Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Communities and Justice
Before the Full Bench is an Application for Leave to Appeal and Appeal (Appeal) filed by the appellant, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA). The respondent to the Appeal is the Industrial Relations Secretary on behalf of the Department of Communities and Justice (New South Wales Rural Fire Service) (RFS).
The Appeal is against a decision of Commissioner Webster handed down on 21 May 2021 in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales Rural Fire Service (Camping Allowance) [2021] NSWIRComm 1042 (Decision). The Decision was given in the context of proceedings which followed the notification of an industrial dispute to the Commission by the appellant pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (Act).
[2]
The Decision
In the interests of expediting the delivery of this decision, we will reproduce significant extracts from the Decision, rather than attempting to summarise and paraphrase the Commissioner's reasoning and findings. The extracts will speak for themselves in this regard.
The subject matter of the dispute was articulated by Commissioner Webster in the Decision in the following terms:
"1. This matter before the Commission is an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (IR Act) which was notified to the Commission on 31 October 2019 (Dispute) by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (notifier).
2. The Dispute concerns the application of certain conditions of the Crown Employees (Rural Fire Service) Award (RFS Award) and Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Conditions Award) to employees of the Rural Fire Service (RFS employees).
3. The two grounds of dispute are articulated in the Dispute Notice as follows:
(1) The RFS has been rejecting applications for camping allowance under cl 34 of the Conditions Award in circumstances where employees are camping within RFS Base Camps.
(2) RFS employees are being accommodated in RFS Base Camps while available mid-range accommodation is available. This is a breach of cl 26.3 of the Conditions Award and cl 15.5 of the RFS Award concerning travel compensation and accommodation while attending major incidents.
4. The questions for the Commission to determine arising from the grounds of the Dispute are:
(1) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, is the employee entitled to the Camping Allowance under cl 34 of the Conditions Award?
(2) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, is the employee entitled to the Camping Equipment Allowance under cl 38 of the Conditions Award?
(3) Where an incident is declared in accordance with cl 15.1 of the RFS Award and an RFS employee is required to travel and stay overnight in the course of his or her employment with the RFS, must the RFS provide the employee with middle of the range standard accommodation where such accommodation is available, pursuant to cl 15.5 of the RFS Award and cl 26.3 of the Conditions Award?"
The Commissioner then canvassed the evidence which had been placed before her by the parties, much of which was not in dispute. The Commissioner set out relevant provisions of the Act, being s 136, s 163 and s 175, and the principles of award construction, citing the decision of Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 at [115] as well as the authorities there cited by his Honour.
Commissioner Webster continued as follows:
"21. It is necessary and convenient to set out the award provisions the Commission is called upon to interpret.
22. Clause 6 of the RFS Award gives primacy to that award over the Conditions Award where inconsistency arises, and provides:
Clause 6 - Conditions of Employment:
6.1 The staff members regulated by this award shall be entitled to the conditions of employment as set out in this award and, except where specifically varied by this award, existing conditions are provided for under the Public Sector Employment and Management Act 2002, the Public Sector Employment and Management Regulation 2009, Crown Employees (Public Service Conditions of Employment) Award 2009 and the Crown Employees (Public Sector - Salaries 2008) Award or any awards replacing these awards.
6.2 Where there may be inconsistencies between this Award and the Crown Employees (Public Service Conditions of Employment) Award 2009, or any other public service award, agreement or industrial instrument that would otherwise cover staff of the Rural Fire Service, the arrangements in this Award shall prevail.
23. The primacy of the agency-specific awards, in this case the RFS Award is also consistent with the express terms of the Conditions Award, which refers to its operation as applying, 'except where another industrial instrument or arrangement applies to the employees': cl 6. The 'Statement of Intent', at cl 7, of the Conditions Award, refers to the award's aim to 'consolidate' all 'common conditions of employment of those employees' across agencies, except 'where another industrial instrument or arrangement applies to the employees' as per cl 6 above.
24. The RFS Award prescribes the conditions (including applicable allowances) which apply where an incident is declared under the State Emergency and Rescue Management Act 1989 (NSW) (SERM Act). These are the circumstances which give rise to an RFS employee being accommodated at a base camp. Pursuant to cl 15 of the RFS Award, a range of specific conditions apply to employees during major incidents including (by way of example) additional payments (cl 15.3 Payment Associated With Incidents), and expenses for any additional dependent care required (cl 15.4 Family).
25. Relevantly, cl 15.1 provides:
Clause 15 - Major Incident Conditions
15.1 The following conditions apply in circumstances where an incident is declared and/or approved by the Commissioner or State of Emergency as declared under the SERM Act until such time as the declaration of the incident is lifted.
26. An incident is declared by the Commissioner of the NSW Rural Fire Service pursuant to s 44 of the Rural Fire Act 1997 (NSW)(RF Act) which provides:
44 Commissioner's responsibility
(1) The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner -
(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or
(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or
(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or
(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.
(2) (Repealed)
(3) The Commissioner is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner's functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.
27. Most relevant to this dispute, if the Commissioner of the NSW RFS has declared an incident pursuant to s 44 of the RF Act or there has been declared a State of Emergency, the RFS Award provides:
15.2 Conditions
…
15.2.3 All travel to and from an incident will be paid as if part of the incident.
…
15.5 Provision of Meals and Accommodation whilst Working on Incident
15.5.1 The Rural Fire Service will generally provide meals, including breakfast, lunch and dinner, and provide supper for staff members working night shift.
15.5.2 If no meal is supplied, a payment of an amount per meal as set out in the Crown Conditions Award shall be made.
15.5.3 Wherever possible, staff members will be allowed to return home or the Rural Fire Service will provide suitable accommodation.
15.5.4 Where returning home or to other accommodation is not possible or practical and the staff members are required to camp, they will be paid the appropriate allowance as set out in the Conditions Award.
(Emphasis added)
28. Clause 26 of the Conditions Award provides:
26.1 Any authorised official travel and associated expenses, properly and reasonably incurred by a staff member required to perform duty at a location other than their normal headquarters shall be met by the Department.
…
26.3 Where available at a particular centre or location, the overnight accommodation to be occupied by employees who travel on official business shall be the middle of the range standard, referred to generally as three star or three diamond standard of accommodation.
…
Subject to subclause 26.14 of this clause, an employee who is required by the Department Head to work from a temporary work location shall be compensated for accommodation, meal and incidental expenses properly and reasonably incurred during the time actually spent away from the employee's residence in order to perform the work.
(Emphasis added)
29. The notifier referred to and relied upon cl 34 of the Conditions Award, which relevantly states:
34.1 Except as provided in an Award, Agreement or Determination, payment of the camping allowance applies to an employee who is:
34.1.1 In receipt of a camping equipment allowance under clause 38, Camping Equipment Allowance of this award; or
34.1.2 Provided with camping equipment by the Department; or
34.1.3 Reimbursed by the Department for the cost of hiring camping equipment.
34.2 When required to camp in connection with the performance of official duties, an employee shall be paid an allowance for the expenses incurred in camping as follows:
34.2.1 The daily rate specified in Item 4 of Table 1 of Part B Monetary Rates for all expenses; and
34.2.2 Where required to camp for more than 40 nights in any calendar year - that daily rate plus the additional rate for that year as specified in Item 4 of Table 1 - Allowances of Part B, Monetary Rates
34.3 Where the Department Head is satisfied that it was not reasonable in the circumstances for the employee to camp, an employee who is entitled to a camping allowance shall be paid a travelling allowance under clause 26, Travelling Compensation of this award, instead of the camping allowance.
30. Clause 38 of the Conditions Award is titled '38. Camping Equipment Allowance' and is in the following terms:
38. Camping Equipment Allowance
38.1 In this clause, 'camping equipment' includes instrument and travelling equipment.
38.2 An employee who provides camping equipment required for the performance of official duties shall be paid a camping equipment allowance at the rate specified in Item 7 of Table 1 - Allowances of Part B Monetary Rates for the expense of providing the equipment.
38.3 An employee who provides own bedding and sleeping bag while camping on official business, shall be paid an additional allowance at the rate specified in Item 7 of Table 1 - Allowances of Part B Monetary Rates.
(Emphasis added)
31. Item 4 of Table 1 of Part B provides for a Camping Allowance of $31.55 per night for an Established camp and $41.70 per night for a Non established camp with an additional allowance of $9.95 per night for staff who camp in excess of 40 nights per year.
