Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary, on behalf of the NSW Rural Fire Service

Procedural History

1. The matter was the subject of a compulsory conference on 2 May 2022 and a further conciliation on 10 June 2022.
2. The Dispute was not resolved, and it was set down for hearing with directions being made for the filing and serving of details of the relief sought, evidence and outlines of submissions.
3. In accordance with the directions the notifier filed a document setting out the relief sought, which is in the form of a series of directions or in the alternative, recommendations. They subsequently filed evidence of eight witness statements and an affidavit and written submissions.
4. The respondent filed its outline of submissions and two witness statements on 2 November 2022 and a further two witness statements on 14 November 2022.
5. The notifiers filed its' reply materials on 2 December 2022, which comprised of one affidavit, six witness statements and an outline of submissions in reply.
6. The hearing took place on 12 and 13 December 2022, with the notifier calling evidence from the following witnesses, some of whom were cross examined: 1. Mr Nicholas Player, an employee of the notifier; 2. Ms Lisa Edmonds, an employee of the respondent; 3. Mr Kenneth Neville, an employee of the respondent; 4. Mr Bradley Stewart, an employee of the respondent; 5. Ms Jillian Butler, an employee of the respondent; 6. Mr Ben Plummer; an employee of the respondent; 7. Mr Daniel Ainsworth, an employee of the respondent; and 8. Mr James Killen, an employee of the respondent.
7. The respondent called evidence from the following witnesses, all of whom apart from Mr Mouwad were cross examined: 1. Ms Narelle Koteff, an employee of the respondent; 2. Mr Peter McKechnie, an employee of the respondent; 3. Mr Jayson McKellar, an employee of the respondent; and 4. Mr Raymond Mouwad, an industrial relations advisor.
8. At the conclusion of the evidence, the notifier handed up number of documents including further written submissions regarding the meaning of the work "directed" for the purposes of the dispute as well as revised set of recommendations which it sought.
9. The recommendations were marked for identification as MFI 1 and are as follows: 1. Pursuant to section 136(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission recommends that the respondent apply the Crown Employees (Rural Fire Service) Award (RFS Award) and the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Conditions Award) in accordance with the following principles: a. In respect of additional hours worked between 7:30am and 6pm Monday to Friday (excluding public holidays): i. Employees who are not in receipt of the ACA in lieu of programmed overtime are entitled to hour for hour time off (local arrangement or LA time) other than in respect of hours which are compensation by cl 13 of the RFS Award (After Hours Allowance) ii. Employees who are in receipt of the ACA in lieu of programmed overtime are entitled to hour for hour time off (local arrangement or LA time) other than in respect of any hours that are programmed overtime. iii. An entitlement to be overtime arises when clause 15 of the RFS Award applies in accordance with the terms of that clause. b. In respect of hours worked before 7:30am or after 6pm Monday to Friday (excluding public holidays): i. An entitlement to overtime does not arise in respect of: 1. Time worked without approval or direction 2. Programmed overtime in respect of employees who receive the ACA in lieu of programmed overtime. 3. Time worked which is compensated by cl 13 of the RFS Award (After Hours Allowance), except in accordance with cl 13.8. 4. Time worked which is compensated by cl 92 of the Conditions Award (on-call), except in accordance with cl 92.1.2. ii. An entitlement to overtime does arise in respect of: 1. Time worked with approval or by direction. 2. When clause 15 of the RFS Award applies in accordance with the terms of that clause. c. In respect of hours worked on a weekend or a public holiday: i. An entitlement to overtime does not arise in respect of: 1. Time worked with approval, but not by direction. 2. Time worked which is compensated by cl 13 of the RFS Award (After Hours Allowance), except in accordance with cl 13.8. 3. Time worked which is compensated by cl 92 of the Conditions Award (on-call), except in accordance with cl 92.1.2. ii. An entitlement to overtime does arise in respect of: 1. Time worked by direction 2. Time worked where overtime has otherwise been approved. 3. When clause 15 of the RFS Award applies in accordance with the terms of that clause. d. Employees who do not receive an ACA in lieu of programmed overtime: i. Can be directed to work before 7:30am or after 6pm Monday to Friday or on public holidays or weekends and are entitled to overtime. ii. Can request to work before 7:30am or after 6pm Monday to Friday, and where that request is approved, are entitled to overtime. iii. Can request to work on weekends and, irrespective of whether that request is approved, are not entitled to overtime. e. Employees who do receive an ACA in lieu of programmed overtime: i. Can be directed to work programmed overtime, and are not entitled to overtime in respect to that work. ii. In respect of hours which are not programmed overtime: 1. Can be directed to work before 7:30am or after 6pm Monday to Friday or on public holidays or weekends and are entitled to overtime. 2. Can request to work before 7:30am or after 6pm Monday to Friday, and where that request is approved, are entitled to overtime. 3. Can request to work on weekends and, irrespective of whether that request is approved, are not entitled to overtime. f. 'Overtime' encompasses both an entitlement to overtime pay (in accordance with cl 90.2 of the Conditions Award or leave in lieu of overtime in accordance with cl 96 of the Conditions Award, to be elected between by the employee in accordance with cl 96.2 of the Conditions Award). g. A "direction" means both (1) a request from the RFS to an employee and (2) work which is performed as a requirement of the employee's role. h. "Approval" means a request from an employee which has been approved by the RFS. i. "Programmed overtime" means overtime activities which satisfy the following three conditions (1) are activities that are identified in advance of an employee receiving the ACA; (2) are expected to be worked within a year and (3) are pre-planned and scheduled.
10. The notifier made further oral submissions following which the respondent made their oral submissions in reply.
11. The parties were given leave to file further written submissions which the respondent did on 23 December 2022 and the applicant filed its' written submissions in reply on 9 January 2023.

