident purpose of clause 25, which includes providing certainty for employees undertaking relieving duties by prescribing a defined base for rostering, travel and associated entitlements; and

(2) the nature of the position. The mere designation of a Station Officer as a relieving employee does not alter the substantive character of the Station Officer role, which I accept is operational and station based. The fact FRNSW had adopted a practice of permitting an RSO in the MW3 Zone to elect to adopt the roster of that station for the duration of the rostered shift, reflects the inherent inconsistency between the hours of the position into which the employee is relieving and the notional base location to which they are administratively attached.

1. Although FRNSW's submissions initially appear persuasive, closer examination reveals a fundamental flaw. Acceptance of FRNSW's interpretation would permit a relieving employee to be assigned to any station or location irrespective of rank, duties, or classification, producing an illogical outcome. For example, a relieving Duty Commander could be nominally attached to a station and placed on a firefighter's roster while performing duties exclusively at a zone office. This disconnect between the position, the work performed, and the location of that work is, in my view, unlikely to reflect the parties' intention.
2. I now consider the position of Mr Forde. FRNSW contends that he declined the role, thereby permitting it under the Award to offer the position to the next-ranked candidate. I do not accept that contention. Mr Forde's evidence, which was undisputed, is that he advised FRNSW he could not make a decision about whether to accept the position while the conditions of employment remained unclear. I find Mr Forde's evidence to be clear, consistent, and logical. His evidence is corroborated by Mr Anderson, who confirmed that Mr Forde and other union members informed FRNSW they could not accept or decline the vacant position until they had certainty about the location of the position and the hours of work.
3. In these circumstances, I consider it unfair that Mr Forde and others were removed from the residential transfer register. The evidence establishes that Mr Forde did not decline the position within the meaning of clause 28.3.4.1 but was unable to make an informed decision due to uncertainty regarding the applicable employment conditions. Consistent with the principles of fairness and the intent of the Award, I encourage the parties to confer with a view to placing Mr Forde in the position or otherwise reaching an agreed resolution.
4. In light of my preceding consideration and findings, for the purpose of exercising my functions in connection with the resolution of this dispute, I determine that the proper interpretation, application and operation of the Permanent Award is that RSOs should be assigned to a base station whereby they work a rostered shift when not performing a relief duty at another station.
5. After careful consideration of the evidence and submissions, I decline to make any orders under s 136(1)(d). In all the circumstances, particularly given my recommendation that the parties confer with a view to addressing the deficiencies in the current provision, such orders would be inappropriate.
6. I decline to make the dispute orders sought by FRNSW against the FBEU at this stage. The matter will be listed for directions, at which time the FBEU will be required to confirm whether it has complied with the Commission's recommendation to lift the Code Red directive.
7. In declining to make dispute orders, I have considered the following:

(1) Relief under s 136(1) is discretionary, and I do not propose to exercise that discretion in this case for the reasons contained within this decision.

(2) I accept the evidence and submissions of the FBEU that its actions in issuing the Code Red directive were:

(a) based on the fact that the practice adopted by FRNSW - albeit for a period of six years - of assigning or attaching Relieving Station Officers in the MW3 Zone to the Zone Office in order to work the overlap roster is inconsistent with the provisions of the Permanent Award;

(b) intended to ensure that the rostering arrangement for RSOs in the MW3 Zone complied with the Award; and

(c) motivated by concerns that continuing to fill the RSO position by moving down the transfer list and removing Station Officers who declined the position would cause serious unfairness to those awaiting transfer to the Blue Mountains, specifically Mr Forde.

1. On one view, the conduct of the FBEU in instructing its members not to accept or request a relieving position assigned to a Zone Office within MW3 may not amount to industrial action, given my finding that the practice of assigning such positions is inconsistent with the Award. However, as I have declined to make dispute orders in this matter, it is unnecessary for me to make a definitive finding on that issue.
2. The decision to decline to make dispute orders is based on the particular facts and evidence before the Commission in this case and should not be construed as condoning the conduct of the FBEU. The appropriate course in these circumstances was to invoke the dispute resolution procedure under the Award, including notifying the Commission of an urgent dispute, rather than issuing the Code Red directive. I respectfully adopt the observations of Chin J in Health Secretary v NSW Nurses and Midwives' Association [2024] NSWIRComm 3 at [18], upheld on appeal in Health Services Union v Health Secretary (NSW Ambulance) [2025] NSWIRComm 1014:

"The Act encourages employers and unions to use the expertise of the Commission to resolve differences by conciliation and arbitration. Parliament intended industrial disputes to be resolved by negotiation between the parties, or conciliation with the Commission's assistance, and, if necessary, arbitration."