32. The Camping Equipment Allowance referred to in cl 38.1 and provided for in Item 7 of Table 1 - Allowances of Part B Monetary Rates is $31.25 per night, while the Bedding and sleeping bag allowance is $5.25 per night.
33. The Conditions Award was reviewed pursuant to s 19 of the IR Act on 24 August 2016. No changes were made to clauses 34, 38, or 26 of the Conditions Award as a part of this review."
Commissioner Webster then referred to the submissions which were relied upon by the parties and continued as follows:
"37. Both parties made submissions with respect to the history of the Award and the respondent's historical decision not to pay the Camping Allowances in the context of base camp accommodation. Until 2009, the Crown Employees (Rural Fire Service Salaries and Conditions of Employment 2003) Award ('the 2003 RFS Award') contained its own camping allowance and camping equipment allowance provisions. Conditions of employment were still separately provided for pursuant to cl 63(d) of the 2003 RFS Award which simply called upon the award's own camping allowance provisions.
38. Specifically, cl 63(d) of the 2003 RFS Award provided:
63. Major Incident Conditions
…
(d) Provision of Meals and Accommodation whilst Working on Incident
(1) The Rural Fire Service will generally provide meals, including breakfast, lunch and dinner, and provide supper for staff members working night shift.
(2) If no meal is supplied, a payment of an amount per meal as set out in Item 19 of Table 1 - Allowances, of Part B, Monetary Rates, shall be made.
(3) Wherever possible, staff members will be allowed to return home or the Rural Fire Service will provide suitable accommodation.
(4) Where returning home or to other accommodation is not possible or practical and the staff members are required to camp, they will be paid the appropriate allowance as set out in this Award.
(Emphasis added)
39. The Camping and Camping Equipment Allowance provisions at cl 8 and 9 of the 2003 RFS Award were similar to the Camping and Camping Equipment Allowance provisions now found in cl 34 and 38 of the Conditions Award.
40. In 2009, the s 19 Award Review process identified the Camping and Camping Equipment Allowance provisions in the 2003 RFS Award as being duplicated in the 2009 Conditions Award. In December 2009 these allowances were not included in the Crown Employees (Rural Fire Service 2009) Award (the 2009 RFS Award) and the wording of cl 63(d) of the 2003 RFS Award was amended in the new 2009 RFS Award cl 15.5.4 simply by replacing the words 'this award' with 'Conditions Award'.
41. The notifier relied upon this history to argue that the entitlement to the Camping or Camping Equipment allowances for RFS employees was intended to be the same now as it was prior to 2009 and that a broad definition of camping should be adopted, consistent with the requirements of agencies when employees are camping as set out in the Public Service Industrial Relations Guide (PS IR Guide). I have considered [this] argument in greater detail below commencing at [79].
42. The respondent argued that the notifier has been aware of the respondent's position that the allowances were not payable for some years and they made no application for any change, including when the Conditions Award and RFS Awards were reviewed in 2016. They also point to the current negotiations for a new RFS Award where the notifier is seeking to include a 'Base Camp Allowance' payable when RFS employees are accommodated in base camps during a major incident, stating that this is indicative that the parties had a common understanding that the allowances are not payable: Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513 at 520[31]; Transport Workers' Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54, 69 [93]-[95].
43. From the evidence, it was clear that the notifier was aware and had not formally challenged the respondent's position that the Camping and Camping Equipment Allowances are not payable when RFS employees are accommodated in base camps. Indeed, the respondent's Travel Policy expressly states the camping allowance is not payable where staff members are accommodated at established base camps: see cl 3.4.2 of the RFS Travel Policy. The RFS Travel Policy is not the award and it is not determinative of the question of whether camping allowances are payable when employees are accommodated at base camp. I am also unconvinced it evidences an agreement between the parties that would estop the notifier from challenging the position.
44. There may have been one or several reasons for the notifier not formally questioning the respondent's position, ranging from inadvertence to a deliberate decision based on broader industrial interests or issues of resourcing (by way of example). This does not preclude the notifier from making its claim that the allowances apply and it be considered on its merits, even though they have made another claim for a new allowance to apply in the relevant circumstances, especially given the respondent's position that the relevant allowances are not properly claimable in these proceedings. Of course, the outcome of this matter may be a relevant matter to be considered in the context of the claimed allowance.
Suitable accommodation
45. The notifier seeks by way of relief in these proceedings, that the Commission make the following recommendation or direction:
'Where an incident is declared in accordance with clause 15.1 of the Crown Employees (Rural Fire Service) Award and an RFS employee is required to travel and stay overnight in the course of his or her employment with the RFS, the RFS must provide the employee with middle of the range standard accommodation wherever possible in accordance with clause 15.5 of the Crown Employees (Rural Fire Service) Award and clause 26.3 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 and an RFS employee may only be required to camp if the provision of such accommodation is not possible or practical.'
46. The notifier argues that the requirement to provide middle of the range standard accommodation is derived from cl 15.5 of the Crown Employees (Rural Fire Service) Award and cl 26.3 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 as set out above at [25] and [28] respectively.
47. The notifier's argument with respect to the issue of the requirement for mid-range accommodation is simply stated at [63] of the notifier's outline of submissions:
'Where an incident is declared under section 44 of the Rural Fires Act 1997 the provisions of clause 15 of the RFS Award apply to RFS employees. In such circumstances, and where the RFS employees are not allowed to return home, clause 15.5.3 of the RFS Award requires the RFS to provide its employees with suitable accommodation. Clause 26.3 of the Conditions Award requires such accommodation to be in the middle of the range standard if available. If suitable accommodation is not available then clause 15.3.4 of the RFS Award requires the employees to camp and be paid the camping allowance, being the appropriate allowance as set out in clause 34 of the Conditions Award.'
48. Further, the notifier argues that 'suitable accommodation' contained in cl 15.5.3 of the RFS Award and 'other accommodation' in cl 15.5.4 can only be understood as a reference to accommodation other than 'camping', that is, hotel or similar type accommodation, and although there are a range of factors that may be relevant to determining what accommodation is 'suitable', there is utility in the Commission resolving the dispute as to whether the RFS is required, whenever possible, to provide mid-range hotel accommodation.
49. The respondent argued that the recommendation sought is entirely ambiguous and uncertain and therefore futile. They broadly resist this aspect of the notifier's claim, arguing, in summary that cl 26 of the Conditions Award is not relevant to an assessment of the suitability of base camp accommodation. They submitted that the only obligation upon the respondent is to provide 'suitable accommodation' in accordance with cl 15.5 of the RFS Award and the Conditions Award does not inform what 'suitable accommodation' is, nor does it impose additional or different obligations upon the respondent.
50. The respondent also complains that if made, the recommendation would inappropriately impinge upon its managerial prerogative and/or ability to make appropriate decisions based on a broad range of operational matters and statutory obligations owed by them: (See [42]-[49] of the respondent's outline of submissions).
51. I am not inclined to make the recommendation sought by the notifier. There is, in my view, no basis or reason the Commission would interpret that cl 26.3 of the Conditions Award applies in the context of cl 15.5.4 of the RFS Award. The plain words of the cl 15.5.4 place an obligation upon the respondent in the context of a major incident wherever possible, either to allow their employees to return home; or otherwise provide 'suitable accommodation'. It is clear on the face of both the RFS and Conditions Award that the RFS Award is to have primacy and it is neither necessary nor appropriate to read into cl 15.4.4, the obligations contained in the Conditions Award regarding the style of accommodation that may be deemed 'suitable'.
52. Further, to the extent it is argued that cl 26.3 of the Conditions Award is not inconsistent with the cl 15.5.4 of the RFS Award, this can only be assessed based on the factual circumstances giving rise to the need to accommodate the RFS employee.
53. The word 'accommodation' must be read as it appears in cl 15.5.3, namely as, 'suitable accommodation' to be provided in the context of a 'major incident' as defined. The Online Macquarie Dictionary defines 'suitable' as, 'such as to suit; appropriate; fitting; becoming'. This definition does not give any great assistance in terms of understanding its meaning beyond the word itself. Whether accommodation is 'suitable' will inevitably involve a subjective evaluation upon which reasonable minds may differ. However, in considering what is, 'suitable accommodation', the fact that it is provided by the respondent in the context of a 'major incident' is relevant and must not be ignored.
54. The respondent's functions are set out in s 9 of the RF Act and include providing Rural Fire Services for New South Wales. These services include the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts, and the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts.