Relevant facts

1. The respondent was established by the Rural Fires Act 1997 (NSW) and assumed the responsibilities previously exercised by local government.
2. Work now performed by employees of the respondent was previously performed by Fire Control Officers who were employed by local government entities. On 1 July 2001, the employment of these 300 odd employees from over 100 local councils transferred to the respondent and joined the existing 150 employees of the respondent.
3. Prior to the transfer of the employment of the local government employees, the notifier and the respondent negotiated the terms of an interim consent award which was made by Schmidt J on 26 June 2001. This Award was an earlier version of the RFS Award which applied in addition to the earlier version of the Conditions Award.
4. In this first version of the RFS Award, overtime was defined in clause 3 as follows: "Overtime" means all time directed to be worked before 7am or after 6pm on a normal workday between Monday to Friday, or on weekends and Public Holidays at the direction of the Commissioner.
5. On 31 July 2001 Justice Schmidt rescinded the interim award and made the Crown Employees (Rural Fire Service 2001) Award. In this version the definition of overtime varied to the current wording in clause 7.9 of the RFS Award.
6. The uncontested evidence of Mouwad, who lead the negotiations for the respondent in relation to the making of the award was that the requirement for the work to be "directed" was inserted into the definition of Overtime to deal with the practise whereby some staff were working overtime without pre-approval/authorisation and seeking to claim overtime payments.
7. The RFS Award was then the subject of several variations and reviews, however, the definition of overtime the subject of this dispute did not change.
8. The work performed by the relevant members of the notifier subject of this dispute includes: 1. Supporting volunteer members with resourcing, training, preparation, and internal brigade management which may include arranging and attending volunteer training, brigade meetings and medal ceremonies. 2. Supporting volunteer members in relation to operational work, including incident response and risk mitigation and incident response. 3. Area Mitigation, who supplement volunteers in performing mitigation work such as backburning and cutting fire trails, logistical driving duties and operational support duties on weekends including maintenance of Large Air Tanker (water bomber) bases. 4. Headquarters, which provides support including senior management, human resources, communications and other supp and legislative functions.
9. Each of the notifier's witnesses typically had normal hours that they worked which was typically Monday to Friday with the start time varying from 8.30-9.00amand finishing any where from 4.00-5.00pm. In addition, they all had worked, with varying levels of occurrence, outside of the span of hours in clause 7.9 of the RFS Award.
10. Those who perform work outside of the hours outside of the cl 7.9 hours are rarely paid overtime for this work and apart from some members who receive an annualised conditions allowance ("ACA"), they are usually provided time off in lieu at single hour for hour under a "Local Arrangement", commonly referred to as a "LA".
11. It is this failure of the respondent to pay the notifier's members at overtime rates which is at the heart of the dispute.

