Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales

Evidence 15The evidence for the notifier consisted of two volumes constituting a tender bundle. The bundle included: (a) an affidavit of Deputy Commissioner Jim Smith with eight annexures that addressed the history of the matter including the events of 20 June and 21 June 2012 that gave rise to the dispute notification by FRNSW; (b) written submissions filed by the parties in June and July 2012 and 2013, various authorities and extrinsic materials; 16For the FBEU, counsel relied on an affidavit of Mr Chris Read affirmed on 5 March 2013. Mr Read is a senior industrial officer with the FBEU.

Case for the notifier 17The notifier conveniently summarised the main strands of its case: (a) The taking of industrial action is an industrial matter as defined in the Act; (b) A dispute about the taking of industrial action is an industrial dispute; (c) The Commission has power to deal with such an industrial dispute by way of conciliation and arbitration; (d) The power to deal with such a dispute by arbitration is not dependent upon the existence of a second/further/different industrial matter; (e) In arbitration proceedings the Commission can make dispute orders about the taking of industrial action if all of the pre-requisites are met; and (f) The Commission retains discretion not to make dispute orders.

Case for the FBEU 18The main elements of the FBEU's case, which we summarise from the submissions filed on 5 July 2012 and those filed on 28 June 2013, were that: (a) the orders sought relate to a political protest. The political protest was made against the changes to the legislative regime for workers compensation. There was no claim upon the employer. (b) The question to be determined involves statutory construction. The preamble to s 137 enables the Commission to make the certain kinds of dispute orders "when dealing with an industrial dispute in arbitration proceedings". There is no power to make such orders in the circumstances. This is because the jurisdictional prerequisites as to the existence of an 'industrial dispute' and 'arbitration proceedings' are not present. (c) the relevant provisions of the IR Act require the Commission to be dealing with an industrial dispute in arbitration proceedings before it can make dispute orders. That process must necessarily have passed the conciliation phase. The process is one where disputes are notified and conciliated and then arbitrated. Orders may be made preventing the taking of industrial action in relation to those proceedings. (d) As to the notifier's submission that there was a dispute about the taking of industrial action the FBEU's position was that: (i) the industrial dispute must be identified; such identification must take place in order to determine whether the 'dispute' is about an industrial matter. That process may result in the Commission defining the dispute in a different way to that proposed by the parties (see Bluescope Steel v Australian Workers Union (2006) 153 IR 176 at [26]); (ii) the process of identifying the dispute may involve the use of judgment. It is necessary to see beyond the absence for work to see the reasons for and the nature of the dispute (see The AGE v CEPU (2004) 133 IR 197 at [44]); (iii) while the subject matter of an industrial dispute may be somewhat ambulatory (see Bluescope Steel at [30]); the need to identify the industrial dispute is a jurisdictional requisite that cannot be ignored; (iv) the industrial dispute must be 'about' an industrial matter; (v) there was no industrial dispute identified here. The dispute is one entirely outside the area of disputation and bargaining. It is not an 'industrial' dispute.

Interveners 19The Minister submitted that important questions arose as to the jurisdiction and powers of the Commission to resolve industrial disputes (especially in emergency situations where the provision of essential services are threatened). 20The Minister submitted that any ambiguity or uncertainty relating to the Commission's functions in dealing with industrial disputes be removed at the earliest opportunity. The Minister also expressed concern that such issues not be left in abeyance (with the resultant risk of similar jurisdictional uncertainty frustrating the Commission's ability to deal with a future industrial dispute both expeditiously and effectively). 21The Minister accepted that the controversy in June 2012 between the FBEU and the Government over the application of workers compensation amendments to firefighters was not "an industrial matter" as that term is defined in s 6 of the IR Act. However, the Minister submitted FRNSW's opposition to the FBEU's direction to its members to strike on 21 June 2012 constituted an industrial dispute under the IR Act: The threatened strike was a matter or thing relating to work to be done; as well as being related to the duties and obligations of employees and affected the rights of Fire & Rescue NSW as the employer. Each of these characteristics brought the strike fairly and squarely within the definition of an "industrial matter" in the Act. 22The Minister further submitted it was not the political demands made by the FBEU to the Government that was the subject of interest, concern or jurisdiction arising from the dispute notification, but rather the consequences of strike action being taken by firefighters in agitation of that political demand. 