55. Clause 15 of the RFS Award applies to work conducted by employees in respect of a State of Emergency or an incident (a major incident). An incident is defined in cl 4.10 of the RFS Award to include 'an unscheduled activity such as wildfire suppression, flood or storm relief, search and rescue, search and rescue, cetacean rescue, accident and substance spill attendance, or as otherwise approved by the Commissioner, but does not include hazard reduction': see [26] above. Ms Talbert, Assistant Commissioner and State Operations Controller is involved in deciding whether to establish base camps during a major incident. She gave the following evidence relating to that process at [6]-[10]; [13] of Ex R2:
'Determining suitable accommodation when responding to incidents
6. When an incident is declared by the Commissioner under s. 44 of the Rural Fires Act 1997, an Incident Controller will be appointed by the Commissioner. I make decisions in consultation with the Incident Controller and relevant Regional Major Incident Coordinator about whether it would be appropriate to set up a base camp as part of the response to the fire. An Incident Controller requires the approval of the State Operations Controller to establish a base camp.
7. As part of that decision making process, we consider travel time from the incident, if there is an available and appropriate site, the likely duration of the fire, the number of people that need to be accommodated, what accommodation is available in the nearest town, what sort of capacity the base camp needs to be, and if there are competing priorities for base camps, what the higher priority is. Often base camps accommodate staff and volunteers from multiple government agencies. In some areas, accommodation in the nearest town can be booked out or is insufficient to accommodate all personnel responding to major bush fires, particularly if hundreds of firefighters are deployed.
8. RFS does not utilise base camps as a means of saving money on accommodation costs when responding to an incident. The ultimate consideration in determining whether to set up a base camp when responding to an incident is fatigue management control and preventing injury and deaths. The RFS Fatigue Management Operational Protocol recommends a minimum 9 hours rest period between shifts and that travel to and from an incident is no longer than 1 hour in duration.
…
9. Where fires occur in remote areas, it can often take many hours to travel to the fire. Some fires can take 6 or more hours to travel to. Base camps can be set up much closer to the fire, limiting travel time and fatigue. There are also incidents during flooding operations where established accommodations have been destroyed or unable to be stayed at, and it is too difficult to travel to the next geographical location for accommodation.
10. Additionally, RFS needs to determine how to most effectively manage fires with regard to its functions under s. 9 of the Rural Fires Act 1997. It is inconsistent with its functions of protecting persons and property to drastically reduce shift length in order to take into account hours of travel time between accommodation and an incident. Further, when undertaking complex operations, it is advantageous from a continuity perspective for personnel to be accommodated together and to facilitate briefs and debriefs before and after shifts.
….
13. Pilots and air crew do not stay at base camps due to specific requirements of the NSW and ACT Interagency Aviation Standard Operating Procedures that outline minimum accommodation arrangements required in accordance with standard aviation fatigue management and safety management systems. Similarly, people in the Incident Management Team who are not working in the fire area might not be accommodated on a base camp, depending on the location of the Incident Management Team and a number of other factors. They might instead be accommodated at the nearest town with a fire control centre."
(Emphasis added)
56. What is clear from this evidence is that there are [sic] a broad range of matters the respondent must take into account in deciding if a base camp should be established, the most important of which is 'fatigue management control and preventing injury and death': see [8] of Ex R2. The considerations are specific to the performance of the respondent's statutory functions in the context of the various circumstances that may arise in the management of a declared incident or State of Emergency. While the comfort level of employees may be an important factor in determining whether a base camp should be established, particularly when considering issues of fatigue, it can be deduced from the evidence of Ms Talbert that this may need to be considered in the context of a range of other important operational matters, such as the requirement to have local accommodation available for other purposes and the desirability to co-locate particular employees responding to the situation. It may be that in the pursuit of the respondent's objectives in such situations, it will be more suitable and indeed necessary to accommodate employees in a base camp, even though mid-range accommodation is available.
57. The notifier submitted that the effect of cl 15.5.3 read with cl 15.5.4 of the RFS Award is that it is only where returning home or the provision of other accommodation is not possible or practical that an employee maybe required to camp in accordance with cl 15.5.4. They continued that, 'suitable accommodation' and 'other accommodation' can only be understood as a reference to accommodation other than camping, that is, hotel or similar types of accommodation. I am of the view that the notifier's submission that 'suitable accommodation' can not be 'camping' is an uncomfortable backward reading of the cl 15.5.3 and inconsistent with the intended purpose of the clause and the context within which the relevant accommodation is being provided. However, it is also not obvious that 'suitable accommodation' must be read as 'other accommodation' in the context of cl 15.5.4. If that was the intention of the drafters, the same phrase 'suitable accommodation' could have been adopted but was not. Similarly, if the drafters had intended that camping could not be suitable accommodation, that could have been more clearly articulated.
58. For these reasons, I have decided that it would not be appropriate to make the recommendation sought by the notifier with respect to mid-range accommodation being made available to RFS employees during a major incident, as it may be that other accommodation, such as a base camp is 'suitable accommodation' when all of the relevant matters associated with the situation are considered. Without evaluating all the factual circumstances relevant to the determination of that question, it is not possible to know if such accommodation is or is not 'suitable' or even if it is 'possible or practical'. Such a recommendation may cut across the need of the respondent to consider a broad range of operational matters necessary to perform its functions.
59. In addition, there is a not a sufficient evidentiary basis to establish that RFS employees engaged in a major incident have been accommodated in base camps where it was 'possible and practical' for them to stay in mid-range accommodation. To the contrary, the uncontested evidence of Ms Chih was (Ex R3 at [24]-[25]):
'NSW RFS staff members travelling for work who are unable to return home are accommodated in mid-range accommodation where it is available.
Where mid-range accommodation is available and practical, NSW RFS also utilises this for staff members travelling away from home to work under major incident conditions.'
60. There was also evidence of RFS employees being able to return home and being accommodated in commercial hotels in the context of a fires [sic] in the Southern Highlands where the circumstances permitted this: Ex R1 at [14].
61. In view of this evidence, it is unclear how the making of the recommendation or direction sought will have any practical impact on the accommodation arrangements of RFS employees engaged in a major incident. I am also concerned that the recommendation sought is imprecise in its terms and would in any event leave open an avenue of disputation between the parties as to whether it is 'possible or practical' to accommodate employees in mid-range accommodation in a particular set of circumstances.
Do the camping allowances contained in the Conditions Award apply to RFS employees accommodated at a base camp?
62. The notifier claims the RFS employees are entitled to Camping and Camping Equipment Allowances contained within the Conditions Award by operation of cl 15.5.4 of the RFS Award: see [27] above. Following from this, the notifier seeks by way of remedy, that the Commission make the following recommendations and or [sic] directions:
(1) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, the RFS must pay to the employee the camping allowance under clause 34 of the Crown Employees (Public Service Conditions of employment) Reviewed Award 2009 at the non-established rate as specified in Item 4 of Table 1 - Allowances of Part B, Monetary Rates as adjusted in NSW Treasury Circular C2019-03 Meal, Travel and other allowances.
(2) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, the RFS must pay to the employee the camping equipment allowance under clause 38.2 of the Crown Employees (Public Service Conditions of employment) Reviewed Award 2009 at the rate as specified in Item 7 of Table 1 - Allowances of Part B, Monetary Rates as adjusted in NSW Treasury Circular C2019-03 Meal, Travel and other allowances.
(3) In circumstances where RecommendationIDirection 2 above applies and the RFS employee provides his or her own bedding and sleeping bag the RFS must pay to the employee the additional allowance under clause 38.3 of the Crown Employees (Public Service Conditions of employment) Reviewed Award 2009 at the rate as specified in Item 7 of Table 1 - Allowances of Part B, Monetary Rates as adjusted in NSW Treasury Circular C2019-03 Meal, Travel and other allowances.
63. The notifier submitted that the Commission is to consider whether RFS employees are engaged in 'camping' when accommodated at base camps. If the answer to this is 'yes', then the terms of the Conditions Award apply and allow RFS employees to access those entitlements claimed. After referring to the dictionary definition of camping, the notifier submitted ([28]-[31] of the notifier's outline of submissions in reply):
'The respondent's submissions to the effect that an RFS Base Camp does not involve "camping" cannot be reconciled with the ordinary meaning of the word "camp" or "camping". It is submitted by the respondent that an RFS Base Camp is "suitable accommodation" rather than camping because certain facilities or services might be available at an RFS Base Camp such a mobile kitchen, catering, air-conditioning, cool room, showers, and toilet and cleaning, waste removal and rubbish services: Respondent's Submissions, para 25-26.