1. For completeness, I am not persuaded that the FBEU's submission - that the practice adopted by FRNSW, namely assigning a Relieving Station Officer to a Zone Office under the overlap roster - constitutes a new model of relief that required agreement under clause 25.22, which was inserted in 2023, four years after the practice commenced. That contention cannot be sustained on the evidence. Given my finding that the practice is inconsistent with the Award, it is unnecessary to determine this additional issue.
2. Before turning to the recommendations, I consider it necessary to observe that it is regrettable that the underlying issue at the heart of this dispute has gone unresolved for more than four years. This case serves as a reminder that parties should act diligently to advance disputes and avoid unnecessary delay.

Recommendations under s 136(1)(a) of the IR Act

1. These recommendations are made having regard to FRNSW's advice, communicated by email on 22 August 2025, that it would abide by any recommendations of the Commission.
2. Having regard to my findings, I make the following recommendations:

(1) FRNSW is to amend its rostering practices to reflect the proper interpretation and application of the Award for Relieving Station Officers (RSOs) and cease assigning RSOs to Zone Offices in the MW3 Zone.

(2) FRNSW is to discontinue applying the overlap roster used at Zone Offices to RSOs in the MW3 Zone.

(3) FRNSW is to cease assigning RSOs in the MW3 Zone to the Zone Office as their base station. Until a new relief model is implemented, RSOs in the MW3 Zone are to be assigned to a base station in accordance with clause 25.2 of the Award. For clarity, the Katoomba Fire Station is located on the same parcel of land as the MW3 Zone Office.

(4) The parties are to commence formal consultation under clause 25.22 to review clause 25 of the Permanent Award (and any successor award) and develop a new relief model, initially focusing on regional operations and the MW3 Zone. The Commission will assist with facilitating this process.

(5) The parties are to urgently confer with a view to placing Mr Forde in the vacant RSO position in the MW3 Zone or, alternatively, restoring him to the top of the residential transfer register.

(6) The FBEU is to revoke the Code Red directive issued on 17 April 2025 and to notify its members that the Code Red directive has been revoked as soon as practicable.

(1) The matter is listed for directions at 2pm on 25 November 2025.

(2) The parties are to confirm at that listing whether they will accept the recommendations of the Commission.

(3) The parties are to confer and provide the Commission with a proposed timetable for consultation. If agreement cannot be reached, the Commission will determine the timetable.

19 November 2025 - Amended representative for the Notifier to D. Zayit

24 November 2025 - Amended and simplified case title

03 December 2025 - Amended cover sheet to remove reference to "Notifier" and "Respondent" and replace with party names.

"The Department's" changed to "FRNSW's" in paragraph [5].

Added "The" before "Permanent" in the second sentence of paragraph [10]

Italics removed in paragraphs [12], [15], [94], [95], [97].

"G and H roster" changed to "G/H overlap roster" in paragraphs [35], [61], [64], [92], [99], [105].

"Relieving Station Officers" removed from final line of paragraph [110].

"Relieving Station Officers" changed to "RSOs" in paragraph [116].

Space inserted between "That" and "arises" in paragraph [106].

"Permanent" inserted before "Award" in paragraph [95] sub-paragraph (3).

Amended "residential priority transfer list" to "residential transfer register" in the second and third sentences of paragraph [32].

Inserted a space between "day" and "work" in paragraph [15], sub-paragraph (12), inserted "initially" before "through" in the first sentence and changed "list" to "register" in the second sentence in sub-paragraph (10).

[1] Paragraph 13 Statement of Murray West

[2] Paragraphs 7 to 14 Affidavit of Timothy James Anderson 25 July 2025

[3] Paragraph 13 Anderson Affidavit 25 July 2025

[4] Paragraph 9- 10 of the Anderson Affidavit dated 25 July 2025.

[5] Fire Brigade Employees' Union v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1063 at 3

[7] Paragraph 15 Witness Statement of Murray West dated 3 July 2025

[8] Paragraph 37 Anderson Affidavit 7 July 2025.

[9] Paragraph 7 Morris Statement in reply 7 July 2025

[10] Paragraph 39 to 40 Anderson Affidavit 7 July 2025.

[11] Paragraph 9 (d) of Morris Statement dated 3 July 2025.

[12] Paragraph 15 of Anderson Affidavit 08 July 2025

[13] Annexure 1 to Morris Statement 3 July 2025

[15] Regulation 4 of the Fire Brigades Regulation 2014 (NSW) provides as follows: 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.

[16] Annexure TA 6 Affidavit of Anderson 25 July T page 24 lines 20 to 50