23In addressing the Commission's powers to conciliate and arbitrate in the context of an industrial dispute, the Minister submitted: (a) there is an express, mandatory directive to the Commission in s 133 of the IR Act that it must attempt to resolve any industrial dispute notified to it initially by conciliation before arbitration. It is only in circumstances where the Commission is unable to resolve the dispute by conciliation that the Commission becomes empowered to "deal with" an industrial dispute by arbitration: s 135(1); (b) the public had a very real interest in having the essential services provided by firefighters available should an emergency have arisen which affected them during the period of the strike; (c) it is relevant to note that the language used in s 135(1) of the IR Act empowers the Commission to "deal with" an industrial dispute by arbitration after conciliation has been unsuccessful. In that context the phrase means the Commission is "to take action with respect to" an industrial dispute by arbitration if it (i.e., the industrial dispute) is not resolved by conciliation. In turn, s 136 expressly sets out the specific action or orders the Commission may take in the arbitration of an industrial dispute. (d) section 136(1) expressly states that the Commission may, in arbitration proceedings, do any one or more of what then follows as an extensive list of actions the Commission can take (which includes the making of recommendations, directions, awards and various orders). The Commission has considerable discretion in dealing with the dispute before it to take any one or more of the actions listed as the Commission determines as appropriate in the circumstances; (e) thus, the application by Fire & Rescue NSW seeking dispute orders in the proceedings before Haylen J on 21 June 2012 was, assuming the procedural prerequisites set out in s 135 had been complied with, within jurisdiction and his Honour would have been empowered to make such orders were he so minded. It is that provision that provides the jurisdictional foundation to make dispute orders in dealing with industrial disputes; and (f) it is in this statutory context that s 137 is to be properly considered. There ought be no ambiguity or uncertainty as to what constitutes "arbitration proceedings", nor as to how the Commission may "deal with" an industrial dispute in such arbitration proceedings. Section 137 does no more than particularise the kinds of dispute orders that the Commission is empowered to make when it is dealing with an industrial dispute by arbitration. 24Mr M Morey for Unions NSW supported the submissions of Mr I Latham, counsel for the FBEU.

Consideration 25The provision of the IR Act at the heart of the issue before the Full Bench is s 137, which provides: 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. 26The FBEU contended that the phrase "when dealing with an industrial dispute in arbitration proceedings..." in s 137(1) meant that in order for the Commission to exercise power under that provision the following conditions had to be satisfied: (a) there had to be in existence an industrial dispute, that is, a dispute (including a question or difficulty) about an industrial matter, as defined in s 6 of the IR Act; (b) a certificate of attempted conciliation had been issued under s 135(2) of the IR Act thereby allowing arbitration of the industrial matter to proceed. 27The FBEU contended that what was missing in the notification by FRNSW was a dispute about an industrial matter. That is to say, there was no matter or thing affecting or relating to work done or to be done by firefighters or the privileges, rights, duties or obligations of the notifier or firefighters that was the subject of dispute and required to be dealt with in arbitration proceedings: see definition of "industrial matter" in s 6(1) of the IR Act. 28In other words, there was nothing to be arbitrated because action by firefighters as a form of political protest was not a matter or thing relating to work done or to be done or a privilege, right, duty or obligation of the notifier or the firefighters that was the subject of a dispute about which an order or award could be made. Accordingly, as the Commission was not "dealing with an industrial dispute in arbitration proceedings..." it had no power to make a dispute order as provided for in s 137(1)(a)-(d) of the IR Act. 29It must follow from the FBEU's submissions that, as the Commission may only deal with an "industrial dispute" by conciliation and arbitration under Ch 3 of the IR Act, the Commission has no power under Ch 3 to deal with a strike, ban or limitation on the performance of work where the strike, ban or limitation is a political protest over, for instance, a government's intention to legislate to alter wages or working conditions, including workers compensation benefits. We do not agree. 30The issue about whether industrial action, which is the manifestation of a dispute concerning a political as opposed to an industrial matter, falls within the Commission's jurisdiction has been addressed previously. In Health Administration Corporation v New South Wales Nurses Association (No 2) (1993) 51 IR 1 ("HAC v Nurses") the Full Court of the Industrial Court of New South Wales dealt with an appeal from a decision of Maidment J in Health Administration Corporation v New South Wales Nurses Association (1992) 45 IR 274. The circumstances concerned the withdrawal of labour and the ban of certain work by staff employed at the Hastings District Hospital, Port Macquarie in furtherance of objections to the privatisation of that hospital in particular and New South Wales public hospitals in general by the Government of New South Wales. 