Even if some such facilities are available nearby, an RFS employee required to stay in a tent is nonetheless camping. A "camping area" will commonly provide facilities such as bathrooms, showers, catering facilities, bbq, cleaning, rubbish disposal and waste services. A person staying in a tent at a camping area would, nonetheless, ordinarily be described as "camping". The availability of other facilities or services nearby is irrelevant to the assessment of whether RFS employees are "camping".
Finally, the respondent asserts that RFS employees who are accommodated at Base Camps are not required "to camp" because the employees do not set up their own tents, prepare their own meals, clean the showers or toilets, concern themselves with any wastewater or sewage issues or demobilise or clean the facilities after they have stayed at the RFS Base Camp: Respondent's Submissions, para 32. Again, those submissions seek to impose an impermissible gloss on the ordinary meaning of the phrase "required to camp". A person can be said to "camp" if he or she sleeps in a tent whether or not the individual set up his or her own tent or is required to clean the toilets or cook food.
By way of example, if a parent takes two children on [a] camping trip staying in a caravan park or camping ground where the parent sets up the tents and cooking facilities, provides and prepares the meals, and the family uses shower, toilet, kitchen and entertainment facilities which are available, on the respondent's approach the children would not be camping. That submission could not be accepted. RFS employees who are required to stay in tents at an RFS Base Camp are, on any ordinary understanding of the language of the RFS Award and the Conditions Award, "required to camp" and, accordingly, entitled to payment of the relevant camping allowance.'
64. The respondent primarily argued that it is not necessary for the Commission to resolve the meaning of the phrase 'required to camp' in cl 15.5.4 of the RFS Award and cl 34.2 of the Conditions Award because read harmoniously with cl 15.5.3 of the RFS Award, as long as 'suitable accommodation' is provided, the RFS employees are being provided with 'other accommodation' in base camps. In the alternative, the respondent submitted that RFS employees are not 'required to camp' when accommodated at base camp because:
(1) there is no requirement for the employees to set up a camp, tent or any other camping equipment or facility; and
(2) the facilities provided at a base camp include provision of meals, television, wireless internet, and the like, such that being accommodated at a base camp is significantly different to the ordinary concept of being required to camp: see [4] (b) of the respondent's outline of submissions.
65. The respondent also relied upon the contents of the Base Camp Manual as follows ([24]-[26] of the respondent's outline of submissions):
'24. As provided by the Base Camp Manual:
"Once established by the Case Camp Establishment Team (BCET), the Base Camp needs to be adequately resourced and staffed to ensure the level of customer service and hospitality is maintained…"
25. An RFS Base Camp also requires:
(a) contractors to address electrical, plumbing, cool room, freezer, laundry, repairs and maintenance, sewage and grey water pump out and dust suppression;
(b) ground support crew who are responsible for the set up and maintenance of the Base Camp and demobilization of it;
(c) a Logistics Support Officer is responsible for liaising with and coordinating catering, acquiring consumables, fuel and services; and
(d) a Health & Safety Officer who is responsible for hygiene, first aid, medical, chaplaincy, CID, communications to home and entertainment.
26. The facilities and services provided at a RFS Base Camp include, inter alia:
(a) a mobile kitchen, catering, air-conditioning, a cool room, showers, and toilets;
(b) showers and toilets are serviced and cleaned twice a day by contractors;
(c) waste water and sewerage is pumped out regularly and is removed and disposed of appropriately off site by suitably approved contractors; and
(d) rubbish removal is also supplied by contactors.
…'
66. The respondent concluded ([31]-[32] of the respondent's outline of submissions):
'31. On any proper analysis of the plain and ordinary meaning of the phrase "to camp" it cannot have been intended to include the accommodation of staff at RFS Base Camps when those "camps" include the provision of all meals in catered form, air-conditioning, television, wireless internet, and the like. In this regard, it is relevant that "established camps" as contemplated by the Conditions Award do not provide such facilities or services.
32. RFS staff who are accommodated at Base Camps are clearly not required "to camp" in the sense that they are not required to, inter alia:
(a) set up their own tents;
(b) prepare their own meals;
(c) concern themselves with any cleaning in respect of showers or toilets;
(d) concern themselves with any waste water or sewerage issues; or
(e) demobilize or clean the facilities after they have stayed at the RFS Base Camp.'
67. In finding the legal meaning of the clauses being interpreted, it is the duty of the Commission to give the words of the award a meaning that the authors of the award are taken to have intended them, through a process of ascertaining the intention of the relevant provisions.
68. In interpreting the entitlements provided for in cl 15.5.4 of the RFS Award, the starting point is a textual analysis of the words of the clause, that is, a consideration of the ordinary and grammatical meaning of those words contained in cl 15.5.4.
69. While the conditions at each base camp may differ markedly, as demonstrated by the notifier's evidence of Mr Plummer and Mr Hansen, being accommodated in base camps is not the same as staying in hotel accommodation. The sleeping conditions can be particularly challenging. Mr Hansen's evidence highlighted some of the adversities of the conditions in a base camp (at Glen Innes Base Camp in November 2019) when he stated at [15]-[28] of Exhibit A3:
'15. RFS provides a camp stretcher and a sleeping bag, not a bed with sheets and blankets that is made each day ...
16. There is no bathroom or toilet in or attached to the tent.
17. There is nowhere to hang or put your clothes and belongings other than in your bag under or near your camp stretcher no iron, hairdryer or toiletries, no tea and coffee making facilities in your "room".
18. Staying in a tent and sharing the tent with 6 to 12 other people can be difficult people want to go to sleep at different times and also get up at different times, plus the constant snoring and farting, smelly feet and some people that don't shower. This causes sleep disturbance and makes it hard to get to sleep.
19. You have to get up and go outside to go the toilet.
20. I get up at least once a night and while I was in this base camp at Glen Innes on more than one night I had to get up twice. This severely reduced the amount of sleep I got as it was very cold at night that time of year, so I had to sit up find a torch, get dressed, put on my boots and then walk 100m in the cold to go to the toilet, walk back (I almost slipped over in the mud one night), take off my boots, get undressed get back into the sleeping bag (not an easy task for a 59 year old of 100kg) and then try and get back to sleep which took a while because after that walk in the cold I was wide awake and lying on an uncomfortable camp stretcher. I estimate that I lost an hour sleep every time I had to get up during the night and as a consequence was very tired and drank more coffee the next day. Getting the torch out fumbling around opening the tent to go out and doing the reverse when back also disturbed other people in the tent. …
…
22. One of the things that made the tent accommodation in the Glen Innes Base Camp even more uncomfortable was the poor air conditioning. While attempting to make it more liveable and comfortable the system did not work. My first night I was next to the large vent (hole) blowing in hot air. It was so hot that we all had to strip off and lie on top of our sleeping bags and even then it was too hot, then in the middle of the night it adjusted and started to blow cool air so then I got cold and jumped in the sleeping bag, then it got hot again and I got out of the sleeping bag together with getting up to go to the loo I didn't get much sleep. The following night someone checked out and I moved to a better spot but it was still very hard to get to sleep in the overheated tent. We asked for it to be adjusted and it was but only slightly and it was too hot every night I was there. …
23. Similarly, there were no ensuite showers in a tent I wasn't even told beforehand that I was staying in a tent I brought luggage more suitable to a motel and no shampoo as I was expecting this to be in the room. Again one has to get up, put boots on, get at least partially dressed carry your clothes 100 metres to outdoor partially open shower tent with little privacy and shower in a portable shower (at least the water was hot), get out of the shower and get dressed in an open tent on a very cold morning! …
24. There is also a much higher risk of disease in base camps such as colds and flu and gastroenteritis. The RFS did have strict hand cleansing protocols in place for the mess tent at Glen Innes. The shared toilets were very unpleasant most of the time and you had to shop around to get a clean one. Despite the best efforts of our State Mitigation staff who were doing the best they could.
25. If you go camping you don't expect somewhere comfortable to sit and this was the case in this camp. There was nowhere comfortable to sit and relax and wind down after a shift. There were no chairs at all in the tents and in the mess tent with the large TV only hard plastic chairs, less comfortable than a folding camp chair! There were 2 or 3 TV's however you did not have access to watch what you want and they were difficult to hear. That's what happens when you camp with a large group.
26. I relation to the ordinary concept of camping I went camping at a Big 4 caravan park years ago. I took my camper trailer. It is a trailer with a tent over the top and a tent annexe. We could go out and get a meal cooked by someone else at local shop or club. We could go to the games room and play games or watch TV, we had power to the camper and could plug in our own TV and evaporative cooler. We had wifi. Many of these places have tents already put up that you can stay in. We had to walk to a shared toilet block and shower block, although some tent sites now have "ensuite" toilet and showers, next to the tent! When camping in a caravan park or National park do you concern yourself with cleaning the toilets or showers or with waste-water or sewerage issues or clean the facilities. In its ordinary sense this is camping.'