Notifier

1. As provided above, the notifier sought in resolution of the dispute, that the Commission make a series of recommendations under ss 13(6)(1)(a) of the Act as detailed above.
2. The notifier made the following submission concerning the utility of the Commission making the recommendation sought even if the respondent threatened that it would not follow it: The recommendation sought by the notifier seeks to clarify the operation of the Awards and address any failure by the respondent to meet its award obligations. The notifier and respondent are experienced industrial parties. Noting the experience and resources of the respondent, there is no doubt that is capable of giving effect to the recommendations sought and to work with the notifier to address the implications of any adverse findings and recommendation made by the Commission
3. It was further submitted that the Commission should not countenance the respondent's threat as it undermines the practical ability of the Commission to resolve the industrial dispute and to satisfy its objects under s 3 of the Act. It also amounts to a rejection of the long standing and effective system of conciliation and arbitration described by Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 ("APA") at [62].
4. The notifier submitted that clause 9.10 of the Conditions Award required the respondent to abide by any recommendation made by the Commission in this dispute. Clause 9.10, is part of the grievance and dispute settling provisions of the Conditions Award and is in the following terms: 9.10 The staff member, Association, Department and Secretary shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute.
5. A further submission was made that a recommendation falls within the broad expression 'any order or determination' used in clause 9.10, and the notifier then went to make the following submission: Clause 9.10 does not expand the powers of the Commission or confer a private arbitral power. Rather, it is merely a commitment between the parties that they will give effect of any order or determination of the Commission to resolve the dispute between them. It is a matter for the parties and does not affect the Commission's powers in resolving the dispute.
6. The notifier submitted that the Commission was empowered under s 127 of the Act to provide its' interpretation of the provision and make the recommendations sought by the notifier consistent with the interpretation.
7. Starting with the language used in the Awards, the notifier points to the use of various expressions to describe overtime which in the RFS Award at cl 7.9 is "approved" and "authorised"; and in the Conditions Award the following expressions are used: 1. Clause 87.13.2-"authorised overtime"; 2. Clause 88.2- "directed overtime"; 3. Clause 90.2.1- "directed overtime"; 4. Clause 93.2- "required to work overtime"; 5. Clause 94.1.1-"directed overtime"; 6. Clause 95-"directed overtime"; and 7. Clause 99.2- "where overtime is required to be worked"
8. The notifier then submitted that the language used in the Awards evinces an intention that the payment for overtime flows from a requirement that employees perform the overtime work.
9. The notifier refers to a number of authorities which considered the requirement to perform overtime including White v Mrs Murphy's Country Fried Chicken Pty Ltd [1984] AR 794, Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152, Logan v Otis Elevator Company Pty Limited [2001] IRCA 1; 107 IR 253; Telstra Corporation Limited v Peisley [2006] FCAFC 79, Chief Commissioner of Police v Kerley (2008) 171 IR 420, Robinson v Gosford City Council [2008] NSWIRComm 237 Ishak v Air Liquide Healthcare Pty Ltd [2006] NSWIRComm 294 and Wang v Odyssey Trading Pty Ltd (No 2) [2021] FedCFamC2G 363.