31Maidment J found that he lacked jurisdiction to deal with those matters arising in compulsory conference because s 204 of the Industrial Relations Act 1991 ("the 1991 Act") was inapplicable. Section 204(2) provided: (2) This subsection applies if an industrial organisation, or an employer, becomes aware that, in connection with a question, dispute or difficulty concerning an industrial matter: (a) there is threatened, probable or contemplated industrial action; or (b) industrial action has commenced. 32As the Full Court observed at 2, the question that arose before his Honour was whether the industrial action concerned an industrial matter. "Industrial matter" was relevantly defined in s 4 of the 1991 Act in the following terms: "industrial matters" means matters or things affecting or relating to work done or to be done, or the privileges, rights or duties of employers or employees in any industry, and not involving questions which are or may be the subject of proceedings for an indictable offence and, without limiting the scope of those matters or things, includes all or any matters relating to: (a) ... 33The Full Court noted at 2-3 that: Maidment J found that there was no dispute between the union parties and the employer as to the rights of employers or as to the duties of employees. His Honour said (at 277): ... there is no dispute that the employer is entitled to the benefit of its employees performing the full range of duties lawfully required of them and that the employees have a duty to perform those duties. The duties which the nurses have refused to perform and intend not performing as required, are, as I understand it, accepted by them as being duties which may lawfully be required of them. That then leaves the question as to whether the refusal of the nurses to perform that lawfully required of them is a matter or thing affecting or relating to work done or to be done within the meaning of the definition of industrial matters. His Honour referred to the judgment of the Full Court of the Industrial Court in Woolstar Pty Limited v. The Federated Storemen and Packers Union of Australia, NSW Branch ("Woolstar") ((1992) 45 IR 39) of 16 October 1992 which, when referring to Chapter 3 of the Act and in particular ss.194 and 210, said (at 50): Industrial action, under both these sections, must relate to an industrial matter which, of course, by the s.4 definition includes reinstatement. His Honour went on to say (at 277): Section 210 is prefaced by: (1) If industrial action concerning a question, dispute or difficulty to which this Part applies is taking place.... Thus, it would seem, the Industrial Court is of the view that industrial action does not of itself constitute an industrial matter. His Honour proceeded to rely upon a distinction he found to be demonstrated in the Act between industrial matters and industrial action and concluded that the term "industrial matters" does not embrace "industrial action", ordinarily, if at all. 34The Full Court concluded that Maidment J was in error "in concluding that the Commission lacked jurisdiction to deal with the industrial consequences or ramifications of the course adopted by the unions and their members in these matters." The Full Court stated at 5: We are unable to conclude that the definition of "industrial matters" is in terms insufficiently wide to embrace the conduct complained of here. In particular, we are of the opinion that the refusal of the employees to comply with their duty to work in accordance with their contract of employment was a matter or thing relating to work to be done and also to the duties of employees. It was also capable of being a matter or thing concerning the rights of employers within the meaning of the definition. 35It will immediately be apparent that the preamble in s 4 of the 1991 Act regarding the definition of "Industrial matter" is for relevant purposes, very similar to the preamble in s 6 of the IR Act, which states: "industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry." 36We consider the authority of HAC v Nurses is a complete answer to the FBEU's contention that there is no industrial dispute about an industrial matter. The withdrawal by firefighters of their labour from 1.00pm to 6.00pm on 21 June 2012, where they had a duty or obligation to work in accordance with the relevant statute governing their employment and their contract of employment, was a matter or thing relating to work to be done and also to the duties of the employees. As the Full Court held in HAC v Nurses it was also capable of being a matter or thing concerning the rights of employers within the meaning of the definition of industrial matter. 37The second limb of the FBEU's case was that the Commission was only empowered to deal with industrial action by arbitration if the industrial action related to an issue that the Commission had power to resolve by an order or award. That is, as the notifier understood it, "the Commission's powers in relation to industrial action were dependent upon the existence of a second/further/different industrial matter." 38We do not accept this is a correct interpretation of s 137. We note firstly, as the notifier pointed out, that the IR Act countenances the making of, and permits the Commission to make, a dispute order as the single and final outcome of dispute proceedings under Ch 3. Section 136 provides: (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). (emphasis added) Section 137 appears in Pt 2 of Ch 3. 