70. The Online Macquarie Dictionary relevantly defines a 'camp' as 'a group of tents, caravans, or other temporary shelters in one place'. There is ambiguity in what is meant by the phrase 'required to camp' and 'other accommodation' within the context of the RFS Award such that it is appropriate and necessary to go beyond the text of the provision to ascertain the intention of the award clause.
71. The concept of what it is to 'camp' has different meaning to different people. The phrase is sufficiently broad to encompass vastly different styles of accommodation situations with a high level of variability in terms of the facilities and support provided or accessible. Indeed, the concept of 'glamping' defined as 'camping out with luxurious surrounds, fine cuisine, and comforts such as electricity, heating, etc' may still fall within the ordinary definition of what it is to camp. Whilst is it not suggested that RFS employees are 'glamping', it serves to illustrate the point that not all camping is the same.
72. The principles of award interpretation do not require a literal meaning be attributed to words in an award if this results in an outcome that is contrary to the intention of the award itself. The question is whether in the context of the base camp as the evidence has revealed it to be, RFS employees were 'required to camp' as that phrase was intended to be understood in cl 15.5.4 of the RFS Award. This requires further analysis rather than considering just the words themselves. It is an analysis that can only relate to the particular base camps that the Commission has evidence of noting that these can differ markedly in terms of their purpose, scale and facilities: see Ex R1 at [5]-[13].
73. Clause 15 of the RFS Award is aimed at providing appropriate and fair conditions of employment for RFS employees engaged in work during major incidents. Clause 15 is titled 'Provision of Meals and Accommodation whilst Working on Incident'. Clauses 15.5.1 and 15.5.2 provide that meals will generally be provided by the RFS during such an incident but if they are not then the relevant meal allowances will be payable in accordance with the Conditions Award. Clause 15.5.3 obliges the RFS to allow an employee to return home 'wherever possible' but otherwise requires 'suitable accommodation' to be provided by the RFS.
74. The effect of cl 15.5.4 is that where 'returning home or to other accommodation is not possible or practical' and the employee is required to 'camp' the employee will receive the relevant camping allowances as they apply under the Conditions Award.
75. The Camping and Camping Equipment Allowances contained within the Conditions Award appear within 'Section 4 - Allowances and other matters' while Section 3 of the Conditions Award provides for 'Travel Arrangements'. Clause 34.1 of the Conditions Award provides for when employees will be entitled to the Camping Allowance, cl 34.2 stating that 'an employee shall be paid an allowance for the expenses incurred in camping as follows: …'
76. It is plain from the text of cl 34 of the Conditions Award that the Camping Allowance is intended to compensate employees for the expenses that they incur when they are required to camp. The fact that the Camping Allowance is payable whether any such expense have actually been incurred does not detract from this purpose.
77. In the context within which it appears, there is no basis upon which it can be deduced that the Camping Equipment and Camping Allowances are intended to compensate employees for loss of amenity associated with the requirement to camp, as was submitted by the notifier (see Tcpt, 20 July 2020, p 42(38)-(41)). Where an employee is camping in a remote location, these expenses may include, for example, specialised clothing. During the hearing of the matter, the respondent submitted that an employee would not be entitled to the Camping Allowances and at the same time, the conditions provided under Section 3 of the Conditions Award and in particular, cl 26 - Travelling Compensation for items such as meals. The notifier contended that RFS employees would be entitled to the provision of meals pursuant to cl 15.5.1. and 15.5.2 of the RFS Award whether they are camping or not.
78. When accommodated at base camps, RFS employees do not incur expenses additional to what they would expend if they were accommodated in a hotel arrangement. The evidence before the Commission was such that employees accommodated at base camps are provided with all meals and importantly, have the benefit of cl 26.1 of the Conditions Award which provides that all their travel expenses will be met.
79. The notifier submitted that the Commission should give a broad definition of what it is to 'camp' because the intention of the parties in moving the camping provisions from the RFS Award to the Conditions Award in 2009 was to retain the same conditions and by extension, definitions of 'camping' as contained in the PS IR Guide.
80. The PS IR Guide does not define what is an established and non-established camp. Instead it sets out prescriptively the responsibilities of the agency when accommodating employees in either established and non-established camps. Without setting out the relevant Sub-Chapter in full (Sub-chapter 7.2), the PS IR Guide provides that in the context of an established camp, the relevant agency must provide each employee required to camp with accommodation in single cubicles fitted with various features including, ceiling and lining; a bedstead, mattress and pillow; a timber floor and floor covering; a door and movable window of reasonable dimensions both fitted with a gauze screen; a table or a suitable substitute; a seat and a wardrobe; artificial lighting: and a suitable heater if required. The PS IR Guide provides that each cubicle must be lockable and there are specific provisions for washhouses, sanitary requirements, drainage, garbage and set up of a kitchen and utensils to be provided (whether in an established camp or not). Interestingly in the context of this dispute, one of the eleven utensils that must be provided is a fire extinguisher.
81. The requirements of a non-established camp envisages the accommodation of more than one person in a tent, but require a floor, gauze covering on windows or openings, and for each employee: a camping bed mattress and pillow; mosquito net; and a heavy-duty torch and gas lantern. In addition, they must be provided with a tent of adequate dimensions as required by the employee for equipment storage, work, recreation and food preparation: folding chairs and table; utensils box; food box; portable refrigerator and gas cylinder; portable stove with wind guard and gas cylinder; camping oven; adequate water containers; washing up basin; clothes line and pegs; tarpaulins; spade; axe; portable heater with gas cylinder; portable shower: and first aid kit (medium industrial kit).
82. There are a number of requirements placed upon an agency by the PS IR Guide in respect of established and non-established camps which would likely have no utility in the context of an RFS base camp. Although base camps can be different and are not always set up entirely in accordance with the Base Camp Manual, they are unique to the operations of the RFS and are neither established nor non-established camps as those expressions can be understood from the requirements contained in the PS IR Guide. Both the RFS Award and the Conditions Award envisage deviation in conditions of employment from the later award, with the industry specific award arrangements taking precedence to the extent of any inconsistency: see [22]-[23] above. In short, the PS IR Guide does not assist with understanding whether RFS employees are required to camp when staying in a base camp.
83. In my view, the phrase 'camping' was not intended to cover the circumstances of a base camp arrangement where all expenses are met, food is provided and other amenities are accommodated. The notifier has not put forward a convincing case that demonstrates the Camping Allowances are for anything other than expenses incurred.
84. It is also relevant that the RFS Award and Conditions Award operate to ensure that RFS employees when accommodated at base camps are in fact compensated for the expenses that they incur because they are not able to return home. In fact, RFS employees are entitled to all travel and associated expenses, properly and reasonably incurred pursuant to cl 26.1 of the Conditions Award and are able to receive an incidental allowance of $19.05 per day to allow for purchase of items such as toiletries: Cl 26.8.1(b) of the Conditions Award; see also Ex R1 at [13] and Ex R3 at [30].
85. For these reasons, I decline to make the recommendations and or [sic] directions sought by the notifier as set out above at [62].
86. Although I have formed the view that neither the Camping nor the Camping Equipment Allowances are payable to RFS employees when staying at base camp because they are not required to camp, I observe that absent the reasoning above, there would have been no evidentiary basis for the Commission to make a recommendation or direction requiring payment of the Camping Equipment Allowance. The notifier did not adduce any evidence of an employee being required to bring 'Camping Equipment' such as a swag and a sleeping bag and while the notifier clarified at the hearing that they did not seek a specific finding with respect to the evidence before the Commission, I reject the notion that items such as toiletry bags and thongs constitute 'camping equipment', especially where RFS employees are able to claim and [sic] incidental allowance intended to compensate for such items: see Tcpt, 20 July 2020, p 44 (50)-(51) and Ex R1 at [13].
87. That is not to say that the RFS employees should not be entitled to an allowance for the loss of amenity that they experience when accommodated on base camp. This is not a matter before the Commission in these proceedings and I make no findings in respect of the merits of that claim, though I note that such a claim has been made in other proceedings currently before the Commission and remains a live issue.
88. It is evident from these proceedings that cl 15 of the RFS Award is ambiguous in terms of its application to RFS employees accommodated in base camps and should be modernised at the first available opportunity.
