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

Industrial Relations Commission (NSW)|2021-11-23

decision

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).

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 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.

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.

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.

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.

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

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

Rural Fire Act 1997(NSW)

Industrial Relations Act 1996(NSW)ss 130, 136, 163, 175, 188

[1999] NSWIRComm 449

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