39Section 136 enables the Commission, in arbitration proceedings, to do any one or more of the things identified in the section. Thus, pursuant to s 136(1)(d) the Commission could, for example, make an order for a secret ballot (s 172), a stand down order (s 126) or a demarcation order under Pt 6 of Ch 5 without there being any secondary issue to be determined in the arbitration proceedings. Similarly, pursuant to s 136(1)(c), it could make a stand-alone dispute order. 40The Full Bench also agrees with the notifier that, to impose the limitation on s 137 as the FBEU seeks to do, would be inconsistent with what the Full Bench determined in BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2006] NSWIRComm 149; (2006) 153 IR 176. The issue in those appeal proceedings was whether the power to make orders under s 137 was limited to the specific dispute before the Commission. At [26]-[29] the Full Bench came to the following conclusions: [26] Pursuant to s 146(2), the Commission is obliged to take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the objects of the Act, the state of the economy of New South Wales and the likely effect of its decisions on that economy. The notion that the power to grant dispute orders under s 137(1)(a) should in some way be limited by the way the parties, at a particular time, define the dispute - for example, by way of the notification - reverts to concepts of private law (such as the conduct of proceedings in courts of strict pleadings) which cannot be reconciled with the broad, public objects of the Act, including the promotion of efficiency and productivity in the economy of the State, providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality and general public interest notions. It also rests upon the notion that an industrial dispute is static, and confined to issues which are readily identifiable before full consideration of the merits of the matter. Often this is not the case. Many industrial disputes have the potential to conflagrate and the Commission's broad discretionary powers - including the power to make orders under section 137(1)(a) - are vital to prevent such a conflagration. The ability, in arbitration, to order industrial action to cease - to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest - is one of the most important features of the system created by the Act. [27] It is in that context that we turn to consider the terms of s 137. We agree with the submissions of BlueScope that there is nothing in the language of the section which limits the power to make orders under s 137(1)(a) so that orders "should relate only to the industrial dispute in respect of which they were made". The preamble in s 137(1) describes the precondition necessary for the exercise of the powers granted by the section - that the Commission must be dealing with an industrial dispute in arbitration proceedings - but does not circumscribe the scope of the powers. The use of the indefinite article, rather than the definite article, indicates that there is no distinct limitation or clear definition of a particular industrial dispute in the preamble. [28] Paragraphs (a)-(d) of s 137(1) provide limitations of varying degrees concerning the scope of the orders which may be made. Although paragraphs (b), (c) and (d) all expressly require a connection to the industrial dispute in arbitration proceedings, paragraph (a) does not. This circumstance suggests that, as discussed above, Parliament intended the power conferred by s 137(1)(a) to be broader, to encompass the possibility of a general order prohibiting all industrial action for a fixed period of time. Nor can a limitation of the type contended by the AWU be found in the definition of "industrial action", which has been drafted broadly to include "a strike by employees". Again, the use of the indefinite article is noteworthy. Finally, although ss 137(3) and 138 impose further limitations on the power to make dispute orders, neither has the effect of limiting s 137(1)(a) to orders relating only to the industrial dispute in respect of which they were made. Section 137(2) does not limit the operation of s 137(1)(a), but merely confirms the long-standing jurisprudence of the Commission that it may refrain from dealing with the broader subject matter of a dispute (for example, the dismissal of an employee) until it has dealt with industrial action. [29] Similarly, there is no basis to imply a limitation of this kind. Not only would it be inappropriate to read s 137(1)(a) by imposing limitations which are not found in the express words (because it is a provision granting power to a court: see, for example, Fox v GIO Australia Ltd (2002) 120 IR 401 at [71] and Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 at [52]), it would be contrary to the objects of the Act and to the purpose of s 137 as discussed above. We agree with the submissions of BlueScope that "the undermining of ss 141 and 142" does not provide such a basis. The fact that future industrial action may be prohibited by a dispute order made under s 137(1)(a) does not necessarily preclude future industrial disputes from the conciliation phase. Sections 141 and 142 seem more directed at "industrial action" but conciliation is also designed to deal with that industrial action whether on a narrower or broader basis. 