89. For the reasons contained in this decision, I decline to make the recommendations and/or directions sought by the notifier.
Order
90. For the reasons contained in this decision I make the following Order:
(1) The application is dismissed."
[3]
The Appeal
The matters appealed against were identified in the Appeal as:
"(a) The Commissioner's decision that RFS employees required to stay overnight at an RFS Base Camp are not 'required to camp' for the purposes of clause 15.5.4 of the RFS Award and thereby entitled to payment of the camping allowance in clause 34 of the Conditions Award and/or camping equipment allowance in clause 38 of the Conditions Award.
(b) The Commissioner's decision that 'suitable accommodation' for the purposes of clause 15.5.3 and 'other accommodation' in clause 15.5.4 of the RFS Award can include 'camping' and that an RFS employee can be required to stay overnight at an RFS Base Camp even though it is possible and practical for the employee to stay at other accommodation.
(c) The reasons for the Commissioner's decision are referred to at paragraphs 46 to 61 and 62 to 89 of the Decision."
The Appeal also contained the following:
"F. The questions raised by the appeal are:
1. Whether the Commissioner erred in finding that RFS employees required to stay overnight at an RFS Base Camp when performing work in connection with a major incident are not 'required to camp' for the purposes of clause 15.5.4 of the RFS Award and thereby entitled to payment of the camping allowance in clause 34 of the Conditions Award and/or camping equipment allowance in clause 38 of the Conditions Award?
2. Whether the Commissioner erred in finding that the payment of a camping allowance in accordance with clause 15.5.4 of the RFS Award is limited by reference to a requirement that it is payable only when the type of camping involves the incurring of expenses in the course of camping?
3. Whether the Commissioner erred in finding that 'suitable accommodation' for the purposes of clause 15.5.3 and 'other accommodation' in clause 15.5.4 of the RFS Award can include 'camping' and that an RFS employee can be required to stay overnight at an RFS Base Camp even though it is possible and practical for the employee to stay at other accommodation?
4. Whether the Commissioner erred in failing to find that RFS employees performing work in connection with a major incident can only be required to camp for the purposes of clause 15.5.4 of the RFS Award, including being required to stay overnight at an RFS Base Camp, where returning home or the provision of other accommodation is not possible or practical?
5. Whether the Commissioner erred in finding that RFS employees required to stay overnight when performing work in connection with a major incident are not required to be provided with accommodation of the standard referred to in clause 26.3 of the Conditions Award where such accommodation is available and [sic - at] the particular centre or location?
G. Reasons why leave to appeal should be granted:
1. The Commissioner's finding that RFS employees when staying at base camps 'are not required to camp' is manifestly wrong.
2. The appeal raises important issues in relation to the interpretation of awards, in particular, the approach to be adopted to the resolution of ambiguities and inconsistencies between different provisions of the same or related awards.
3. The appeal deals with significant entitlements of RFS employees engaged in important work having significant public benefit in responding to major incidents, including major bush fire events.
4. The outcome of the decision of the Commissioner gives rise to an injustice given that employees required to stay overnight at an RFS Base Camp are entitled to no additional payments or entitlements.
H. Grounds of the appeal are:
1. The Commissioner erred in finding that RFS employees required to stay overnight at an RFS Base Camp when performing work in connection with a major incident are not 'required to camp' for the purposes of clause 15.5.4 of the RFS Award and thereby entitled to payment of the camping allowance in clause 34 of the Conditions Award and/or camping equipment allowance in clause 38 of the Conditions Award.
2. The Commissioner erred in finding that the payment of a camping allowance in accordance with clause 15.5.4 of the RFS Award is limited by reference to a requirement that it is payable only when the type of camping involves the incurring of expenses in the course of camping.
3. The Commissioner erred in finding that 'suitable accommodation' for the purposes of clause 15.5.3 and 'other accommodation' in clause 15.5.4 of the RFS Award can include 'camping' and that an RFS employee can be required to stay overnight at an RFS Base Camp even though it is possible and practical for the employee to stay at other accommodation.
4. The Commissioner erred in failing to find that RFS employees performing work in connection with a major incident can only be required to camp for the purposes of clause 15.5.4 of the RFS Award, including being required to stay overnight at an RFS Base Camp, where returning home or the provision of other accommodation is not possible or practical.
5. The Commissioner erred in finding that RFS employees required to stay overnight when performing work in connection with a major incident are not required to be provided with accommodation of the standard referred to in clause 26.3 of the Conditions Award ·where such accommodation is available and [sic - at] the particular centre or location.
6. Such other grounds as the Commission thinks appropriate.
I. Relief claimed:
1. Appeal allowed.
2. Set aside the decision of the Commissioner at paragraph 85 of the Decision to not make the recommendations and/or directions referred to at paragraph 62(1) of the Decision.
3. Vary the Decision to make a finding in the affirmative and make a recommendation that:
(1) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, the RFS must pay to the employee the camping allowance under clause 34 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 at the non-established rate as specified in Item 4 of Table 1 - Allowances of Part B, Monetary Rates as adjusted in NSW Treasury Circular C2019-03 Meal, Travel and other allowances.
(2) Where an RFS employee is accommodated at an RFS Base Camp in the course of his or her employment, the RFS must pay to the employee the camping equipment allowance under clause 38.2 and/or 38.3 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 at the rate specified in Item 7 of Table l - Allowances of Part B, Monetary Rate as adjusted in NSW Treasury Circular C2019-03 Meal, Travel and other allowances where the employee provides camping equipment or his or her own bedding or sleeping bag.
(3) Where an incident is declared in accordance with clause 15.1 of the Crown Employees (Rural Fire Service) Award and an RFS employee is required to travel and stay over in the course of his or her employment with the RPS, the employee will be allowed to return home or provided with suitable accommodation and may only be requirement to camp where returning home or the provision of other accommodation is not possible or practical.
(4) Where an RFS employee is required to travel and stay overnight in the course of her or her employment, including where an incident has been declared in accordance with clause 15.1 of the Crown Employees (Rural Fire Service) Award, the employee is required to be provided with accommodation in the middle of the range of standard accommodation where available at the centre or location in accordance with clause 26.3 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009."
(Emphasis in original)
The parties relied upon comprehensive written submissions which senior counsel for both parties spoke to at the hearing of the Appeal before the Full Bench.
[4]
Leave to appeal - principles to apply
Section 188 of the Act is in the following terms:
188 Appeals to Full Bench by leave only
(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.
(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.
(4) This section does not apply to an appeal made by the Minister.
The principles governing the grant of leave to appeal in this jurisdiction are well known. These principles were recently restated by a Full Bench of the Commission (Chief Commissioner Kite SC, Commissioner Sloan, Commissioner Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 in the following terms:
"Legal principles to apply
27 An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act.
28 The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated:
'10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal.
11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263:
[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].'
29 In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]:
"12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach.
13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
30 The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles."
We will also apply these principles.
In this matter we have decided to grant leave to appeal. The issue in dispute concerns a significant monetary allowance which is payable to firefighters in certain circumstances. It is, in our opinion, a matter of such importance that, in the public interest, leave should be granted (ss 188(2) of the Act). Further, we are of the opinion that the Decision is affected by error which requires correction.
[5]
Suitable accommodation
We agree with and adopt, without repeating them, the principles of award construction which are established by the authorities cited in the Decision at [16]-[19].
Clause 6 - Conditions of Employment of the Crown Employees (Rural Fire Service) Award (RFS Award) is set out at [22] of the Decision (at [5] above). Sub-clause 6.2 gives primacy to the RFS Award where there may be inconsistencies between that award and the Crown Employees (Public Service Conditions of Employment) Award 2009 (Conditions Award).
Sub-clause 15.5 of the RFS Award is set out at [27] of the Decision. Clause 26 of the Conditions Award is set out at [28] of the Decision (extracted at [5] above).
We reproduce again the observations of the Commissioner at [51] of the Decision:
"…There is, in my view, no basis or reason the Commission would interpret that cl 26.3 of the Conditions Award applies in the context of cl 15.5.4 of the RFS Award. The plain words of the cl 15.5.4 place an obligation upon the respondent in the context of a major incident wherever possible, either to allow their employees to return home; or otherwise provide 'suitable accommodation'. It is clear on the face of both the RFS and Conditions Award that the RFS Award is to have primacy and it is neither necessary nor appropriate to read into cl 15.4.4, the obligations contained in the Conditions Award regarding the style of accommodation that may be deemed 'suitable'."
