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

DECISION OF THE COMMISSION 1On 21 June 2012, Fire & Rescue NSW (FRNSW) on behalf of the Department of Premier and Cabinet notified pursuant to s 130 of the Industrial Relations Act 1996 ("IR Act") the existence of an alleged urgent industrial dispute involving the Fire Brigade Employees' Union (FBEU) and its members employed by the notifier. 2The notification arose out of the issuing of a "Code Red" notice by the FBEU to its members late on 20 June 2012. The notice advised members of a bill that had been introduced into the Parliament that exempted police, miners, Rural Fire Service volunteers and other emergency volunteers from what was described as "workers comp cuts", but which did not exempt employees of the notifier. 3The notice called on the government to extend the exemption to all firefighters "or face an immediate, concerted industrial campaign." The notice advised there would be three meetings of firefighters held at 10.00am the following day at locations in Surry Hills, Newcastle and Wollongong. The FBEU's motion calling for industrial action was in the following terms: That this meeting resolves to adjourn and to direct all members (ie, with no exemptions), within the Newcastle, Central Coast, Sydney and Wollongong areas (ie, within the geographical area of the FRNSW Metropolitan Operations Directorate) who are of or below the rank of Chief Superintendent to immediately stop work and to proceed to the designated locations, to be specified by the State Secretary in the notice to be issued immediately following the adjournment of this meeting, by 1300 hours, where this meeting will then reconvene in order to receive a report on the workers compensation dispute and to determine further action(s) in support of our demand that the Government extend the exemption already given to police, coal miners, RFS and other emergency volunteers to all FRNSW firefighters. The "Code Red" was signed by Mr Jim Casey, State Secretary of the FBEU. 4Shortly after the dispute notification was filed with the Industrial Registrar a notice of motion was filed by the notifier seeking dispute orders under s 137(1)(a) and directions under s 136(1)(a) of the IR Act. The dispute notification and the notice of motion were allocated to Haylen J. 5In the course of proceedings before his Honour a question arose as to the proper construction and application of s 137(1) of the IR Act, namely, whether there was jurisdiction to make the dispute orders sought. The question was whether strike action taken as a political protest against legislation that did not otherwise address any order or award that may be made by the Commission is "an industrial dispute in arbitration proceedings" as required by s 137(1). 6On the application of the notifier the matter was immediately referred to the President under s 193 of the IR Act for consideration by the President as to whether a Full Bench should be constituted to consider the question. The President determined to constitute the Full Bench. 7By this time, the FBEU and its members had commenced strike action at 1.00pm. The strike was to continue until 6.00pm on 21 June 2012. A significant concern on the part of the notifier was that, unlike previous occasions when industrial action had taken place, the FBEU, on this occasion, did not provide minimum staffing in fire stations to deal with emergencies. 8In the result, and given the urgency of the situation, the Full Bench issued a certificate of attempted conciliation under s 135 of the IR Act and proceeded to make an interim award pursuant to s 16(4) of the IR Act, requiring the FBEU and employees covered by the interim award to ensure minimum staffing levels were maintained. The Full Bench indicated it would deal with the question referred to it after receiving written submissions by the parties, to be supplemented by oral submissions at a later time. A timetable was set for the filing of submissions. The Full Bench was to hear the parties' oral submissions on 13 August 2012. 9By 13 August 2012, there was no pressing need to make dispute orders. The Full Bench inquired as to whether there was any further need to consider the question of whether the Commission had the power to make dispute orders in the circumstances. Absent the need for dispute orders, the notifier, nevertheless, pressed for the Full Bench to determine a question concerning the interpretation, application or operation of the Act pursuant to s 175 of the IR Act. The Full Bench declined and directed the notifier to consider what course it wished to pursue, including whether an application under s 154 of the IR Act might be an option. 10Subsequently, the notifier made application (in Matter No IRC 907 of 2012) under s 154 of the IR Act seeking the following declaratory orders: (i) Where employees of the Applicant are engaged in or are threatening to engage in industrial action, the Applicant has the right to seek Dispute Orders under s 136 and 137 of the Act, regardless of the purpose or aim of the industrial action. (ii) If the conditions of s 135 have been met, the Industrial Relations Commission of NSW may make dispute orders under s 136 and 137 where employees of the Applicant are engaged in or are threatening to engage in industrial action, regardless of the purpose or aim of the industrial action. 11The application was listed for directions on 12 February 2013 before the Full Bench of the Industrial Court (Boland J, President, Walton J, Vice-President and Haylen J), the Commission not having power to deal with applications under s 154 of the IR Act. The Full Bench indicated that before hearing the application it required information regarding the factual background to the dispute to be filed and that the parties should file material and make submissions regarding the relevance, if any, of International Labour Organisation Conventions regarding the right to strike. 12In the meantime, it became necessary to reconstitute the Full Bench, with Staff J replacing Haylen J. The hearing of the application was fixed for 28 June 2013. Also listed on that day before a Full Bench of the Commission for directions were the present proceedings, Matter No IRC 698 of 2012, which is the matter relating to the original dispute notified by FRNSW on 21 June 2012. The Full Bench in 698/12 was constituted by the same members as those constituting the Full Bench of the Court in 907/12. 13Written submissions in 907/12 were filed by the parties and by the Minister for Industrial Relations ("Minister") intervening. The Full Bench received the submissions of the FBEU on the morning of the hearing. The submissions indicated that the Union objected to the Full Bench being reconstituted because the FBEU had not consented to the reconstitution. This was notwithstanding that on 14 June 2013 the President's Associate asked the counsel for both parties whether they consented to the Bench being reconstituted. Counsel for the FBEU did not respond to that request until indicating his client's position in the written submissions. Counsel for the FBEU also questioned whether the Minister had an automatic right to intervene in Court proceedings under s 167(1) of the IR Act and because of the late intervention of the Minister foreshadowed an adjournment application if the Minister was permitted to intervene. 14Having had notice of the FBEU's foreshadowed position in 907/12, the Full Bench in 698/12 sat to deal with directions prior to sitting as the Court in 907/12. In light of the FBEU's position, the Full Bench in the present proceedings: (a) directed that the proceedings in 698/12 be converted into a hearing; (b) indicated that it intended to proceed on the basis that the Commission had power, indeed, a duty to determine whether it had jurisdiction to hear and determine a matter; (c) stated that the matter in these proceedings was whether the Commission had jurisdiction to made dispute orders under s 136 and s 137 of the IR Act in the circumstances addressed by the parties in their submissions in the 907/12 proceedings. That obviously excluded consideration of any issue associated with declaratory relief; (d) stated that the question of whether the Commission was in effect being asked to give an advisory opinion was a matter the Commission would deal with in its consideration; (e) stated that the FBEU would be given an opportunity in further written submissions to respond to any new issue that arose from the late intervention of the Minister if the need to do so arose; (f) acknowledged the intervention of the Minister and Unions NSW pursuant to s 167 of the IR Act; and (g) inquired as to whether the notifier would seek leave to discontinue the proceedings in 907/12 having regard to the Commission's decision to deal with the jurisdictional issue raised in those proceedings as part of the determination in 698/12. The Full Bench proceeded accordingly.

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.

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