41It is clear from the decision in Bluescope that s 137 is to be construed in a manner consistent with the need to protect the public interest from the damaging effects of industrial action. The power to make orders under s 137(1) is not limited by the way parties define the dispute and that "Parliament intended the power conferred by s 137(1)(a) to be broader, to encompass the possibility of a general order prohibiting all industrial action for a fixed period of time." 42Thus, it is clearly the case that orders under s 137(1)(a) are not limited to orders relating only to the industrial dispute in respect of which they were made and can be made prohibiting "all industrial action" for a specified period regardless of whether an "industrial dispute" gave rise to the industrial action. It is, therefore, difficult to see how it could be contended that the Commission lacked power under s 137(1)(a) to make orders requiring industrial action to cease because there was no identified industrial matter to be arbitrated apart from the matter of the industrial action itself. 43One further observation should be made regarding the contentions of the FBEU. Those submissions do not grapple with the extended definition of an "industrial dispute" in the Dictionary to the IR Act. That Dictionary definition of an "industrial dispute" is in the following terms: industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following: (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken. 44Whilst the words "industrial dispute" are defined to mean a dispute about an industrial matter, paragraph (c) of the Definition, falling, as it does, after the words "includes the following" broadens the scope of the definition to include "a situation that is likely to give rise to an industrial dispute". When the definition is considered as a whole, it is clear that the "situation" referred to in paragraph (c) may not be the dispute arising under s 130 of the Act, per se, or even an industrial dispute concerning an industrial matter but, rather, a circumstance that may produce such a dispute if preventative action were not taken. So much may be derived from the distinction between a "threatened dispute" in paragraph (b) of the definition and a situation likely to give rise to an industrial dispute in paragraph (c), the latter being plainly directed to a wider purpose. By the expression "situation", the legislature distinguished, in our view, between a question, dispute or difficulty in the nature of an industrial matter and a circumstance which, whilst not fitting that description, may give rise to that eventuality. 45Given the conclusions we have otherwise reached, and the absence of fully researched submissions on this point, we will not expand our analysis. This interpretation of the Dictionary definition of "industrial dispute" raises real questions, however, as to whether, even if the FBEU (contrary to our conclusions) is correct is its contentions in this matter, it may succeed in demonstrating that the Commission lacks jurisdiction. This is because, under paragraph (c) of the definition, the FBEU would need to demonstrate that a political protest (on its contentions) was not a situation of the kind described in paragraph (c) of the definition of "industrial dispute". Long experience in dealing with industrial disputes would suggest such a conclusion to be a remote possibility. In any event, the prospect that the conditions in paragraph (c) may be found to be fulfilled at some stage of the proceedings robs the FBEU of the jurisdictional point it would wish to bring on the available evidence and present state of the proceedings. 46The IR Act provides for a clear separation between the exercise of the conciliation power and the exercise of the arbitration power; the emphasis is on resolving industrial disputes by conciliation: s 134(1). The conciliation process is not so much about making judgments about the rights and wrongs of industrial action; rather it is principally designed to focus on the issues in dispute and to bring about a quick, fair and just resolution of those issues by agreement or upon the basis of the Commission's non-binding recommendation or direction and with a minimum of legal technicality. If successful, it would follow any industrial action would cease. 47Section 135(4) provides that "When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally." The issuing of a certificate of attempted conciliation signals the end of conciliation, at which time the Commission is to deal with the dispute by arbitration: s 135(1). Arbitration is of a completely different character to conciliation. It is only in arbitration proceedings in Ch 3 that the Commission is able to make orders that will attract sanctions if such orders are not complied with. 48The purpose of the reference in s 137(1) to "arbitration proceedings" (and in s 136(1)) is to distinguish such proceedings from conciliation proceedings provided for in Pt 1 of Ch 3. The reference does not mean that as a prerequisite to making any orders under s 137(1) there must be a substantive industrial matter (as opposed to industrial action) that is the subject of arbitration proceedings. 49Counsel for the notifier addressed the question of whether there was a right to strike derived from international law. He submitted ILO Conventions do not create a right to strike that could be enforced domestically. It is unnecessary to delve into the detail of that submission, as the FBEU did not contest the notifier's submission.

Conclusion 50The industrial action engaged in by the FBEU and its members on 21 June 2012 is amenable to the Commission's jurisdiction under Ch 3 of the IR Act.

Amendments 31 July 2013 - To correct matter within decision Amended paragraphs: 12, 13 and 14 31 July 2013 - 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: 31 July 2013