We assume the reference to "cl 15.5.4" in this passage was intended to be a reference sub-cl 15.5.3 because it is that provision of the RFS Award, not cl 15.5.4, which places the obligation on RFS in the context of a major incident, wherever possible, to either allow its employees to return home or, otherwise, provide "suitable accommodation".
We do not see an inconsistency between sub-cl 15.5.3 of the RFS Award and sub-cl 26.3 of the Conditions Award such that the terms of the RFS Award preclude the operation of those of the Conditions Award. The obligation imposed on RFS by sub-cl 15.5.3 of the RFS Award is to allow employees to return home or to provide them with "suitable accommodation". There is no reason why what is "suitable" may not be informed by sub-clause 26.3 of the Conditions Award, which provides that the overnight accommodation to be provided "shall be the middle of the range standard, referred to generally as three star or three diamond standard of accommodation" where such accommodation is "available at a particular centre or location".
However, it is important to observe that sub-cl 26.3 of the Conditions Award does not impose an absolute obligation on RFS to provide employees with three star/diamond accommodation in all circumstances. The accommodation must be "available at a particular centre or location". Further, to the extent that the reference to "suitable accommodation" in sub-cl 15.5.3 of the RFS Award might contemplate three star/diamond accommodation pursuant to sub-cl 26.3 of the Conditions Award, such accommodation need only be provided "wherever possible".
As recognised by the Commissioner, the decision by RFS to establish a base camp may itself suggest that the provision of three star/diamond accommodation is not possible. In this respect, we have had regard to that part of the evidence of Rebel Talbert, Assistant Commissioner, Director Community Resilience, RFS, which is extracted in the Decision at [55]. That evidence makes it sufficiently clear that when the decision is made to establish a base camp, it is unlikely that three star/diamond accommodation is going to be available at the "particular centre or location".
Sub-clause 15.5.4 then adds a further caveat of practicality. That is, it provides for a camping allowance to be paid to employees where "returning home or to other accommodation is not possible or practical and the staff members are required to camp". The sub-clause clearly contemplates a scenario in which RFS requires employees to camp, having determined that providing "other accommodation" is not practical. The matters set out at [55] and [56] of the Decision are all relevant to the question of what is "practical".
The recommendation sought by the appellant at first instance, which is set out in the Decision at [45], recognises that there will be circumstances where it will not be "possible or practical" for RFS to provide employees with a three star or three diamond level of accommodation. As stated, the circumstances which cause RFS to decide to establish a base camp are likely to be such circumstances. We would add that the decision to establish a base camp, and the determination of whether the provision of other accommodation is practical or not, are properly matters within the discretion of the Commissioner of the RFS exercising his functions under s 44 of the Rural Fires Act 1977, which is reproduced at [26] of the Decision (see [6] above).
Sub-clause 26.3 of the Conditions Award stands separately from, and is not inconsistent with, either sub-cll 15.5.3 and 15.5.4 of the RFS Award. The obligation to provide employees with three star/diamond accommodation would apply, for example, where the decision to establish a base camp has not been made and the employees are to be accommodated at a centre or location where there is available three star/diamond accommodation as well as accommodation of a lesser standard. In those circumstances, sub-cl 26.3 requires that the employees be provided with the three star/diamond accommodation.
[6]
Do the camping allowances in the Conditions Award apply to RFS employees accommodated at a base camp?
It is not in dispute that employees of RFS are entitled to the benefit of cll 34 and 38 of the Conditions Award in circumstances where the terms of those provisions would have application. The Crown Employees (Rural Fire Service Salaries and Conditions of Employment 2003) Award contained at cl 8 Allowances: Camping Allowance and cl 9 Allowances: Camping Equipment Allowance provisions in virtually identical terms as cll 34 and 38 Camping respectively of the Conditions Award and their predecessor provisions, for example, cl 36 Camping Allowance and cl 40 Camping Equipment Allowance of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2006. The provisions were deleted when the RFS Award was made in 2009 on the basis that they were "Duplicated in Conditions Award".
It appears from the Decision at [77]-[86] that the Commissioner accepted the respondent's submissions on the matters and determined that cll 34 and 38 of the Conditions Award do not apply to RFS employees when they are provided with accommodation at base camps. For the reasons below, we are of the opinion that in so determining, the Commissioner committed appealable error which requires correction.
Sub-clause 15.5 of the RFS Award is in the following terms:
"15.5 Provision of Meals and Accommodation whilst Working on Incident
15.5.1 The Rural Fire Service will generally provide meals, including breakfast, lunch and dinner, and provide supper for staff members working night shift.
15.5.2 If no meal is supplied, a payment of an amount per meal as set out in the Crown Conditions Award shall be made.
15.5.3 Wherever possible, staff members will be allowed to return home or the Rural Fire Service will provide suitable accommodation.
15.5.4 Where returning home or to other accommodation is not possible or practical and the staff members are required to camp, they will be paid the appropriate allowance as set out in the Conditions Award."
The issue for determination, both at first instance and on appeal, is whether employees who are accommodated in a RFS base camp are "required to camp" as that term is used in sub-cl 15.5.4 and are, therefore, entitled to be paid the "appropriate allowance as set out in the Conditions Award".
Clause 34 Camping Allowances of the Conditions Award is in the following terms:
"34.1 Except as provided in an Award, Agreement or Determination, payment of the camping allowance applies to an employee who is:
34.1.1 In receipt of a camping equipment allowance under clause 38, Camping Equipment Allowance of this award; or
34.1.2 Provided with camping equipment by the Department; or
34.1.3 Reimbursed by the Department for the cost of hiring camping equipment.
34.2 When required to camp in connection with the performance of official duties, an employee shall be paid an allowance for the expenses incurred in camping as follows:
34.2.1 The daily rate specified in Item 4 of Table 1 of Part B Monetary Rates for all expenses; and
34.2.2 Where required to camp for more than 40 nights in any calendar year - that daily rate plus the additional rate for that year as specified in Item 4 of Table 1 - Allowances of Part B, Monetary Rates
34.3 Where the Department Head is satisfied that it was not reasonable in the circumstances for the employee to camp, an employee who is entitled to a camping allowance shall be paid a travelling allowance under clause 26, Travelling Compensation of this award, instead of the camping allowance.
34.4 An employee who is paid a remote areas allowance under clause 39, Allowance for Living in a Remote Area of this award is entitled to continue to receive that allowance while receiving a camping allowance."
It is readily apparent that there is an internal inconsistency in this award provision. Sub-cl 34.2 refers to "an allowance for the expenses incurred in camping". However, sub-cll 34.1.1, 34.1.2 and 34.1.3 make it clear that the camping allowance is payable in situations where the employee incurs no expense in camping. Further, as sub-cll 15.5.1 and 15.5.2 of the RFS Award make clear, with respect to meals, for example, when working on an "Incident", employees do not incur any expenses. It was not suggested by the respondent that such employees who are required to camp, but not in a base camp, would only be entitled to be paid a camping allowance if they incurred expenses such as meal expenses.
The respondent has not submitted, either at first instance or on appeal, that RFS employees are not entitled to the benefit of cll 34 and 38 of the Conditions Award if the circumstances described in those provisions apply. The gravamen of the respondent's submission at first instance was that, when "staying at RFS Base Camps, RFS staff members do not incur any expenses, as NSW RFS base camps are fully equipped with amenities. Staff members are not required to provide any camping equipment. Bedding and sleeping bags are also provided by NSW RFS, and staff members can keep the sleeping bag when they have completed their deployment." (Respondent's Outline of Submissions of 9 May 2020, Appeal Book Vol. 1, tab 3, para 16). It was further put that "RFS staff who are accommodated at Base Camps are clearly not required 'to camp' in the sense that they are not required to, inter alia:
1. set up their own tents;
2. prepare their own meals;
3. concern themselves with any cleaning in respect of showers or toilets;
4. concern themselves with any waste water or sewerage issues; or
5. demobilize or clean the facilities after they have stayed at the RFS Base Camp." (Respondent's Outline of Submissions of 9 May 2020, Appeal Book Vol. 1, tab 3, para 32).
We note that this latter submission makes no reference to employees incurring expenses whilst camping. The focus of the submission is personal exertion of the employees in setting up and maintaining the camp, not the incurring of expenses.