10. The notifier then submitted that the following principles fall from those authorities: 1. Overtime is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative (Mrs Murphy's Country Fried Chicken). 2. Where allocated work requires overtime in order that it be completed, then the overtime is impliedly authorised and the employer is obliged to pay it (Maciver). 3. Even if the parties did not at that time view hours worked as including time which would attract penalty rates as overtime and it is only after the event that the legal implications of authorising the working of those hours has become apparent, the approval to work those hours carries with it, the obligation to pay any penalty rates arising from the hours being worked (Otis Elevator Company Pty Limited). 4. The concept of an employee being "required to work overtime" must be understood in light of the circumstances of request and agreement rather than command and includes situations in which an employee separately agrees to work and is thereby given authority to work the hours (Peisley per Wilcox and Conti JJ). 5. An employer and employee may structure their relationship so that overtime is only required by the employer where the employee consents to that overtime (Peisley per Stone J). 6. Implied authorisation may arise in circumstances where the duties required were not capable of being performed during ordinary working hours (Ishak). 7. Employees who volunteer to work overtime and work it are still directed to work the overtime (Kerley). 8. The proper test is that an award provision providing for the payment of overtime for "all time worked by direction" does not require that there be evidence of an express direction or authorisation as it is sufficient that the work is authorised or impliedly directed. (Robinson).
11. In applying these principles, it was submitted that the work performed by employees outside of the hours in 7.9 of the RFS Award is overtime for the following reasons: 1. The overtime work is authorised by implication because the circumstances of the availability of volunteers permit of no alternative manner in which the work can be performed (Mrs Murphy's Country Fried Chicken and Ishak); 2. The work must be done at those times in order that it be completed, then the overtime is impliedly authorised and the employer is obliged to pay for it as overtime (Maciver); 3. The circumstances in which employees are requested by their managers to perform the work and agree to do it, rather than being commanded to do it, are contemplated by the concept of an employee being "required to work overtime" (Otis Elevator Company Pty Ltd per Wilcox and Conti JJ); 4. The fact that overtime is only required by the RFS where the employee consents to that overtime is also consistent with a "requirement to perform overtime" (Otis Elevator Company Pty Ltd, per Stone J); 5. Where the employees volunteer to do the work during those hours it is still overtime as they are directed to do perform the work (Kerley); 6. The absence of an express direction or authorisation does not mean that the work is not authorised or impliedly directed (Robinson); and 7. Just because the parties did not contemplate that the work would attract penalty rates for overtime does not mean that the RFS is freed from the obligation to do so (Otis Elevator Company Pty Limited).
12. Finally, the notifiers position was that all work performed before 7.30am or after 6.00pm on a normal workday between Monday to Friday, or on weekends and public holidays constituted to directed overtime, even if it was performed at that time by the request of the employee.