During the hearing of the Appeal before the Full Bench, senior counsel for the respondent commenced her oral submissions as follows:
"Commissioner Webster carefully reasoned and correctly determined that employees accommodated in an RFS base camp where they are provided with all amenities are not entitled to a camping allowance or a camping equipment allowance and it can't be extrapolated would be entitled to a bedding allowance. The reason being that RFS employees in this circumstance under a cl 15 incident are not so entitled because they are provided with all amenity. Both the RFS award to which I'll take and the conditional award are structured in the following way, when dealing with allowances they use the ordinary dichotomy, if accommodation or meals are provided then no allowance arises, if an employee is required to provide their own accommodation, equipment, meals then and incur expense and effort then an entitlement to allowance arises."
Later in her submissions, senior counsel stated:
"Alternatively we say to the extent whilst not required the Full Bench expresses a view as to the meaning of required to camp, we say does not include where an employees accommodated within RFS base camps because required to camp promotes within the specific award regime being required to do something, expend effort which is to form a camp for themselves and to provide his or her own accommodation in circumstances in which he or she has not been provided with accommodation."
We were not taken to any provision in either the RFS Award or the Conditions Award which supports such a construction of the term "required to camp".
In response to a question from the Chief Commissioner about the operation of sub-cl 34.1 of the Conditions Award, senior counsel for the respondent stated:
"We say that that's not the way that you read it because the way that you - what provided with camping equipment by the Department is provided with a tent, off you go, you're not going to be provided with catered accommodation, you're not going to be provided with all amenities that you are provided within a base camp. You're effectively going to be provided with equipment, it doesn't say 'all equipment' it says 'provided with equipment['] and you have to thereafter go and set up camp and you will necessarily incur expenses as a result of it."
Senior counsel did not identify what the necessarily incurred expenses would be but, presumably, they would not be meal expenses. It also appears to have been conceded that, contrary to what was put in opening, being provided with a tent does not disentitle employees to the camping allowance.
Later in the proceedings, the following exchange occurred:
"MURPHY C: What I'm struggling with Ms Raper, is that this idea that the example you use of an employer [sic - employee] being provided with a tent and told to go and set it up what expense does that employee incur for which the camping allowance is compensation?
RAPER: What we say is it's both, it's twofold. It's both for the fact of required to extend [sic - expend] effort, we say, and it's also by virtue of the fact that as was found by Commissioner Webster that necessarily where a person needs to be provided with some things they are not provided with everything, and so they then have to incur additional expense by reason of that.
MURPHY C: Well, if an employee was required to camp out at an established camping area with tents established, which is not an RFS base camp, but just a normal camping area and they don't incur any expense at all and they're not required to set the tent up, do they get the allowance?
RAPER: Well, again though Commissioner that will be a question of fact that arises in the particular circumstance. The question that is before you in terms of here is about a particular circumstance which is where you are being asked to determine whether with respect to a base camp where you have specific evidence about all of the amenity that is provided to employees whether with respect to that that constitutes the provision of suitable accommodation within the meaning of cl 15.
MURPHY C: But isn't the real question we're required to consider is what is meant by the words in 15.5.4 'staff members are required to camp',…"
Senior counsel disagreed that the question to be determined by the Commission, both at first instance and on appeal, was whether employees who are provided with accommodation in a RFS base camp are "required to camp" and, therefore entitled to be paid "the appropriate allowance as set out in the Conditions Award". Commissioner Webster framed the question as follows: "Do the camping allowances contained in the Conditions Award apply to RFS employees accommodated at a base camp?" We agree with the framing of the issue in this way, which can only be resolved by answering the question: "Are such staff members 'required to camp'?".
The Conditions Award contains two camping allowances: $31.55 per night for an "Established camp" and $41.70 for a "Non established camp". We were taken to nothing by the respondent that would lead to a conclusion that an employee who is required to camp in an established camping ground with permanent shower and toilet facilities which the campers are not required to clean or maintain and with cooking facilities or the capacity to purchase food, would not be entitled to be paid the camping allowance for an established camp. We do not accept that a requirement to erect a tent which has been provided by the employer distinguishes such an employee from one camping in a RFS base camp. Both are "required to camp" and both are entitled to be paid a camping allowance. In this respect, we agree with the following submission that was put by senior counsel for the appellant:
"To the extent that it was said that one should read into the words 'required to camp' a requirement to in some way form the camp it is, as I have already submitted, contrary to the ordinary meaning of the words, that is why someone who is required to stay in a tent has not been required to camp if they don't put the tent up escapes us as a matter of ordinary language. It would also lead to an absurdity. Say a group of RFS employees is required in order to fight a fire to camp in the bush, separated from any population centre but they're provided with tents for that purpose and two of the employees go ahead, as a group of ten two of the employees go ahead and set up all the tents, do those two employees get the camping allowance; do the other employees [who] are required to sleep in those tents not get the camping allowance? It's very difficult to understand the basis upon which the submission could be advanced that camping depends upon whether you set up the tent. That leads to its own absurdity. And perhaps it arises from the history of the provisions."
We are reinforced in reaching this conclusion by the unchallenged evidence of Bruce Hansen, part of which is set out in the Decision at [69] (see [6] above). The disabilities associated with camping at the Glenn Innes Base Camp in a tent with 12 other people are likely to be far greater than camping in a one person tent in an established camping ground.
In holding that employees who are accommodated in a RFS base camp are "required to camp" as that term is used in sub-cl 15.5.4 of the RFS Award, we are reinforced by the use of the term "required to camp" in paragraph 7.2.1.2 - Accommodation and facilities in part 7.2.1 - Established camps - responsibilities of the agency in the Public Service Industrial Relations Guide (part of exhibit "BP-1" to exhibit A6, Appeal Book, Vol. 1, tab 17, p720). Paragraph 7.2.1.2 contains the following:
"1. The agency must provide each employee required to camp with accommodation in single cubicles. Each cubicle is to be fitted with the following:
- ceiling and lining;
- a bedstead, mattress and pillow;
- a timber floor and floor covering;
- a door and movable window of reasonable dimensions, both fitted with a gauze screen;
- a table or a suitable substitute;
- a seat and a wardrobe;
- artificial lighting; and
- a suitable heater if required.
2. Each cubicle must be lockable.
3. The agency must provide a lined bathhouse fitted with one shower for every 10 employees and one wash basin for every five employees. Both hot and cold water must be available for showers and washbasins."
(Emphasis added.)
If employees who are provided with these types of facilities in an established camp can be said to be "required to camp", we are of the opinion that employees being accommodated in RFS base camps can also be said to be "required to camp" and are, therefore, entitled to be paid a camping allowance pursuant to sub-cl 34.2 of the Conditions Award. The question becomes whether, pursuant to sub-cl 34.2.1, they are entitled to the "established camp allowance" or the "non-established camp allowance" set out in Item 4 of Table 1 of Part B Monetary Rates.
RFS accepted, in the proceedings at first instance, that RFS base camps are not "established camps" but did not accept that RFS base camps are "non-established camps" [1] . Despite the position taken by RFS, it is our view on the evidence before the Commission that RFS base camps, once operational, are established camps. It follows that the allowance for established camps is the appropriate allowance for employees accommodated in RFS base camps.
On the evidence before the Commission, employees accommodated in RFS base camps do not provide camping equipment and would not, therefore, be entitled to be paid the camping equipment allowance pursuant to sub-cl 38.2 of the Conditions Award. They would, however, be entitled to be paid the allowance provided for in sub-cl 38.3 of the Conditions Award if they provide their own bedding and sleeping bag while camping on official business, including while camping in a RFS base camp.
[7]
Orders and Recommendations
The Full Bench makes the following orders:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision of Commissioner Webster of 21 May 2021 in this matter is quashed.
The Full Bench makes the following recommendations:
1. We recommend that where an incident is declared in accordance with sub-cl 15.1 of the Crown Employees (Rural Fire Service) Award and a Rural Fire Service (RFS) employee is required to travel and stay overnight in the course of his or her employment with the RFS, and the RFS has not established a base camp, the RFS provide the employee with middle of the range standard accommodation wherever possible and practical in accordance with sub-cl 15.5 of the Crown Employees (Rural Fire Service) Award and sub-cl 26.3 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
2. We recommend that the parties confer with a view to identifying, quantifying and paying any amounts that might be owing to employees as a result of the determinations set out at [44]-[46] above.
Chief Commissioner Constant, Commissioner Murphy, and Commissioner Sloan
[8]
Endnote
Paragraphs 33 - 35 of the Respondent's Outline of Submissions at first instance, AB Vol, Tab 3, pp 100 - 101.
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: 16 December 2021
Parties
Applicant/Plaintiff:
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales
Respondent/Defendant:
Industrial Relations Secretary on behalf of the Department of Communities and Justice