Respondent

1. In answer to a question posed by the Commission, the respondent stated that they would not follow a recommendation made by the Commission in a form sought by the notifier nor any other recommendation for which it did not agree with.
2. Although the respondent did not tender a proposed form of recommendation or other manner of resolving the dispute under the Act, they did make the following oral submission as to what form a recommendation could be: I accept that. The other thing I was going to say was that a recommendation to assist the parties doesn't necessarily only have to have answers, it can, in effect, require the parties to consider why this shouldn't be the case or why the parties shouldn't give greater consideration to doing X or Y. That which might require, for example, the parties to consider you know, why the awards shouldn't be clear about what the word "direction" means. Here, the Notifier's draft recommendation comes with definitions. We don't accept these definitions as correct. We certainly don't see them as emanating from the text of the award.
3. The respondent rejected the submission that it was bound by clause 9.10 of the Conditions Award to follow any recommendation made by the Commission in relation to this dispute. In broad terms, the respondent put that the powers of the Commission are limited to those set out in the Act and secondly, there is no evidence to support the contention that the respondent agreed under clause 9.10 to be bound by an alleged exercise of private arbitration.
4. As to the requirement to be paid overtime, the effect of the respondent's submission was that not all work performed under clause 7.9 of the RFS Award was required under clause 88.2 of the Conditions Award to be paid at overtime rates. They went on to submit that the only work which is required to be paid at overtime rates, is that which is "directed".
5. The respondent submitted that the cases referred to by the notifier in relation to "directed overtime", were of no assistance as none of them provided cases ascribe any meaning to the phrase.
6. As to "directed overtime", the respondent asserted that it is overtime which is worked following authoritative instruction, command, order or ordnance and made the following submissions as to how this definition works in practise: 25. A manager sends an email to a group of staff asking who is available to attend to various meetings. No member of staff is obliged to attend any particular meeting, but each is able to indicate that they can or cannot attend a particular meeting. A member of staff indicates that they are able and willing to attend a particular meeting, and does so. It cannot sensibly be said that the manager's question constitutes a direction to work overtime in circumstances where there is no obligation on any employee to perform any particular task. 26. If, on the other hand, a manager tells a particular employee that they must carry out a particular task outside hours that would obviously constitute a direction to work overtime.
7. It was also submitted that the above approach was consistent with the parties understanding and the evidence of Mr Mouwad regarding the reason why the requirement for the overtime work to be "directed" was inserted into the RFS Award.

Determination

1. There is no doubt that the Commission has the power to make a recommendation under ss 136(1)(a) of the Act to make a recommendation in arbitration proceedings. It is not binding upon the parties and clause 9.10 of the Conditions Award does not confer power upon the Commission such that a recommendation is binding (see Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038 at [16]).
2. The power is quite clearly a discretionary one and the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales.
3. As recently stated by Walton J in APA, that arbitration was the final stage of resolving an industrial dispute and the result should produce finality (at [53]). In this respect, there must be some utility in making a recommendation which would have the effect of finally resolving the dispute.
4. Walton J also in APA made the following observation at [136] with respect to the making of recommendations under ss136(1)(a): The full thought processes of the Commissioner have generally not been exposed when making a recommendation. I have noticed that there has now been a trend for the Commission to express its reasons for making or not making a recommendation in a formulaic way that creates an impression that it was a considered decision. It is usually undesirable for a Commissioner to create such an impression.
5. In this matter I have some reservations that making of a recommendation would result in the final resolution of the dispute. My reservation is based on the respondent's stated position that it would not follow any recommendation made in this dispute by this Commission that it did not agree with.
6. Notwithstanding the above reservation, I the form of recommendation that I will make is not as prescriptive as that sort by the notifier and should set the basis for what should be constructive negotiations for the resolution of the dispute.
7. In reaching the form of my recommendation, I have reached the conclusion that neither parties' interpretation of the meaning of "directed overtime" which gives rise to the payment of overtime for work performed is correct.
8. The notifiers position that all work performed outside of the hours in cl 7.9 of the RFS Award is "directed" overtime and is to be paid as such irrespective of even if it is at the initiative/request of the employee is contrary to the evidence of Mr Mouwad detailed above as to the reason why such overtime needed to be "directed".
9. The respondent's position that the work is only "directed" if there is an authoritative instruction, command, order or ordnance, runs counter to how modern workplaces operates. Further, if this approach is to be accepted, it may inevitably lead to members of the notifier continuously refusing requests to work overtime until such time they instructed etc to do so in order to receive overtime payment.
10. Having considered the parties submissions and the evidence, I make the following recommendation pursuant to ss 136(1)(a) of the Act: "The parties are to confer with a view to agreeing on the requirements of what work is to be treated as overtime and paid as such for the purposes of cl 7.9 of the Crown Employees (Rural Fire Service) Award 2019 and what work is to be the subject of hour for hour time off (under a local arrangement or LA time). The above requirements should distinguish between the requirement to work the hours as required by the respondent and work performed at the hours at the request of the employee(s)."

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